IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP.-No.1439 of 2009 CMP.No.2648/2009. Reserved on 28.7.2009. Date of Decision: August 17,2009. _______________________________________________ Kiran Chauhan. ….Petitioner. Versus State of H.P. and others. ….Respondents. Coram: Hon’ble Mr. Justice Deepak Gupta, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioner :Mr. P.P.Chauhan, Advocate. For Respondents 1 & 2 : Mr.R.M.Bisht, Deputy Advocate General. For Respondent No.3. : Mr.D.K.Khanna, Advocate. For Respondent No.4. : Mr.Ajay Chandel, Advocate. ____________________________________________ SURINDER SINGH,J Admittedly, the petitioner is a grand daughter of freedom fighter, she felt aggrieved by the action of respondent No.3, whereby, her candidature for the post of Lecturer (Zoology) college cadre against the quota of wards of ‘freedom fighters’ was not considered but in lieu thereof respondent No.4 son of the daughter of the freedom fighter; was recommended and appointed against the said post. Respondent No.3 issued an advertisement to fill-up the post of Lecturer (Zoology) college cadre. One post was Whether reporters of the Local papers are allowed to see the judgment?yes . 2 reserved for the wards of freedom fighter (General Category). The petitioner a post-graduate in Zoology, applied under the said category. She was issued an admission letter (Annexure:P-2) and appeared for the screening test. But was mentioned as a general-category candidate, however she got it rectified from the Examination Supervisor. She qualified the screening test in the category of wards of freedom fighter, thereafter she was to appear in the interview. On 24.1.2009 (Annexure:P-4), the State Government issued a clarificatory letter which reads as under: “No.Sa PV-F-A(1)-1/99 Government of Himachal Pradesh General Administrative Department F-Section From: Secretary (General Administration) Government of Himachal Pradesh. To: 1 .All Administrative Secretaries, Government of Himachal Pradesh 2. All Divisional Commissioners, Himachal Pradesh. 3. All Heads of Departments, Himachal Pradesh. 4. All Deputy Commissioners, Himachal Pradesh. 5. All Boards/Corporations /Universities/ Cooperative Societies/Chairman, Local Self Governments/Managing Directors/ Secretaries/ Registrars etc. Dated Shimla-171002 24 January 2009 Subject: Clarification regarding benefits of reservations to the dependents Freedom Fighters. Sir, 3 The State Government has provided for 2% reservation in all classes of services for the dependents of Freedom Fighters (children and grand-children) in all Government/Semi-Government/Private enterprises and local self governments. The instructions of the same has been issued vide Department of Personnel letter No. Per(P-2) D(2)-10/83 dated 16.10.1984 and in that time the appropriate instructions have also been issued from time to time to by the above department. The definition of the dependants for the purpose of reservation has been clarified by this department vide letter No. SPV-E(F)4- 28/85 dated 17.12.1985, as per which the inclusions of only the sons and the family members of the Freedom Fighters were found to be logical. The scheme “Himachal Pradesh Freedom Fighters Welfare Fund” framed by the Government of Himachal Pradesh for the benefits of the dependents of Freedom Fighters defines as per this department notification No. GAD(F)(A)4- 2/90-1 dated 8.6.1994, para 1(B) as under: “(B) “Dependents” means such successors who are directly related to the wife of the beneficiary or any other person, who in the opinion of Himachal Pradesh Freedom Fighters Welfare Board (which hereafter has been called as State Board) is or was fully or partially dependent upon the beneficiary”. In this way, generally, the successors directly related to the freedom fighters, i.e, their sons, grand-sons and unmarried daughters/grand-daughters only comes within the definition of their dependents. But the different departments and applicants have been raising this point for clarification with the government, whether the married daughters/grand-daughters and divorced or widowed daughters/grand daughters of freedom fighters are entitled for this benefit or not. In this regard it is clarified that generally any woman after her marriage is known by the name of her concerned family and not by the family of her parents, therefore, this benefit be given to the daughters/grand daughters of freedom fighters before their marriage. So far as the widowed/divorced daughters/grand daughters of the freedom fighters are 4 concerned, if they do not get re-married and remains with the family of the freedom fighters and are wholly dependent upon the freedom fighters, then in future those widowed/divorced daughters/grand daughters of the freedom fighters will be eligible for benefits under the reservation quota of freedom fighters. You are requested that this clarification be disseminated to all subordinate offices and ensure compliance of the same. Please acknowledge this. Yours faithfully, Special Secretary (General Administration) Himachal Pradesh Government Endst: No. SPV-F/A(1)-1/99 dated Shimla-2 24 January, 2009 Copy file No. SPV-F-A(4)-8/99 for further action. Special Secretary (General Administration) Himachal Pradesh Government.” On 10.3.2009, the petitioner made a representation (Annexure:P6) to the Chairman H.P. Public Service Commission allowing her to appear in the interview against the said quota or alternatively to consider her against general category. She was interviewed. On 23.3.2009 the results were declared and respondent No.4 Sandeep Kumar was shown having been selected for the post of Lecturer (Zoology) against the quota meant for the ‘wards of freedom-fighter’ but the name of the petitioner did not find mention anywhere. Later, on inquiry it came to her notice that she was considered against the ‘general category’ whereas private respondent was considered against the category wards of freedom fighter. Now, the grouse of the petitioner is that the private respondent is the son of the married daughter of Shri Sohnu Ram freedom fighter. He cannot be said to be dependent upon 5 the freedom fighter whereas she being the married grand- daughter of late Shri Hari Ram freedom fighter, duly certified by the Deputy Commissioner as per Annexure:P8, was wrongly ignored. Sh. P.P. Chauhan, learned counsel for the petitioner vehemently argued that the clarificatory letter (Annexure:P-4) aforesaid redefining the wards of the freedom fighter is un-constitutional, illegal and contrary to law in as much as it smacks of gender discrimination. To support his arguments he placed his reliance on Kumari Brij Bala Vs. Stae of H.P. and others 1984 Sim.L.C. 19 wherein AIR 1979 S.C.1868 was relied upon; Jani Bai Vs. State of Rajasthan and others AIR 1989 Rajasthan 115 and Savita Samvedi (Ms) and another Vs. Union of India and others (1996) 2 SCC 380. Thus sought mandamus directing respondent No.3 to consider and select the petitioner against the quota of wards of freedom fighter in place of respondent No.4. Shri R.M. Bisht, learned Deputy Advocate General while referring to the reply on behalf of respondents No. 1 and 2 submitted that the definition of the “dependents” followed by the clarificatory letter makes it clear that after the marriage, the daughter or the grand-daughter she gets transposed into her married family thus ceases to be a dependant of their father or the grand father. He also submitted that the facilities under the scheme are being provided to the children/grand sons and maternal-grand sons and maternal grand daughters 6 of the freedom fighter, if they have no son. According to him there is rationality behind it as the daughters and grand- daughters are known by the name of their families in which they get married and they are no more dependents. Since the petitioner does not fall in the category of the ‘dependent’ of the wards of the freedom fighter being a married grand-daughter of the freedom fighter, she was rightly considered against the open general category but failed to get merit. Shri D.K.Khanna, learned counsel for respondent No.3 also made the similar submissions and whereas Shri Ajay Chandel, learned counsel for the private respondent submitted that respondent No.4 being the maternal grand- son of freedom fighter of Sh. Sohnu Ram, who was having no son, was eligible for consideration against the post reserved for wards of freedom fighter as per instruction dated 11th April, 1991 and was rightly considered and selected. It is further submitted that the definition of dependent followed by clarification is not discriminating to articles 14 or 16 of the Constitution in any way, but it has a rationality behind it. We have given our thoughtful consideration to the rival contentions of the parties and have gone through the record. The perusal of the record shows that the State Government in the year 1984 considered and decided the question of providing 2% reservation in services/posts to the children/grand children of the freedom fighters belonging to Himachal Pradesh, in case of the direct recruitment to all the 7 services/posts including all the public sector undertakings/body Corporates and vide letter No. PER(AP-II)D(2)-10/83 dated 16.10.1984 and ear-marked the posts for the wards of freedom fighters in 40-point roster. The State Government vide letter No. GAD-E(F)4- 23/86 (Annexure:R-3/T) further clarified that the facilities being provided to the children/grand sons of the freedom fighters by the Government shall also be provided to their daughters and grand daughters if they have no son. It was further clarified vide their letter dated 11.4.1991 (Annexure:R- 4/2). Thereafter the H.P. Public Service Commission has also sought the clarification as to whether such wards of freedom fighters who stand appointed on regular basis as well as the married daughters/grand daughters, are also entitled for the benefits of reservation or would seize to enjoy the benefits of wards of freedom fighters. It was against this context the Sate Government issued a clarificatory letter dated 5.5.2001 (Annexure:R-4/4) and conveyed its decision that those sons/grand sons/daughters/grand daughters of freedom fighters who have been appointed on regular basis as well as the married daughters/grand daughters shall not be entitled for the benefits of reservation provided to the wards of freedom fighters in services, against the identical posts in the same scale. The employed children/grand children and married daughters/grand daughters of freedom fighters will be deemed to have been excluded from the definition of freedom fighters to this extent. It also clarified that the children/grand children 8 of freedom fighters who have been appointed in Government/Semi Government or private Sectors etc. services against the posts reserved for the wards of freedom fighters on regular basis will remain entitled to compete for higher rank/grade posts/services on the basis of reservation earmarked to the wards of freedom fighters. Thereafter a fresh clarification was issued on 24th January, 2009 reproduced above which has been challenged by the petitioner on the ground of discrimination. As already stated above, the petitioner is the married grand- daughter of the freedom-fighter, whereas the private respondent is the son of the daughter of the freedom- fighter who was not having a son, was given the employment in service as aforesaid against the quota of freedom fighter. In C.B.Muthamma Vs. Union of India and others (1979) 4 Supreme Court Cases 260 while considering the ambit of Articles 14 and 16 of the Constitution speaking for the court held as under: “6. At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thralldom. Freedom is indivisible, so is justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-à-vis half of India’s humanity, viz, our women, is a sad reflection on the distance between Constitution in 9 the book and law in action. And if the executive as the surrogate of Parliament, makes rules in the teeth of Part III especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable. 7. We do not mean to universalize or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern.” (Emphasis supplied) Thus in the above case, the Supreme Court directed to overhaul all Service Rules to remove the stain of sex discrimination, without waiting for ad hoc inspiration from the writ petition or gender charity. In the instant case the State Government did not debar the female altogether from the definition of the “dependents” of the freedom fighters but it demonstrated differentiation not including the married daughters and grand- daughter from its definition on reasonable grounds. The judgments cited by the learned counsel for the petitioner are quite distinguishable and are not attracted to the present facts. Here in this case, it is only the married daughter or the grand daughter of freedom fighter who are excluded from the definition of the ‘wards of the freedom-fighter’ for the reason that after her marriage they get transposed into their marital 10 families thus seized to be the ‘dependent’ of the freedom- fighter whereas the maternal grand-son is only included in the definition of the wards of freedom-fighter if the freedom fighter has no son and such facilities are also being provided by the State Government to the children/grand sons of the freedom fighters irrespective of their gender. Besides this, facilities are also provided to the maternal grand-sons/grand-daughters, if they have no son. Respondent No.4 is the maternal grand son of Smt. Sarswati Devi and Sh. Shonu aforesaid had no son. Thus, in these circumstances, the petitioner was not considered against the quota of freedom fighter and the private respondent was rightly found eligible and selected against the said quota-post. Therefore against the aforesaid background we find that there is rationality in covering the private respondent under the definition of wards of freedom fighter and excluding the petitioner from such definition which cannot be said to be discriminatory as alleged. Therefore, the relief sought cannot be granted to the petitioner. As such the petition is dismissed. No order as to costs. (Deepak Gupta), Judge. (Surinder Singh), Judge. August 17,2009(R)