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1989 DIGILAW 159 (ALL)

Rajan Babu v. U. P. Public Service Commission, Allahabad

1989-02-13

A.N.VARMA, SRINATH SAHAY

body1989
JUDGMENT AMARENDRA NATH VARMA, J. 1. THESE two petitions are being disposed of by a common judgment as they raise an identical issue. The question that arises for consideration is whether an illegitimate son of a Freedom Fighter is entitled to claim the benefit of the reservation carved out for the dependants of Freedom Fighters for the purposes of recruitment to the U. P. Government Upper Subordinate Services. Sons of Freedom Fighters are among the list of relations who are entitled to such benefits as dependants of Freedom Fighters. The claim of the petitioner for being considered in the category of dependants of Freedom Fighters has been negatived by the respondents on the ground that he is not the legitimate son of Sita Ram Jaiswal, the Freedom Fighter, and consequently not entitled to claim the benefit of reservation meant for dependants of Freedom Fighters. 2. THE petitioner appeared at the combined Upper Subordinate Services Examination of 1983 for various posts including the post of Sales Tax Officer-2 conducted by the U. P. Public Service Commission. After the written test the petitioner was called for interview and was eventually placed at serial no. 143 in the final selection list prepared by the Commission. It appears that after the declaration of the result of the written examination the Commission received a complaint against the petitioner alleging that he was not legitimate son of Sita Ram Jaiswal, the Freedom Fighter. THE Commission, however, decided to interview the petitioner provisionally and, in the meantime, entrusted the enquiry to the District Magistrate, Allahabad, for investigating the complaint referred to above. THE petitioner and his father Sita Ram Jaiswal submitted their own affidavits and those of two other persons before the Commission. Thereafter the entire material was transmitted to the District Magistrate for consideration. THE petitioner was also directed by the Commission through its office memo dated 25-1-87 to submit documents in support of his claim before the District Magistrate. Thereafter the District Magistrate submitted a report dated 2-3-88 to the Commission. THE report stated that the enquiry conducted against the petitioner revealed that Sita Ram Jaiswal was married to Smt. Prabha Devi and from this marriage there were two sons and one daughter. Smt. Prabha Devi was living separately with these children at Khuldabad and not with Sita Ram Jaiswal. THE report stated that the enquiry conducted against the petitioner revealed that Sita Ram Jaiswal was married to Smt. Prabha Devi and from this marriage there were two sons and one daughter. Smt. Prabha Devi was living separately with these children at Khuldabad and not with Sita Ram Jaiswal. After his marriage with Smt. Prabha Devi, Sita Ram Jaiswal started living with another lady Smt. Janki Devi from whom the petitioner was born. THE District Magistrate concluded that not being a legitimate son of Sita Ram Jaiswal, the petitioner could not be regarded as a dependant of a Freedom Fighter entitled to the reservation carved out in favour of such dependants. THE Commission accepting the report of the District Magistrate issued a letter dated 18-4-88 to the petitioner stating that on a consideration of the entire matter it has decided that the petitioner could not be extended the benefit of the reservation carved out in favour of the Freedom Fighters as he was not a legitimate son of Sita Ram Jaiswal. Aggrieved by the aforesaid decision of the Commission, the petitioner has filed these petitions. For the petitioner two points have been urged for our consideration. First, that the view taken by the Commission that illegitimate son could not be extended the benefits of dependants of Freedom Fighters is unsustainable in law and, second, that the petitioner was denied the opportunity to participate in the enquiry, held by the District Magistrate. 3. HAVING heard learned counsel for the parties and given the matter a careful consideration, we find no merit in either of these two contentions. We will take up these points seriatim. The first question which arises for our consideration is whether an illegitimate son can be regarded as a son. In Stroud's Judicial Dictionary (Fourth Edition), son has been defined as- "Sons and daughters' mean legitimate ones; unless those that are illegitimate are indicated (see hereon Edmunds v. Fessey 30 LJ Ch. 279; Re Fish (1894) 2 Ch. 83; An illegitimate son is not a 'son' within the meaning of the Inheritance (Family Provision) Act, 1938 (c. 45), s. 1 (1) as amended by the Intestates' Estates Act, 1952 (c. 64), ss. 7, 8) (Re Makain, Makein v. Makein (1955) Ch. 194). In common parlance also, son is generally understood as the male- egitimate child of a person." 4. 7, 8) (Re Makain, Makein v. Makein (1955) Ch. 194). In common parlance also, son is generally understood as the male- egitimate child of a person." 4. IN Shorter Oxford English Dictionary, the term has been defined as a male child or person in relation to either or both of his parents. Parents here, obviously connote those who are legally married to one another. It is, however perhaps only in the broadest sense of the term that an illegitimate son may also be referred to as the son of a person. But there again it will depend on the context in which the term is used. We will, therefore, examine the context in which this controversy arises. The petitioner is claiming the benefit of a provision carving out reservation in favour of the dependants of Freedom Fighters. That reservation can be validly made in favour of the dependants of Freedom Fighters is no longer open to debate and has indeed been firmly settled by a series of decisions of the Supreme Court as well as of this Court (See for example, the decision of the Supreme Court reported in the case of D. N. Chenehala etc. v. State of Mysore, AIR 1971 SC 1762 (paragraph 43 at pages 1775 and 1776). Such a reservation is an instance of compensatory discrimination designed to wipe out the handicap from which the children and dependants of Freedom Fighters suffered in the field of education during the period of struggle for emancipation of this country from foreign rule. It cannot be denied at the same time that such a reservation is intended to pass on an indirect benefit to the political sufferers themselves by providing jobs under the Government to their children and dependants. The idea is to compensate the political sufferers for the handicaps they have suffered as a result of participation in the Freedom Movement. 5. IT is in this context that we will have to construe the provisions reserving certain number of posts for being filled up exclusively by the dependants of Freedom Fighters and determine whether the illegitimate sons of Freedom Fighters ought also to be entitled to that benefit. 5. IT is in this context that we will have to construe the provisions reserving certain number of posts for being filled up exclusively by the dependants of Freedom Fighters and determine whether the illegitimate sons of Freedom Fighters ought also to be entitled to that benefit. If we are right in taking the view that such reservations are in the final analysis a direct or indirect benefit to the political sufferers themselves, the question that will immediately arise would be whether the law-makers would have extended such preferential treatment or benefit to those Freedom Fighters who are found to have indulged in acts of immorality. We do venture to think that as a matter of public policy the State would not encourage such acts and grant preferential benefits to such political sufferers. And if the Freedom Fighters themselves would stand deprived of benefits and preferences under the State in such a situation, the off springs born out of such illicit relations cannot, in our view, legitimately claim the benefit of reservations. 6. THUS viewing the problem from either of these angles, we have no manner of doubt that the Commission committed no error in holding that the petitioner was not entitled to the benefit of reservation being an illegitimate son of Sri Sita Ram Jaiswal. Learned counsel for the petitioner, however, referred to the provisions of Hindu Marriage Act and Hindu Succession Act in support of his contention that illegitimate children have also been recognized as sons under those enactments. The same principle should apply to the present situation also. 7. WE are unable to agree. As have been noticed in the definition of the word 'son' appearing in the Stroud's Judicial Dictionary, unless there is an indication to the contrary, son must refer only to legitimate son of a person. There is no such indication in the Government Order laying down the reservation in favour of sons of Freedom Fighters. The term must, therefore, receive its ordinary meaning according to which only legitimate sons can claim the benefit of that reservation. 8. WE then turn to the second contention. The petitioner is, in our opinion, not justified in his complaint that he was denied the opportunity to participate in the enquiry held by the Magistrate. The term must, therefore, receive its ordinary meaning according to which only legitimate sons can claim the benefit of that reservation. 8. WE then turn to the second contention. The petitioner is, in our opinion, not justified in his complaint that he was denied the opportunity to participate in the enquiry held by the Magistrate. After the receipt of the complaint that the petitioner was not the son of Sri Sita Ram Jaiswal and, therefore, not entitled to claim as dependant of a Freedom Fighter, the Commission informed him. Indeed, the petitioner and his father Sri Sita Ram Jaiswal submitted both representation as well as affidavits of himself and two other persons. Thereafter the Commission decided to refer the matter to the District Magistrate, Allahabad and by means of its office memo No. 285/32/ E-3/82-83 (T. C-III), dated 25-1-88, the Commission asked the petitioner to submit documents in support of his claim before the District Magistrate. The receipt of this memo is not denied by the petitioner. Nor is it asserted that the petitioner wanted to adduce further evidence before the District Magistrate which he was denied. It is, therefore, wrong to contend that the petitioner was not afforded the opportunity to participate in the enquiry held by the District Magistrate. In the result, the petitions fail and are dismissed. Petition dismissed.