CWP No.

6194 of 2009 : 1:

In the Punjab and Haryana High Court at Chandigarh.

Date of decision: 23.07.2009

Dr. (Major) Harsh Vivek Singh ... Petitioner

Versus

State of Punjab and another ... Respondents

CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI

Present: Mr.Vivek Sharma, Advocate,for the petitioner.

Mr.PC Goyal, Addl.AG, Punjab.

Mr.Ashish Rawal, Advocate, for

Mr.Anupam Gupta, Advocate.
--

PERMOD KOHLI, J. (Oral):

Respondents chose not to file reply by making statement before

Registrar Judicial No.1 as is evident from order dated 23.07.2009.

I have heard the learned counsel for the parties.

The petitioner joined Indian Army on a post of Doctor in the

the Army Medical Corps after acquiring the degree of MBBS in the year

2002. He was given the rank of Captain. Later, the petitioner came to be

promoted as Major. The petitioner's recruitment was for a period of five

years. On successful completion of five years tenure, the petitioner left the

Army on 21.11.2008. It is stated that the petitioner, thus, acquired the status

of an Ex-serviceman. The peitioner has also placed on record a certificate

CWP No.6194 of 2009 : 2:

issued by the District Sainik Welfare Officer, Shahid Bhagat Singh Nagar,

Nawanshahr, dated 16.03.2009 (Annexure P-1).

The State of Punjab issued notification dated 17.03.2008

(Annexure P-2) for admission to Post Graduate Degree/Diploma Courses

Session 2008 onwards. Respondent No.2 was appointed as the agency to

conduct the Entrace Test for admission to the aforesaid various degree

courses. As per the written criteria, 50 per cent of the total seats in

government Institutions were earmarked to be filled on all India basis

through an All India Competitive Entrance Test. The remainaing seats

shall be filled through the Post Graduate Entrance Test. Out of the

remaining seats, 60% seats shall be filled up from amongst the eligible

PCMS/PCMS (Dental)/PDES in service doctors and 40% shall be open to

all eligible medical/dental graduates. As many as three seats were advertised

in defence category. The petitioner who belongs to the defence category,

filled up the form and participated in the PGET-2009 against 40% quota

reserved for medical graduates. The entrance test was held on 05.04.2009.

The result of the same was declared on 07.04.2009. The petitioner secured

536 marks and he ranked 5th in the 40 per cent quota under defence

category with Code 23 for serving/retired defence personnel. The

respondents, however, denied the admission to the petitioner on the ground

that he is not the ward of Ex-serviceman. As per advertisement 3 seats are

meant for defence category in 60 % PCMS quota. But in 60% PCMS quota

only one candidate has cleared the written test. Thus, two remaining seats

have to be shifted to the share of 40% Medical Graduate Category. The

detailed chart of preference has been given by the respondents to fill up the
CWP No.6194 of 2009 : 3:

seats in the order of preference in the defence category in the following

manner:-

“a) Killed in action.

b) Disabled in action to the extent of 50% or

above & Boarded out of service.

c) Died while in service & Death attributed to

Military service.

d) Disabled in service & Boarded out with

disability attributed to Military Service.

e) Gallantry Award/ other Award Winners both

serving/retired.

f) Serving/Retired Defence personnel/Ex-

Servicemen.”

The petitioner falls in last category (f). The question whether

the defence personnel himself is eligible under the aforesaid category has

been considered by this Court in the case of Kamal Sachdeva Vs. Baba

Farid University of Health Sciences & another, CWP No.7794 of 2008,

decided on 17.11.2008, wherein the right of the Ex-serviceman has been

acknowledged and he has been considered to be eligible.

In view of the above, the petitioner is eligible as Ex-serviceman

for admission to the Post Graduate Course.

It is contended on behalf of the respondents that in the

preferential order notified for reservation for defence category, the wards of

defence personnel are to get preference as against the defence personnel

himself. In my opinion such an approach is totally irrational and illogical.

Ward of a defence personnel becomes entitle to benefit because of his/her

CWP No.6194 of 2009 : 4:

parents being a lineal descendant then how can ward steal a march over the

defence personnel himself. It should be other way around if defence

personnel himself is competing as against a ward of any defence personnel,

he/she has to be given precedence over the ward.

Learned counsel for the petitioner has also relied upon a

judgment of the Hon'ble Apex Court in the case of Dilwan Singh and others

etc. etc. Vs. State of Haryana and others etc. etc., 1996 (2) RSJ, 514,

wherein the Hon'ble Supreme Court has considered the question whether the

benefit of an Ex-serviceman should be available to the Ex-serviceman at

the first instance as against the dependents of the Ex-servicemen. On such

consideration, the Hon'ble Supreme Court made the following

observations:-

“It is contended by Shri Mahabir Singh, learned

counsel for the appellants that the Selection Board

has adopted a policy of calling the ex-servicemen

and the dependent children of the ex-servicemen

together to consider their cases for recruitment

according to merit which would stand an

impediment to the ex-servicemen. We find force

in the contention. The objection of reservation of

the ex-servicemen is to rehabilitate them after their

discharge from the defence services. As per the

instructions issued by the State Government, in the

absence of availability of the ex-servicemen

CWP No.6194 of 2009 : 5:

instead of keeping those posts unfilled, the

dependent children, namely, son or daughter of ex-

servicemen would also to be considered. The

object thereby would be that the Selection Board

should first consider the claims of the ex-

servicemen and have their eligibility considered

independently in the first instance before the

claims of the dependent children of the ex-

servicemen are considered. If they are found

eligible and selected, for the balance unfilled posts,

the selection should be done from among the

dependent children of the ex-servicemen.”

From the dictum of the aforesaid judgment, it is clear that the

Ex-serviceman cannot be placed in disadvantageous position than their

wards. Rather they should be considered first for the benefit in preference

to their wards. In view of the above, the condition in the notification dated

17.03.2008 (Annexure P-2) which provides for preferential treatment to the

wards of the Ex-servicemen is liable to be modified. It is accordingly

directed that where Ex-serviceman himself is a candidate and reservation is

provided for Ex-serviceman, he/she shall be considered at the first instance

in preference to the wards of Ex-serviceman.

In the present case, admittedly, the petitioner has better merit

but on account of the preference provided under the notification, the

petitioner has been put to disadvantageous position.

For the reasons recorded above, this petition is allowed and it is

CWP No.6194 of 2009 : 6:

directed that the petitioner who is an Ex-serviceman shall be considered at

the first instance in preference to the dependent wards of the Ex-servicemen

in the Ex-Serviceman category against the earmarked quota and if on such

consideration, the petitioner is found to have made the merit, he will be

admitted to the course in question in accordance with law.

Vide interim order dated 24.04.2009, the petitioner was

permitted to join the counseling provisionally. It was further directed that

the result of the petitioner shall be kept in a sealed cover till the next date of

hearing. In view of the aforesaid direction, the respondents have kept the

result of the counseling undertaken by the petitioner in a sealed cover as

informed by Mr.Rawal today in Court.

In view of the fact that the petitioner is eligible under law, the

respondents are directed to open the sealed cover and if the petitioner has

attained the requisite merit for admission to the Post Graduate Course, he

may accordingly be admitted to the course in question in accordance with

law.

23.07.2009 (PERMOD KOHLI)

BLS JUDGE

Note: Whether to be referred to the Reporter? YES