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2021 DIGILAW 1111 (KER)

Gokul Sreekumar v. Punjab National Bank

2021-12-04

ALEXANDER THOMAS, VIJU ABRAHAM

body2021
JUDGMENT : ALEXANDER THOMAS, J. The appellant herein has filed the instant Writ Petition (Civil) WP(C).No.12950/2021 before this Court with the following prayers: “i. To issue a writ of mandamus or any other writ or directing the respondents to complete the selection process as immediately as possible. ii. To issue a writ of mandamus or any other writ or direction directing the respondents to refrain from ousting the dependents of ex-servicemen from the zone of selection. iii. To direct the respondent No.2 to consider and pass appropriate orders on Ext.P8 representation within a reasonable time frame. And iv. To issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.” 2. The learned Single Judge, after hearing both sides, has rendered the impugned judgment dated 29.9.2021 in WP(C).No.12950/2021 dismissing above WP(C) on the ground that the appellant cannot be said to be fulfilling the eligibility condition for claiming horizontal reservation in the Ex-service category for selection to the post of Peon under the respondent Bank. It is this verdict of the learned Single Judge dismissing the above WP(C) that is under challenge in this intra court appeal filed under Sec.5(i) of the Kerala High Court Act, 1958, at the instance of the unsuccessful writ petitioner. 3. Heard Sri.M.A.Baby, learned counsel appearing for the writ appellant/writ petitioner and Sri.Sandeep Ankarath, learned Standing Counsel for the Punjab National Bank, appearing for the respondents in the W.A./respondents in the WP(C). 4. The appellant had submitted application in response to Ext.P-1 selection notification dated 2.2.2021 issued by the respondent Punjab National Bank inviting applications from eligible candidates for selection and appointment to the post of Peon in the subordinate cadre in the Branches of said Bank. Now, the respondent bank has rejected the claim of the appellant on the ground that he is not eligible to be considered for horizontal reservation category for Ex-servicemen for selection and appointment to the post of Peon notified as per Ext.P-1, as he cannot be said to be a dependent of Ex-serviceman who has died in military action. 5. Now, the respondent bank has rejected the claim of the appellant on the ground that he is not eligible to be considered for horizontal reservation category for Ex-servicemen for selection and appointment to the post of Peon notified as per Ext.P-1, as he cannot be said to be a dependent of Ex-serviceman who has died in military action. 5. Though, Ext.P-1 selection notification dated 2.2.2021 is silent about horizontal reservation in the Ex-servicemen category, Ext.P-3 is an internal communication issued on 5.2.2021 by the respondent Bank addressed to the Zila Sainik Welfare Officer of the Government of Kerala informing the latter that the total vacancy for Alappuzha District is 5 for abovesaid selection, out of which 2 are set apart for General category, 1 is set apart for Other Backward Classes (OBC), 1 is set apart for Scheduled Caste (SC) category and 1 is set apart for Economically Weaker Section(EWS). Further therein, it is stated that 2 vacancies for Ex-servicemen and 1 vacancy for dependent of Ex-servicemen are also provided within the overall reservation. Further, the respondent bank has requested the Zilla Welfare Officer that a list of candidates eligible as per the bank guidelines submitted in the ratio of 3:1, ie, 3 candidates for 1 vacancy. The case of the appellant is that in pursuance of Ext.P-1 selection notification, which is meant for selection to the post of Peon in various districts like Thiruvananthapuram, Alappuzha, Kottayam & Kollam, the appellant had applied only for being considered for Alappuzha district alone. The appellant had requested for being considered for the post notified for Alappuzha district, since it is insisted in Ext.P-1 selection notification that the applicant should be domiciled in the district concerned, and as the appellant is domiciled in Alappuzha district. From Exts.P-1 & P-3 it is seen that the total vacancies set apart for Alappuzha district is 5, out of which 2 is set apart for the general category and 1 each for OBC, SC & EWS categories. It appears that the stand of the respondent Bank is that the horizontal reservation meant for Ex-servicemen category is worked out within the overall number of posts in the Thiruvananthapuram Circle, subject to various norms like ceiling limit in reservation, etc. 6. Going by Exts.P-1 & P-3, all the 5 posts are earmarked for the internal categories mentioned therein, like the General category, SC, OBC & EWS. 6. Going by Exts.P-1 & P-3, all the 5 posts are earmarked for the internal categories mentioned therein, like the General category, SC, OBC & EWS. By Ext.P-4, the Zila Welfare Officer has forwarded the names of 6 Ex-servicemen and 3 dependents of Ex-servicemen, in response to Ext.P-3 requisition. According to the appellant, his father is an Ex-serviceman who is now holding a post in the Zila welfare Office, and that he is a dependent of Ex-serviceman and therefore, he is eligible for horizontal reservation of Ex-servicemen as envisaged in Exts.P-3 & P-4. 7. The case of the respondent bank is that horizontal reservation to Ex-servicemen category is also regulated by the Government of India norms inasmuch as, the Punjab National Bank is a bank which is fully owned by the Government of India. That, Anx.R-2(a) is the norms issued by the Union Government in the matter of various aspects including horizontal reservation for Ex-servicemen. It is pointed out that para 8 of Anx.R-2(a) would stipulate that horizontal reservation of Ex-servicemen could be considered for two categories namely, firstly for Ex-servicemen disabled either during war or at peacetime, but their disablement should be attributable to military service, etc. Second eligible sub category is that the candidate concerned should be a dependent of a Ex-serviceman or a military personnel who was killed/died in military action. That, in the instant case, the appellant’s father is living and he is having a job and therefore, the appellant cannot be said to a candidate either fulfilling the eligibility conditions of first sub category or second sub category of horizontal reservation of Ex-servicemen, envisaged in Anx.R-2(a) norms of the Union Government. This is the stand of the respondent bank which has been upheld by the learned Single Judge in the impugned judgment. 8. This is the stand of the respondent bank which has been upheld by the learned Single Judge in the impugned judgment. 8. Sri.M.A.Baby, learned counsel appearing for the appellant submits that the language used in Exts.P-3 & P-4 is very clear and crystal inasmuch as, what is stipulated therein is that 2 vacancies are set apart for Ex-servicemen, 1 vacancy set apart for dependent of Ex-servicemen within the overall reservation, and that though the appellant may not come within the first sub category mentioned therein, he certainly would come within the second sub category inasmuch as, he is the son of an Ex-serviceman and the mere fact that his father is now living or that his father has not suffered any disability in military action or that his father is now having a job, etc will not take away the eligibility of the applicant to be considered in the said second sub category envisaged in Exts.P-3 & P-4. 9. After hearing both sides, we are afraid that we are not in a position to countenance said plea of the appellant for reasons more than one. Ext.P-1 selection notification does not speak about horizontal reservation for Ex-servicemen category, whereas it envisages about vertical reservation for SC, ST & OBC and horizontal reservation for EWS. Exts.P-3 & P-4, on which the appellant had placed reliance are internal communications between the respondent Punjab National bank and Zila Sainik Welfare Office of the Government of Kerala. True, that the language employed in Exts.P-3 & P-4 are unhappily worded inasmuch as, it is blandly stated therein that two vacancies are set apart for exservicemen and one vacancy for dependent of Ex-servicemen within the overall reservation. How the overall reservation is worked out in the context of the post being already apportioned in Ext.P-1 for vertical reservation for SC, ST & OBC and horizontal reservation for EWS and the cealing limit etc are not discernible to this Court. However, we would proceed on the premise that the respondent bank has envisaged horizontal reservation even in the category of Ex-servicemen. The respondent Bank is admittedly, a bank which is fully owned by the Government fo India and hence it is legally obliged to follow the norms of reservation including that for horizontal reservation of Ex-servicemen as laid down by the Union Government from time to time. The respondent Bank is admittedly, a bank which is fully owned by the Government fo India and hence it is legally obliged to follow the norms of reservation including that for horizontal reservation of Ex-servicemen as laid down by the Union Government from time to time. There is no dispute that Anx.R-2 (a) is the norms and rules that are now governing the field, which has been laid down by the Union Government. Going by the terms and conditions of para 8 of Anx.R-2(a) norms of the Union Government, horizontal reservation for Ex-servicemen category is given only for 2 sub categories therein, firstly for Ex-servicemen who has suffered disability either during war or in peace time, but such disability should be attributed to military service. Second sub category is in the case of dependents of Ex-servicemen who has been killed in military action. The appellant does not come within the ambit of either of two sub categories envisaged in Anx.R-2(a) rules of the Union Government. Hence, the stand of the respondent bank is unassailable. If the plea of the appellant that the mere wordings of Exts.P-3 & P-4, which are only internal communications and not part of selection notification, should be acted upon, then it would lead to a situation that horizontal reservation should be given merely because a claimant happens to be a son or daughter of an ex-serviceman. 10. It is trite that the very purpose and object for justifying reservation is based on the concept of positive discrimination or affirmative action, which is meant for sections who are suffering disadvantages due to various reasons like historical or social inequities, or due to other reasons inasmuch as they cannot be said to be in level playing field along with other candidates due to their inherent disadvantages, etc. True, that the concept of reservation for Ex-servicemen cannot be said to be one within the domain of vertical reservation which is mainly meant for segments like SC/ST, OBC etc who have suffered social and historic inequities for a very long time. What is involved is horizontal reservation in the case of Ex-servicemen, but even then, it is only a positive discrimination to compensate for the disadvantage or disability suffered by them. What is involved is horizontal reservation in the case of Ex-servicemen, but even then, it is only a positive discrimination to compensate for the disadvantage or disability suffered by them. Therefore, inherently and implicitly, an element of disability or disadvantage should be suffered by the persons who are grouped within the ambit of horizontal reservartion group, especially for dependents of Ex-servicemen. If son or daughter of an ex-serviceman is given horizontal reservation only because he or she happens to be the child of an Ex-serviceman, without insisting for any other aspect, the same may not be justified in terms of the concept of equality and reasonableness, enshrined in Articles 14 & 16 of the Constitution of India. That is why, precisely, the Union Government has laid down in Anx.R-2(a) that it should be given to children of Ex-servicemen who has been killed in military action. The said stand of the Union Government cannot be said to be unreasonable. If the aspect of disability or disadvantage is totally eschewed out and if horizontal reservation is given for children of Ex-servicemen merely because, one is a son or daughter of an Ex-serviceman, where the Ex-serviceman is living and is otherwise employed, etc, then the same will certainly offend the scheme of equality enshrined in Articles 14 & 16 of the Constitution of India. Hence, the abovesaid stand of the respondent bank cannot be faulted by us. Consequently, we are also of the firm view that the learned Single Judge has correctly held that the appellant is not entitled for horizontal reservation inasmuch as, he is not eligible in terms of Ext.R-2(a) norms of the Union Government. 11. Before parting with this case, we would only observe that the respondent bank authorities should be more careful even in using the language given in internal communications like Exts.P-3 & P-4, which are now easily available to the public domain due to the Right to Information Act, 2005, and therefore the exact details as to how horizontal reservation for Ex-servicemen is to be worked out within the overall reservations which is already provided in the Ext.P-1 selection notification, and also that the horizontal reservation for Ex-servicemen should be in tune with the Union Government norms, etc should have been carefully and consciously stated even in internal communications like Exts.P-3 & P-4. If this had been observed, then the abovesaid controversy would not have arisen. If this had been observed, then the abovesaid controversy would not have arisen. We cannot blame the appellant for having pursued this litigation, since as a lay person he would have been guided only by the literal words employed in Exts.P-3 & P-4, even if they are internal communications. Hence, we would only request the learned Standing Counsel for the respondent bank to give necessary advice and instructions to the respondent bank authorities for regulating the future selections. The upshot of above discussion is that the verdict of the learned Single Judge as per the impugned judgment in the present WP(C) does not deserve any interdiction at the hands of this appellate court. Accordingly, the writ appeal will stand dismissed.