Pawanpreet Kaur vs State of Punjab and Others

Adarsh Kumar Goel, J.—This matter has been placed before this Bench in pursuance of following order:

The issue involved in the present writ petition is as to whether the fact of reservation and admission to medical Colleges for wards of terrorist

victims can include the grand children also. Reliance has been placed on an order of a Division Bench of this Court passed on 31.8.2007 which

reads as follows:

The Petitioner seeks a direction for admission to MBBS course against reserved category for Tsunami victims.

The case of the Petitioner is that in the prospectus, there is a Clause for reservation for Tsunami victims to the following effect.

X) Tsunami Victims: 1%

Note: The reservation under Tsunami victims category shall be available only to the wards/children of all ex-servicemen settlers of Campbell Bay

Island in Andaman & Nicobar.

The Petitioner is grand-daughter of Sh. Jagjit Singh Gill who was serving the Indian Army and retired in the year 1961. Under the scheme of

reservation for ex-servicemen personnel in Andaman and Nicobar Island, he was allotted land and got settled there in the year 1969. He suffered

loss during Tsunami tragedy.

The claim has been opposed on the ground that reservation was only for ""Ward/Children"" which did not include grand children.

Learned Counsel for the Petitioner submits that all the ex-servicemen settlers for whom reservation has been extended, were settled in the year

1969 and 1971 and not thereafter and in that regard if grand child is excluded, the reservation will be futile as the ex-servicemen settled in the year

1969-1971, will not have their immediate children eligible for admission.

In addition to above, learned Counsel for the Petitioner also refers to averments made in para 7(i) of the writ petition giving particulars of grand

children of ex-servicemen who were given admission in the said category.

Learned Counsel for the Respondents could not dispute the particulars given in the petition but only point out that this interpretation was taken last

year.

Having regard to the fact that the interpretation now taken will be inconsistent with the interpretation earlier taken and will render the provisions in

the prospectus for the reservation for Tsunami Victims futile, we direct that the Petitioner be considered eligible as per above clause in the

prospectus.

The petition is disposed of.

Prima facie we are not inclined to agree with the view taken by the Division Bench as we are of the opinion that:

a) the aforesaid decision rested on the definition of ''Tsunami Victims'' and with regard to ex-servicemen settlers who were settled in the year

1969-1971;

b) the aforesaid definition included ''reservation for wards/children'' and the present case involves the question of ''reservation for wards''.

c) if the aforesaid view of the Division Bench is accepted, this would amount to extend the definition of ''wards''.

Accordingly, we are of the view that this matter deserves to be heard by a Full Bench.

List on 23.8.2010 at 2 p.m. before a Full Bench.

Before adverting to the issue referred, it will be appropriate to notice the facts. The Petitioner is a candidate for MBBS/BDS course and sought

reservation under Clause 5A (vi) of the Prospectus for PMET 2010 issued by the Baba Farid University of Health Sciences, Faridkot,

Respondent No. 2. Case of the Petitioner is that her grand father Kartar Singh was killed in the year 1984 during Operation Blue Star and at that

time, her father Lakhwinder Singh was 19/20 years of age. Even though the terrorism ended in Punjab in the year 1990, the policy of reservation

for wards of terrorist affected persons was continuing and the said policy should thus be held to be applicable even to grand children of terrorist

affected persons. The said clause is as under:

5A(vi) Wards of terrorist affected persons (in order of preference to the exclusion of next category) (As per decision of the Hon''ble Supreme

Court) 1%

a) Persons killed in terrorist actions in Punjab/riots outside Punjab.

b) Terrorist/Riot affected/displaced persons.

Case of the Petitioner is that if the policy is not applied to grandchildren, there may not be any eligible persons who may get benefit of the

reservation in the category in question. Reliance has been placed on a Division Bench decision of this Court in Simran K. Gill v. State of Punjab

and Ors. CWP No. 13257 of 2007, decided on 31.8.2007, wherein benefit of reservation was allowed to grandchild of a Tsunami victim, ex-

servicemen settler of Campbell Bay Island in Andaman and Nicobar (reproduced in the reference order).

In the reply filed on behalf of the State of Punjab, stand taken is that the Petitioner was not covered by the reservation clause as she is not a

ward (son or daughter) of person killed in terrorist action who was a breadwinner.

The learned Counsel for the Petitioner submitted that the expression ""wards of terrorist affected persons"" included not only son and daughter but

also grand-daughter. It was submitted that since terrorism ended 30 years back, no son or daughter of a terrorist affected person may be eligible

and in such situation, the reservation will become otiose.

Learned Counsel for the State and the University on the other hand submitted that the reservation clause had to be read with the general

conditions in para 10(h) to the following effect:

... In case of category (vi) (a) under reservation, the reservation shall be given only in cases where the breadwinner of the candidate has been

killed.

In view of above, it is submitted that breadwinner of the candidate would only refer to his parent or guardian. If parent or guardian of a candidate

is not affected by terrorist activity, the candidate could not get benefit of reservation merely because his/her grandfather or other relative may have

been affected by terrorism.

Having considered the rival submissions, we are of the view that contention raised on behalf of the Petitioner cannot be accepted. It is clear from

Clause 5A(vi) read with Clause 10(h) reproduced above that reservation is only for the benefit of wards whose parent or guardian may have been

affected by terrorism. In the case of the Petitioner, her parents, who are still alive, have not been affected by terrorism. The reservation clause in

such a situation could not be invoked by the Petitioner on the ground that her grandfather was affected. In her case, the breadwinner will naturally

refer to her parents.

As regards the earlier judgment wherein benefit of reservation was held to be attracted to grand daughter; the same is distinguishable. One of the

reasons mentioned therein was that the clause should not become redundant. It was also observed that even the department had adopted an

interpretation by extending the reservation to the grandchild. Neither the said reasons can be extended to the present situation nor the said reasons

are of universal application. Immediate children/wards could certainly have taken benefit of reservation. Similarly, the plea of a possibility of a

clause becoming redundant cannot be a reason to extend reservation unless reservation could be justified for a compelling legal and social

necessity. The department has also not adopted in the present case an interpretation which may support the stand of the Petitioner unlike the earlier

case. In this view of the matter, it is not necessary to consider the applicability of the principle of desuetude which is invoked to hold that even

though law has not been repealed, it had lost its force. This principle has been duly recognized by the Hon''ble Supreme Court in Municipal

Corporation for City of Pune and another Vs. Bharat Forge Co. Ltd. and others, . It is also not necessary to consider the principle of

contemporanea expositio"" i.e. construing a provision as per interpretation of authority who is concerned with applying the said provision which is

not decisive on the question of construction. It has only persuasive value. Court may refuse to follow such construction wherever the situation so

requires. (Para 29 in Bharat Forge Co. Limited.)

It was held by the Hon''ble Supreme Court in P.A. Inamdar and Others Vs. State of Maharashtra and Others, that admission to every seat in

higher education has to be given on merit unless exceptional situation so justifies.

Thus, case of the Petitioner not being covered by reservation clause and earlier judgment being distinguishable, the question has to be

answered against her.

The writ petition may now be listed before appropriate Bench for further orders.