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2019 Supreme(Mad) 581
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R. SWAMINATHAN, J.
D. Kuralarasan - Petitioner
Versus
The Joint Secretary, Government of India, Ministry of Defence, Department of Ex Servicemen Welfare, New Delhi & Others - Respondents
W.P.(MD)No. 17414 2018
Decided On : 08-05-2019
For the Petitioner:L. Rajiah, Advocate
For the Respondents:K. Ashok Kumar Ram, Advocate, to M. Rajarajan, Government Advocate
Headnote:
Constitution of India, 1950 - Article 14 and 15(4) - Government medical colleges - Defence personnel - Reservation policy - Father is a Junior Commissioned Officer in Indian Army - After clearing, he applied for an M.B.B.S. seat in one of Government colleges - He was under impression that he will be entitled to benefit of reservation - However, citing G.O (D) No.977, Health and Family Welfare (MCA-1) Department dated he was denied - Hence, this writ petition has been filed for quashing the said Government Order to extent it excludes Wards of Serving Personnel - Respondents 2 to 4 have filed a detailed counter affidavit and learned counsel on either side reiterated contentions set out in respective pleadings - Case of writ petitioner is fairly simple and straightforward - According to him, Department of Ex-servicemen Welfare, Ministry of Defence, Government of India vide communication bearing F.No. dated had set out water fall arrangement in matter of reservations or preferences to wards of Armed Forces Personnel by States/UTs/Central/State Universities/Autonomous Institutions for admission in medical/professional/non-professional course – Held, policy of Government of Tamil Nadu is to confer benefit to defence personnel though it is styled as Ex-servicemen quot - By incorporating remaining three categories, order of preference is not going to be changed - Wards of serving personnel can claim benefit of reservation only if there are surplus seats available after exhausting claimants under categories 1 to - If there are surplus seats and there are only 6 categories, then surplus seats will go to general category - Thus, by not including wards of serving personnel, the policy of Government to benefit defence personnel will be defeated. Including wards of serving personnel alone would ensure that quota is filled up - It may then look like an overladen city bus - But, Court cannot resist recalling a case that came up before me last month - A Kargil war hero who lost a hand and a leg had passed away - In death certificate, usual address of deceased was not given - Instead his fathers address was mentioned - Poor widow had to run from one jurisdictional Tahsildar to another for getting legal heir certificate – Court lamented that it did not occur to Tahsildar to discharge his duties proactively moment noted that application involved family of a deceased army man - Therefore, this Court directs respondents 2 to 4 to include wards of serving personnel under reservation category in prospectus of MBBS/BDS for ensuing years from current academic year - Writ petition is allowed.
1. Wing-Commander Abhinandan Varthaman is an authentic hero of our times. He has since gone back to the thick of action.
2. We all know that he is a Tamilian. Let us imagine that his daughter is an M.B.B.S. aspirant and wants to join one of the Government medical colleges in Tamil Nadu. Can she avail the benefit of the reservation policy meant for defence personnel?. The answer is “No”.
3. If, on the other hand, Abhinandan Varthaman, after his return from Pakistan, had said good bye to defence service, as the daughter of an ex-serviceman, she would be entitled to the benefit of reservation.
4. Does it not sound absurd and irrational? I am not trying to be rhetorical. Rhetoric, of course, has its place in any discourse. It definitely adds spice. But, a judicial verdict has to rest on the surer foundations of law and logic.
5. The illustration I gave is no flight of imagination. These are the hard facts obtaining in the case on hand. Kuralarasan's father is a Junior Commissioned Officer in the Indian Army. After clearing NEET-2018 (National Eligibility cum Entrance Test), he applied for an M.B.B.S. seat in one of the Government colleges in Tamil Nadu. He was under the impression that he will be entitled to the benefit of reservation. However, citing G.O (D) No.977, Health and Family Welfare (MCA-1) Department dated 01.06.2018, he was denied. Hence, this writ petition has been filed for quashing the said Government Order to the extent it excludes the Wards of Serving Personnel.
6. The Respondents 2 to 4 have filed a detailed counter affidavit and the learned counsel on either side reiterated the contentions set out in the respective pleadings. The case of the writ petitioner is fairly simple and straightforward. According to him, the Department of Ex-servicemen Welfare, Ministry of Defence, Government of India vide communication bearing F.No. 6(1)/2017/D(Res.II) dated 30.11.2017 had set out the water fall arrangement in the matter of reservations or preferences to the wards of Armed Forces Personnel by States/UTs/Central/State Universities/Autonomous Institutions for admission in medical/professional/non-professional courses. The said communication reads as under:-
“Priority I: Widows/Wards of Defence Personnel killed in action.
Priority II: Wards of disabled in action and boarded out from service.
Priority III: Widows/Wards of Defence personnel who died while in service.
Priority IV: Wards of disabled in service and boarded out with disability attributable to military service.
Priority V: Wards of Ex-Servicemen and serving personnel who are in receipt of Gallantry Awards:
(i) Param Vir Chakra
(ii) Ashok Chakra
(iii) Sarvottam Yudh Seva Medal
(iv) Maha Vir Chakra
(v) Kirti Chakra
(vi) Uttam Yudh Seva Medal
(vii) Vir Chakra
(viii) Shaurya Chakra
(ix) Yudh Seva Medal
(x) Sena, Nau Sena, Vayu Sena Medal
(xi) Mention-in-Despatches.
Priority VI : Wards of Ex-Servicemen
Priority VII: Wives of:
(i) defence personnel disabled in action and boarded out from service.
(ii) defence personnel disabled in service and boarded out with disability attributable to military service.
(iii) ex-servicemen and serving personnel who are in receipt of Gallantry Awards. Priority VIII: Wards of Serving Personnel. Priority IX: Wives of Serving Personnel.”
7. Such communications are periodically issued with the approval of the competent authority. This communication was followed by a subsequent communication dated 21.05.2018. In both the communications, the petitioner comes under Priority VIII. The grievance of the writ petitioner is that while issuing the impugned Government Order dated 01.06.2018, the Government of Tamil Nadu had left out three categories, namely, Priorities VII to IX. As a result of the omission of the last three categories, the petitioner is unable to avail the benefit of reservation meant for defence personnel. The Government of Tamil Nadu had issued G.O.Ms.No.1142 dated 30.06.1979 indicating that the reservation is for Ex/Deceased/Serving defence perso
