Hans Raj vs State of Punjab and Others

Tejinder Singh Dhindsa, J.—The challenge in the instant writ petition is to the order dated 28.4.2005, Annexure P3, whereby the claim of the daughter of the petitioner under the Policy issued by the State Government regarding appointments of ''Honour and Gratitude'' in the State Class III and Class IV service to the dependent member of the families of ''war heroes'' has been rejected. Brief facts that would require notice are that Sepoy Makhan Singh serving with 4 Sikh Light Infantry gave up his life on 14.1.2002 as a battle casualty in ''OP Rakshak'' in Jammu & Kashmir Sector. In recognition of such supreme sacrifice made by Sepoy Makhan Singh, the Government Senior Secondary School for Girls, Pathankot was named as Shaheed Makhan Singh Senior Secondary School for Girls, Pathankot. It is further pleaded that at the Shaheedi Samaroh in honour of deceased Makhan Singh, the then Chief Minister, Punjab represented through Deputy Commissioner, Gurdaspur had given an assurance that one of the next of kin of the deceased Sepoy would be given a job as per Policy framed by the State Government for the ''Honour and Gratitude'' towards ''war heroes''.

It has been asserted that the daughter of the petitioner, namely, Ms. Sonia who was unmarried and was 7th Pass, submitted an application on 12.1.2003 to the District Sainik Welfare Officer, Gurdaspur seeking appointment against a Class IV post. The application was duly forwarded to the office of the Deputy Commissioner, Gurdaspur. However, vide impugned order dated 28.4.2005, the claim of the daughter of the petitioner has been rejected on the basis that Ms. Sonia, unmarried daughter of Hans Raj, is dependent upon her father who is a Government employee and not on her brother Makhan Singh who achieved martyrdom and as such, she cannot be considered for appointment.

Learned counsel appearing for the petitioner has strenuously argued that the action of the State Government in denying appointment to his daughter is illegal and contrary to the Policy dated 19.8.1999, Annexure P6, framed by the State Government as regards appointment of ''Honour and Gratitude'' to the dependent members of the families of war heroes. Learned counsel would argue that the claim of the daughter of the petitioner has been rejected on the ground that she is dependent upon her father and not on her deceased brother Makhan Singh. Learned counsel would advert to the Policy dated 19.8.1999 to contend that where a ''war hero'' was unmarried, then other dependents like unmarried brother/unmarried sister were also eligible for consideration for appointment under the Policy. Contention raised is that the State Government has applied the criteria of dependency as would be applicable in the case of grant of compassionate appointments where an employee dies in harness, whereas the claim in the present case was for appointment under a Policy of ''Honour and Gratitude'' in recognition of the supreme sacrifice made by Shaheed Makhan Singh. Towards such submission, reliance has been placed upon a judgment of this Court dated 6.10.2010 passed in Civil Writ Petition No. 19503 of 2008 titled as ''Captain Janmej Singh v. State of Punjab and others''. That apart, even a plea of discrimination has been raised in terms of categoric averments that the unmarried sister of Shaheed Naik Mukesh Singh had been granted appointment as a Clerk in the Punjab Mini Secretariat, Chandigarh even though at the time of appointment her father was a Punjab Government employee.

Per contra, learned State counsel even though not disputing that Shaheed Makhan Singh would be covered under the definition of ''war hero'' under the Policy dated 19.8.1999 would argue that the benefit of appointments under this policy was confined to dependent members of the ''war heroes'' as laid down under clause 16 of the Policy which reads in the following terms:

Widow or wife or dependent unmarried daughter or adopted dependent son or adopted un-married daughter. However, in case the "War Hero" was unmarried but had others as dependents on him, then one of the dependent un-married brothers/unmarried sisters will be eligible for consideration for appointment under this policy"

The stand taken by the State is that since Ms. Sonia is unmarried and her father, namely, Hans Raj is a Government employee, as such, she would be taken to be dependent on her father and not on her late brother Shaheed Makhan Singh. It has been argued that the impugned order dated 28.4.2005, Annexure P3, rejecting the claim of the daughter of the petitioner has been passed strictly in the light of Policy dated 19.8.1999, Annexure P6, and the same does not call for any interference.

To examine the validity of the impugned order dated 28.4.2005, it would be apposite to examine the Policy dated 19.8.1999 issued by the Government of Punjab, Department of Personnel. Such Policy envisaged appointments to be offered to the widow or a dependent member of the family of a ''war hero'' who achieved martyrdom as also to the ''war hero'' who has been discharged from service on account of disability suffered by him. Such appointments were to be known as "appointments of honour and gratitude". The term ''war hero'' stands defined in the Policy to mean a defence services personnel or a para-military forces personnel who is a bonafide resident of Punjab State, and is killed, or discharged from service on account of disability suffered by him while fighting a war declared by Government of India in operations in Kargil or any other sector in Jammu & Kashmir. The posts offered for appointment under the Policy would be deemed to have been automatically taken out of the purview of the PPSC/SSS Board/Departmental Selection Committee as the case may be. Insofar as appointments to State Class III and Class IV services are concerned, there was ''No qualification'' prescribed for Class IV non-technical post and ''Matriculation'' for Class III post. Further, an appointee under the Policy was altogether exempt from acquiring the requisite knowledge of Punjabi language under the Rules. No maximum age limit for appointment was prescribed. A widow appointed under the Policy was allowed to continue in service even after re-marriage. For appointment under the Policy, the widow or the wife of a dependent son or dependent unmarried daughter or adopted dependent son or adopted unmarried daughters were eligible for consideration. In the case of the ''war hero'' being unmarried, then one of the dependent unmarried brother/unmarried sister was also eligible for consideration for appointment. Towards implementation of the Policy, a ''cell'' under the Department of Defence Services Welfare was constituted. The Deputy Commissioner concerned was obliged under the Policy to depute a senior officer to visit the bereaved family at the earliest so as to apprise them of the Policy and get the preference of the station and the job as also to facilitate the submission of application form along with the required documents. The complete application form along with the documents was to be forwarded by the Deputy Commissioner concerned to the ''cell'' under the Department of Defence Services Welfare. Still further, the ''cell'' having processed the application was to place the same before a High Powered Committee for decision keeping in view the preference and circumstances of the family of the ''war hero''.

In the facts of the present case, an application dated 12.1.2003 had been submitted by the daughter of the petitioner at Annexure P2 stating clearly that she is the unmarried sister of late Shaheed Makhan Singh who, in turn, had been supporting her education during his life time and that she was dependent upon him. Such claim stands rejected in the light of order dated 28.4.2005, Annexure P3, taking a view that since the father was a Government employee, the unmarried sister would be seen as dependent upon her father and not on her late brother Shaheed Makhan Singh.

This Court is of the considered view that the respondent-authorities have dealt with the application submitted by the daughter of the petitioner in a mechanical manner. No material whatsoever has been referred to by the respondent-Department whereupon the contention of the unmarried sister claiming to be dependent on her late brother has been discarded. The petitioner''s son was, admittedly, a young unmarried member of the Indian Forces. It would be safe to presume that he must be financially assisting his family including his unmarried sister. In such matters, it was obligatory upon the respondent-authorities to have acted with an element of gratitude and compassion. Even under the Policy dated 19.8.1999, Annexure P6, the Deputy Commissioner concerned was to depute a senior officer to visit the bereaved family and thereafter forward the matter to be placed before a High Powered Committee for a final decision keeping in view the circumstances of the family. Without there being any suggestive material/documents to dispute the contention and claim of the daughter of the petitioner to the effect that she was dependent on her late brother Shaheed Makhan Singh, it shall have to be held that the unmarried sister, namely, Ms. Sonia was covered under the Policy dated 19.8.1999 to be vested with a right for consideration of appointment of ''Honour and Gratitude'' on a Class IV post.

Even otherwise, the respondent-authorities have erred in having rejected the claim of the daughter of the petitioner on the ground of "dependency". The objective as regards framing of the Policy dated 19.8.1999 was towards giving due recognition of the supreme sacrifice made by a ''war hero'' and, as such, to provide appointment as a mark of ''Honour and Gratitude''. Such appointment could not be viewed only towards providing a source of sustenance to the dependent family member(s). It is, in fact, an expression of gratitude of a thankful Nation on account of a life having been laid down by a ''war hero''. The element of dependency in such appointments could not have been a decisive factor to deny appointment to the daughter of the petitioner in the light of the facts of the present case. The principles governing compassionate appointment towards implementation of an ex-gratia Policy in the case of a Government employee who dies in harness cannot be imported and applied so as to govern appointments of ''Honour and Gratitude''. In taking such view, I would draw support from the observations made by a Co-ordinate Bench while deciding Civil Writ Petition No. 19503 of 2008 "Captain Janmej Singh v. State of Punjab and others" on 6.10.2010 to the following effect:

In my considered view, the solitary object behind giving appointment as a mark of ''honour and gratitude'' to a War Hero is not to provide a source of sustenance to his dependent family member(s) as it generally happens in the case of death of a Government employee. It is more an expression of gratitude by a thankful Nation for the sacrifice made by a War Hero. Such like measures lessen the psycho-fear amongst the youth and further encourage them to join the Army and fill the Army personnel with a sense of extreme security. The factor or factum of dependency is alien and irrelevant to such like extraordinary decisions taken to meet out extraordinary situations. The action of the Department of Personnel in applying the ''principle of dependency'' in the instant case is, thus, per se arbitrary and wholly misconceived.

The ex gratia policy or its criteria as applicable in the case of a Government employee who dies in harness, cannot be applied in the present case as the petitioner never sought the appointment of his daughter under any such Policy. He has simply sought parity in the matter of ''honour and gratitude'', towards his son Lieutenant Triveni Singh who made the supreme sacrifice for his motherland. The Department of Personnel ought not to have mixed up two different policies while putting up the case of the petitioner''s daughter for appointment as an expression of ''honour and gratitude'' towards Lieutenant Triveni Singh.

The action of the State Government requires to be frowned upon on yet another ground. In para 7 of the writ petition, it stands categorically averred that the unmarried sister of Shaheed Naik Mukesh Singh was appointed as a Clerk by the State Government even though at that point of time her father was a serving Punjab Government employee. Such averments have not met with any rebuttal in the joint written statement filed on behalf of respondents No. 1 to 3. The State Government cannot adopt different yardsticks towards implementation of its own Policy while considering the claim for appointment of ''Honour and Gratitude''. The action of the State Government in denying appointment to the daughter of the petitioner inspite of being identically situated is held to be arbitrary and violative of Articles 14 and 16 of the Constitution of India.

The writ petition is, accordingly, allowed and the order dated 28.4.2005, Annexure P3, is quashed. The respondents are directed to offer appointment to Ms. Sonia, daughter of the petitioner against any suitable Class IV post in the light of her qualifications within a period of three months from the date of receipt of a certified copy of this order. Petition allowed.