CWP No. 1626 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1626 of 2009 Date of Decision: September 17, 2009 Sandeep Singh ......Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. R.K.Malik, Senior Advocate with Mr. Ashish Chaudhary, Advocate for the petitioner. Mr.Vivek Lamba, AAG, Haryana. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This petition has been filed for quashing the order dated 22.12.2008 whereby the claim of the petitioner that he was entitled to be placed in category No.2 among the defence personnel has been rejected. The petitioner whose father was a defence personnel killed in action had applied for one of the 4000 posts of Constables advertised in the year 2006. Being a resident of Karnal he had applied for district Karnal where 33 posts were reserved for ex-servicemen/dependents. Vide instructions dated 24.10.78/21.5.79 (Annexure P-3) it was mentioned as follows:- CWP No. 1626 of 2009 2 “a) 5% of the posts to be filled by direct recruitment to Group A & B are reserved for Ex-Servicemen, while 17% of similar posts are reserved for them in Group C & D services under the State Government, Corporations, Semi-Government, Boards etc. The existing reservation in respect of civil posts for ex-servicemen is utilized in the order given below: i) Disable ex-servicemen with disability between 20% to 50%. ii)Upto two dependents of service personnel killed/disabled beyond 50%. iii)Other ex-servicemen. NOTE 2: Those servicemen who are not boarded out of service by the Defence Deptt. On account of their disability but are released in the normal course of released after the completion of their terms and conditions of employment in the army, are not entitled to the priority for filling up civil posts as envisaged above. Their dependents are also not entitled to the said priority. NOTE 3: The dependents will include besides wife/widow dependent sons/daughters. NOTE 4: The aforesaid benefit of reservation will be given till such time as the number of employees belonging to reserved categories in each cadre/grade does not come upto the prescribed percentage. NOTE 5: Reserved posts not filled by the candidates CWP No. 1626 of 2009 3 belonging to reserved categories should be carried forward for two recruitment years. The recruitment year shall mean a calendar year and the two years limit for carry forward of reserved posts shall start from the year in which recruitment is actually made. In the selection, however, the respondents gave preference to ex-servicemen and all 33 posts were filled up by the ex-servicemen. The petitioner challenged that action by way of filing CWP No. 14270 of 2007. The same was disposed of in the following terms:- “.........The claim of the petitioner seems to be a genuine one. We direct respondents No. 1 and 2 to take into consideration all aspects of the case of the petitioner and consider his case afresh in the 2nd category of dependent of Service Personnel killed/disabled beyond 50%. Final order shall be passed regarding the case of petitioner within a period of two months from the receipt of a copy of this order.” It is thereafter that the impugned order was passed holding as follows:- “.........As per Govt. instructions the petitioner being dependent Ex-serviceman can be considered for appointment only when no other Ex-Serviceman candidate is available. Since 55 ESM candidates were already available and 5 D/ESM were senior to him as per merit, the petitoner is not entitled to claim appointment as Constable in the 2nd category of dependent of ESM. Hence the claim of the petitioner is rejected being CWP No. 1626 of 2009 4 devoid of any merit.” The contention of learned Senior Advocate for the petitioner is that in view of the instructions Annexure P-3 the respondent No.2 erred in holding that under the instructions dependents of ex-servicemen are to be considered only up to the extent of non-availability of suitable ex- servicemen. Learned counsel for the petitioner has placed reliance on a decision of this Court in Sukhbir Singh v. State of Haryana and others annexed as Annexure P-7 wherein a Division Bench held as follows:- “........ The name of the petitioner was not included in the select list presumably because while preparing the select list the Board did not adhere to the order of priority indicated in the instructions issued by the Government. This lapse on the part of the Board was taken note of by us while deciding C.W.P. No. 13309 of 1995, Rajpal Singh v. State of Haryana and others. In that case also, the petitioner had raised an identical issue by asserting that the order of priority specified in the instructions issued by the Government had not been followed. While accepting the contention of petitioner-Rajpal Singh, the Court held as under:- “After having perused the policy of reservation formulated by the Government, we are of the considered opinion that while appointing Ex-Servicemen/their dependents, the appointing authority is bound to keep in mind priority indicated in the policy instructions. This implies that Ex-Servicemen suffering from disability between 20% to 50% are to be preferred as against the dependents of those killed/disabled beyond 50%. Thereafter, other Ex-Servicemen can be considered for appointment against the reserved vacancies. CWP No. 1626 of 2009 5 What has been done in this case is that the respondent-Board forwarded its recommendations to the appointing authority without indicating as to which of the candidates is to be placed in order of preference as per the reservation policy framed by the Government for giving benefit to the Ex-Servicemen and their dependents. This has resulted in the benefit being conferred upon the candidates who fall in the category of other Ex-Servicemen. Consequently, a person like the petitioner who falls in the second category has been deprived of the preferential right of consideration against the post of Naib Tehsildar.” In view of this binding precedent it has to be held that the decision of the Director General o f Police to the effect that dependents of ex-servicemen can be considered only to the extent of non-availability of ex-servicemen is clearly against the policy Annexure P-3. In the circumstances this writ petition is allowed. The order dated 22.12.2008 (Annexure P-9) is quashed and a direction is issued to the respondents to consider the petitioner in the second category of priority. Necessary action be taken within a period of one month since the previous order of this Court in the earlier petition filed by this petitioner and even despite that, the respondents wrongly disregarded the claim of the petitioner, I deem it appropriate to impose costs of Rs. 50,000/-. (AJAY TEWARI) JUDGE September 17, 2009 sunita