SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Court On Its Own Motion vs State Of H.P. & Others on 14 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPIL No.114 of 2017
Reserved on : August 13, 2018

.

Decided on : August 14, 2018.

Court on its own motion …Petitioner.
Versus

State of H.P. others …Respondents.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.

For the Petitioner : Mr. Deven Khanna, Amicus Curiae.

For the Respondents : Mr. Ashok Sharma, Advocate
General, with Mr. Ranjan Sharma
and Ms Ritta Goswami, Additional
Advocates General.

Sanjay Karol, Acting Chief Justice

Letter petitioners Ms Rekha Sharma and Ms

Geeta Sharma, daughters of late Shri Het Ram Sharma (a

Freedom Fighter), resident of Dadyal (Sundernagar),

District Mandi, Himachal Pradesh, have highlighted a vital

issue of public importance, i.e. of gender discrimination,

in the State Policy, providing reservation in Government

jobs to the wards of Freedom Fighters.

16/08/2018 22:59:12 :::HCHP

…2…

2. The questions, which arise for consideration in

the present petition are:

1. Whether Policy of the State, providing

.

reservation for recruitment, confined only to

the unmarried daughters, unlike sons, who
are married, is discriminatory or not?

2. If the marital status of a son does not make

any difference in law, qua his entitlement or
eligibility as a descendent, then why should
marital status of a daughter, in terms of
constitutional values, make any difference?

3. Whether there is a nexus with the objects

sought to be achieved by the said action of
the State?

3. Quite apparently, as per Policy of the State,

married daughters and granddaughters of a Freedom

Fighter, unlike sons and grandsons, are excluded from

the benefit of reservation in jobs.

4. From the response, so filed by the State,

averments made by the letter petitioners are found to be

correct. However, State justifies such action, by stating

that “the issue of providing reservation in services for the

children/grandchildren of Freedom Fighters was engaging

attention of the Government since long. However, after

thoughtful consideration of whole matter it has decided in

the year 1984 that 2% reservation in services be

provided to the children/grandchildren belonging to the

State of H.P. in direct recruitment to all services/posts i.e.

16/08/2018 22:59:12 :::HCHP
…3…

Class-I to IV including all Public Sector Undertakings/

Board/Corporation. Since 1984, 2% reservation is being

provided to the Children/grandchildren of Freedom

.

Fighters. As per Scheme, the benefit of reservation is

applicable in respect of sons/grandsons, daughters/

granddaughters of Freedom Fighters. The employed

children/grandchildren and married daughters/

granddaughters of Freedom Fighters have been excluded

from the scheme. So far as the question regarding giving

reservation quota to the married Daughters/ grand-

daughters of Freedom Fighters is concerned, it is

submitted that status of a married woman has to be

construed in consonance with the general understanding

of the word family as well as a status of married woman

in the society. After marriage a married woman loses the

status of being a member of parent’s family though

married daughter/granddaughters after marriage do not

lose status of member of undivided family of her father

for the purpose of property. Keeping this background in

view it is not legally sustainable to include the married

daughters/grand-daughters in reservation scheme.

However, the divorced daughters/ grand-daughters and

widow daughters/granddaughters who have not

16/08/2018 22:59:12 :::HCHP
…4…

remarried have been legitimately and legally brought

within the ambit and scope of definition of dependent of

Freedom Fighters provided they are residing with and/or

.

fully dependent on the family of Freedom Fighters”.

(Emphasis supplied)

5. In crux, it is the State’s stand that with the

solemnization of marriage, daughter severs her

relationship with her parental family, for she gets

“transplanted” into the family of her husband, and as

such, cannot claim herself to be part of family of a

Freedom Fighter.

6. Also, earlier decision rendered by this Court in

CWP No.4386 of 2015, titled as Neelam Kumari v. State of

H.P. others, for complying with the decision rendered in

another writ petition, being CWP No.2958 of 2009, titled

as Jyoti Kumari others v. Secretary Education

another, is now subject matter of challenge before the

Supreme Court of India.

7. On 8.11.2017, this Court passed the following

order:

“Whether granting benefit of reservation of
2%, in employment under the State, only to
children and particularly unmarried daughters of
freedom fighters, is voilative of Articles 14-16 of
the Constitution of India, is the issue which arises

16/08/2018 22:59:12 :::HCHP
…5…

for consideration in the petition. Also, whether
issue of discrimination on the basis of gender with
the ward solemnizing marriage arises at all or not,
needs to be examined.

On a letter petition addressed to the Chief

.

Justice of this Court, suo motu cognizance was

taken and present petition was registered as
CWPIL. The issue raised is of prime importance
and significance.

Let the Chief Secretary to the Government
of Himachal Pradesh, file his personal affidavit
placing on record policy of the State and the
reasons in support thereof.

State shall also examine issue more so in
light of law laid down by Apex Court in C.B.
Muthamma v. Union of India and others, 1979(4)
SCC 260 and other subsequent judgments.
Needful be done within two weeks.

List on 29.11.2017.

………………”

8. Pursuant thereto, the Chief Secretary,

Government of Himachal Pradesh, has filed his personal

affidavit dated 5.12.2017, stating that definition of a

“Freedom Fighter” stands explained vide Circulars dated

17.12.1985 and 21.12.1985, so as to mean:

“i) the person who has been sanctioned or will

be sanctioned freedom fighters pension
under the Freedom fighters pension scheme,
1972 and 1980 by the Government of India,
Ministry of Home Affairs, New Delhi.

or

ii) The person who is receiving or will be
granted financial assistance under the H.P.
Freedom Fighters Financial Assistance
Scheme, 1985.

16/08/2018 22:59:12 :::HCHP

…6…

iii) Only the children of the son of the freedom
fighter will be taken under the definition of
grand children of freedom fighters.”

9. Stand taken by the Government, as reflected

.

in the earlier reply-affidavit dated 10.10.2017, filed by

the Deputy Secretary (GAD) to the Government of

Himachal Pradesh, stands reiterated, further averring

that “According to common knowledge and general

understanding the married daughter does not constitute

to be a part of the family in its real sense. A daughter of

a freedom fighter after her marriage, gets herself

transplanted into the family of her husband and cannot,

therefore, be claimed to be a part of the family in its real

sense of the freedom fighter her father at least for

anything relating to her children”.

10. In effect, the Government of the day

reiterated that a married daughter gets “transplanted”

into the family of her husband, severing her relationship

with that of her paternal family, and as such is not

entitled to the benefits of the Policy of reservation in the

Government jobs.

11. We find the stand adopted by the State to be

absolutely archaic and disappointing. It is certainly not in

16/08/2018 22:59:12 :::HCHP
…7…

tune with the changing times. In fact, it is out of sync

with the constitutional values and principles. Predominant

mindset of male chauvinism is all pervading.

.

12. However, subsequently to Ishaan Pandit

Kinjlak M. Kalia (supra), even this Court in CWP No.2958

of 2009, titled as Jyoti Kumari others v. The Secretary

Education another, decided on 18.5.2015, has taken a

contrary view, the one view which we are following.

13.

We follow the subsequent decisions of the

same Coordinate Benches on this issue.

persuaded to so for two reasons – (i) decision of 1999 has
We are

lost is efficacy, (ii) much water has flown from since then

and the law in sync with constitutional values stands

crystalised by different courts of the country.

14. Long ago, the Apex Court in Miss C.B.

Muthamma, I.F.S. v. Union of India others, (1979) 4 SCC

260 (Two Judges), had an occasion to deal with Rule 8(2)

of the Indian Foreign Service (Conduct and Discipline)

Rules, 1961, providing that no married woman shall be

entitled, as of right, to be appointed to the service.

Though during the pendency of the petition, the said Rule

stood deleted, but, while disposing of the petition, the

Court observed that:

16/08/2018 22:59:12 :::HCHP

…8…

“6. At the first blush this rule is in defiance of
Article 16. If a married man has a right, a married
woman, other thing being equal, stands on no
worse footing. This misogynous posture is a
hangover of the masculine culture of manacling
the weaker sex forgetting how our struggle for

.

national freedom was also a battle against

woman’s thraldom. Freedom is indivisible, so is
Justice. That our founding faith enshrined in
Articles 14 and 16 should have been tragically
ignored vis-à-vis half of India’s humanity, viz., our

women, is a sad reflection on the distance
between Constitution in the book and Law in
action. And if the Executive as the surrogate of
Parliament, makes rules in the teeth of Part III,
especially when high political office, even

diplomatic assignment has been filled by women,
the inference of die-hard allergy to gender parity
is inevitable.”

“9. Subject to what we have said above, we do

not think it necessary to examine the averments

of mala fides made in the petition. What we do
wish to impress upon Government is the need to
overhaul all Service Rules to remove the stain of
sex discrimination, without waiting for ad hoc
inspiration from writ petitions or gender charity.”

(Emphasis supplied)

15. In Dr. Mrs. Vijaya Manohar Arbat v. Kashirao

Rajaram Sawai another, (1987) 2 SCC 278 (Two

Judges), the Apex Court, while construing the provisions

of Section 125 of the Code of Criminal Procedure,

entitling a parent to claim maintenance, by interpreting

expression ‘his’, held both the siblings, i.e. son and the

daughter, liable for the same.

16. Lateron, in Savita Samvedi (Ms) another v.

Union of India others, (1996) 2 SCC 380 (Two Judges),

16/08/2018 22:59:12 :::HCHP
…9…

while dealing with a Railway Circular, entitling unmarried

daughter alone for allotment of Railway accommodation,

on out of turn basis, the Apex Court held the same to be

.

unconstitutional, in violation of Article 14 of the

Constitution of India, holding the married daughter to be

at par with an unmarried one.

17. The Apex Court in Madhu Kishwar v. State of

Bihar, (1996) 5 SCC 125 (Three Judges), has held that

Article 21 of the Constitution of India reinforces “rights to

life”. Equality, dignity of person and right to development

are inherent rights in every human being. Life in its

expanded horizon includes all that give meaning to a

person’s life including culture, heritage and tradition with

dignity of person. The fulfilment of that heritage in full

measure would encompass the right to life. For its

meaningfulness and purpose every woman is entitled to

elimination of obstacles and discrimination based on

gender for human development. Women are entitled to

enjoy economic, social, cultural and political rights

without discrimination and on footing of equality. Equally,

in order to effectuate fundamental duty to develop

scientific temper, humanism and the spirit of enquiry and

to strive towards excellence in all spheres of individual

16/08/2018 22:59:12 :::HCHP
…10…

and collective activities as enjoined in Article 51A (h) and

(j) of the Constitution of India, not only facilities and

opportunities are to be provided for, but also all forms of

.

gender based discrimination should be eliminated. It is a

mandate to the State to do these acts. Therefore, the

State should create conditions and facilities conducive for

women to realise the right to economic development

including social and cultural rights. Also that:

“37. The

public policy and constitutional
philosophy envisaged under Articles 38, 39, 46,
and 15(1) and (3) and 14 is to accord social and
economic democracy to women as assured in the

preamble of the economic empowerment and

social justice to women for stability of political
democracy. In other words, they frown upon
gender discrimination and aim at elimination of
obstacles to enjoy social, economic, political and
cultural rights on equal footing. Law is a living

organism and its utility depends on its vitality and
ability to serve as sustaining pillar of society .
Contours of law in an evolving society must
constantly keep changing as civilisation and

culture advances. The customs and mores
undergo change with march of time. Justice to the
individual is one of the highest interest of the

democratic State. Judiciary cannot protect the
interests of the common man unless it would
redefine the protections of the Constitution and

the common law. If law is to adapt itself to the
needs of the changing society, it must be flexible
and adaptable.”

“39. Law is the manifestation of principles of
justice, equity and good conscience. Rule of law
should establish a uniform pattern for harmonious
existence in a society where every individual
would exercise his rights to his best advantage to
achieve excellence, subject to protective
discrimination. The best advantage of one person

16/08/2018 22:59:12 :::HCHP
…11…

could be the worst disadvantage to another. Law
steps into iron out such creases and ensures
equality of protection to individuals as well as
group liberties. Man’s status is a creature of
substantive as well as procedural law to which
legal incidents would attach. Justice, equality and

.

fraternity are trinity for social and economic

equality. Therefore, law is the foundation on which
the potential of the society stands………”

18. In a case where an Act prohibited employment

of women in any part of the premises where liquor was

consumed by the public, the apex Court, relying upon the

Convention on the Elimination of All Forms of

Discrimination against Women, 1979 and the Beijing

Declaration, as also the earlier judgments rendered in Air

India v. Nergesh Meerza, (1981) 4 SCC 335; Randhir

Singh v. Union of Inida, (1982) 1 SCC 618; Madhu Kishwar

v. State of Bihar, (1996) 5 SCC 125; Vishaka v. State of

Rajasthan, (1997) 6 SCC 241; MCD v. Female Workers

(Muster Roll), (2000) 3 SCC 224; and Liverpool London

S.P. I. Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC

512, the Apex Court in Anuj Garg others v. Hotel

Association of India others, (2008) 3 SCC 1 (Two

Judges), observed that:

“21. When the original Act was enacted, the
concept of equality between two sexes was
unknown. The makers of the Constitution intended
to apply equality amongst men and women in all
spheres of life. In framing Articles 14 and 15 of the
Constitution, the constitutional goal in that behalf

16/08/2018 22:59:12 :::HCHP
…12…

was sought to be achieved. Although the same
would not mean that under no circumstance,
classification, inter alia, on the ground of sex
would be wholly impermissible but it is trite that
when the validity of a legislation is tested on the
anvil of equality clauses contained in Articles 14

.

and 15, the burden therefor would be on the

State. While considering validity of a legislation of
this nature, the court was to take notice of the
other provisions of the Constitution including
those contained in Part IV-A of the Constitution.”

(Emphasis supplied)

In the very same Report, the Court further took note of

the changing global scenario and the factum of the hotel

management having opened up vista for young women

for employment. It re-affirmed that right of employment

itself may not be a fundamental right but in terms of

Articles 14 16, each person, similarly situate, has a

fundamental right to be considered therefor.

19. In National Legal Services Authority v. Union of

India others, (2014) 5 SCC 438 (Two Judges), the Apex

Court observed that:

“The rule of law is not merely public order.
The rule of law is social justice based on public
order. The law exists to ensure proper social life.

Social life, however, is not a goal in itself but a
means to allow the individual to live in dignity and
development himself. The human being and
human rights underlie this substantive perception
of the rule of law, with a proper balance among
the different rights and between human rights and
the proper needs of society. The substantive rule
of law “is the rule of proper law, which balances
the needs of society and the individual”. This is
the rule of law that strikes a balance between
society’s need for political independence, social

16/08/2018 22:59:12 :::HCHP
…13…

equality, economic development, and internal
order, on the one hand, and the needs of the
individual, his personal liberty, and his human
dignity on the other. It is the duty of the Court to
protect this rich concept of the rule of law.”

(Emphasis supplied)

.

20. In Charu Khurana others v. Union of India

others, (2015) 1 SCC 192 (Two Judges), noticing that only

women makeup artists were declined membership of an

association, holding such action to be unconstitutional,

the Apex court observed that:

“3. Giving emphasis on the role of women, Ralf
Waldo Emerson, the famous American Man of
Letters, stated “A sufficient measure of civilization

is the influence of the good women”. Speaking
about the democracy in America, Alexa De

Tocqueville wrote thus: “If I were asked…. to what
singular prosperity and growing strength of that
people (Americans) ought mainly to be attributed.
I should reply; to the superiority of their women”.
One of the greatest Germans has said: “The

Eternal Feminine draws us upwards”.

4. Lord Denning in his book Due Process of Law
has observed that a woman feels as keenly thinks

as clearly, as a man. She in her sphere does work
as useful as man does in his. She has as much

right to her freedom-develop her personality to
the full-as a man. When she marries, she does not
become the husband’s servant but his equal
partner. If his work is more important in life of the

community, her’s is more important in the life of
the family. Neither can do without the other.
Neither is above the other or under the other.
They are equals.”

“8. The equality principles were reaffirmed in
the Second World Conference on Human Rights at
Vienna in June 1993 and in the Fourth World
Conference on Women held in Beijing in 1995.
India was a party to this Convention and other
Declarations and is committed to actualize them.

16/08/2018 22:59:12 :::HCHP

…14…

In 1993 Conference, gender-based violence and all
categories of sexual harassment and exploitation
were condemned. A part of the Resolution reads
thus:

“The human rights of women and of

.

the girl child are an inalienable, integral and

indivisible part of universal human rights.
The World Conference on Human Rights
urges governments, institutions,
intergovernmental and non-governmental

organizations to intensify their efforts for the
protection of human rights of women and
the girl child.””

“32. The purpose of referring to the same is to

understand and appreciate how the Directive
Principles of State Policy and the Fundamental
Duties enshrined Under Article 51A have been
elevated by the interpretative process of this
Court. The Directive Principles have been

regarded as soul of the Constitution as India is a

welfare State. At this juncture, it is apt to notice
the view expressed by a two-Judge Bench of this
Court in Ashoka Smokeless Coal India (P) Ltd. v.
Union of India, (2007) 2 SCC 640 wherein it has
been laid down that:

“106. …. the Directive Principles of State
Policy provide for a guidance to
interpretation of fundamental rights of a

citizen as also the statutory rights.””

21. In Ishan Pandit v. State of H.P. others, AIR

1999 HP 1, this Court, in dealing with a case of

reservation provided for admission to MBBS/BDS Courses,

restricted only to the male members of the Freedom

Fighter, did uphold the view propagated by the State in

its response. This decision stands subsequently followed

by another Division Bench of this Court in Kinjlak M. Kalia

16/08/2018 22:59:12 :::HCHP
…15…

v. Himachal Pradesh Krishi Vishvavidyala, 2000 (3) Shim.

LC 413.

22. A Full Bench of the Jammu and Kashmir High

.

Court in State of Jammu and Kashmir v. Dr. Susheela

Sawhney, AIR 2003 Jammu and Kashmir 83, had an

occasion to deal with a question, whether marriage of

daughter of a permanent resident of the State of Jammu

and Kashmir to a non-resident, would disentitle her from

r to
acquisition of immoveable property in the State, and lose

right for employment in the State or not.

appreciating various principles, the Court eventually held
After

that daughter of a permanent resident, on marrying a

non-resident, would not lose her status of permanent

resident of the State of Jammu and Kashmir.

23. We notice that, under the instant Policy, the

object and purpose of providing reservation is to confer

benefit upon the wards of the Freedom Fighters. Stand

taken by the State that daughter gets transplanted into

the family of her husband, in view of what the Hon’ble

Supreme Court has observed, noticed by us supra, is not

in tune with the changing times. The primary object and

purpose of the Policy is not to confer benefits only on the

male members of the Freedom Fighters. It is to

16/08/2018 22:59:12 :::HCHP
…16…

acknowledge the sacrifices made by the Freedom

Fighters, by giving employment to their wards.

24. It is a settled principle of law that classification

.

must not be arbitrary, but must be rational. It must not

only be based on some qualities or characteristics which

are to be found in all the persons grouped together and

not in others who are left out but those qualities or

characteristics, must have a reasonable relation to the

conditions

classification
must

must
be

object of the legislation. In order to pass the test, two

fulfilled,

be founded
namely,

on
(1)

an
that the

intelligible

differentia which distinguishes those that are grouped

together from others and (2) that that differentia must

have a rational relation to the object sought to be

achieved by the Act/Policy. The differentia which is the

basis of classification, and the object of the Act are

distinct things and what is necessary is that there must

be a nexus between them.

25. We notice that there is 2% reservation for the

Wards of Freedom Fighters in Civil appointment of the

State and in various corporations and boards of the State.

However, the same has been limited only to the sons,

grandsons, unmarried daughters and un-married

16/08/2018 22:59:12 :::HCHP
…17…

granddaughters. Whereas married sons and grandsons

are entitled to enjoy the said benefit of reservation,

married daughters and granddaughters have not been

.

considered as Wards of Freedom Fighters and are, thus,

not eligible to be considered against the quota of

reservation meant for wards of Freedom Fighters.

26. This has to be tested on the provisions of the

Constitution, specifically Articles 14 and 15(1), and 16 of

the Constitution, relating to “discrimination on the basis

of sex”. Sons and grandsons of freedom fighters are

eligible to be considered for the quota under the category

“Wards of Freedom Fighters” even though married, but

not the married daughters and granddaughters.

27. The primary object to provide employment to

wards of freedom fighters is to recognize the outstanding

services rendered by them to the Nation during struggle

for Independence and thus their wards are given benefit

towards employment by making reservation to them

under the category of “Wards of Freedom Fighters”. In

our considered view, Daughters and Granddaughters,

even if married, would be eligible for public employment.

28. A Full Bench of the High Court of Calcutta in

WPST No.447 of 2013, titled as The State of West Bengal

16/08/2018 22:59:12 :::HCHP
…18…

others v. Purnima Das others, has also taken a

similar view, wherein it has been held that exclusion of

any member of a family on the ground that he/she is not

.

so dependent would be justified, but certainly not on the

grounds of gender or marital status.

29. Dealing with an identical issue, in Santosh

Kumar Upadhayay v. State of U.P. and others, (2016) 1

ILR (All) 153, the High Court of Allahabad held that it

would be anachronistic to discriminate against married

daughters by confining the benefit of the horizontal

reservation in this case only to sons (and their sons) and

not to unmarried daughters. If the marital status of a son

does not make any difference in law to his entitlement or

to his eligibility as a descendant, equally, the marital

status of a daughter should in terms of constitutional

values make no difference. The notion that a married

daughter ceases to be part of the family of her parents

upon her marriage must undergo a rethink in

contemporary times. The law cannot make an

assumption that married sons alone continue to be

members of the family of their parents, and that a

married daughter ceases to be a member of the family of

her parents. Such an assumption is constitutionally

16/08/2018 22:59:12 :::HCHP
…19…

impermissible because it is an invidious basis to

discriminate against married daughters and their

children. A benefit which a social welfare measure grants

.

to a son of a freedom fighter, irrespective of marital

status, cannot be denied to a married daughter of a

freedom fighter.

30. We find that another Division Bench of the

Allahabad High Court in Writ Petition No.41279 of 2014,

titled as Isha Tyagi v. State of U.P. others, while taking

a similar view, has observed that the “State Government

has taken a policy decision to grant a horizontal

reservation of 2% to the descendants of freedom fighters.

While doing so, the State Government has qualified the

condition of eligibility by stipulating that a son or a

daughter would be entitled to the benefit of the

reservation. However, it has been stated in the relevant

condition that the law department had opined that this

benefit can be extended only to an unmarried daughter

of a freedom fighter. Consequently, whereas the son’s

son would be eligible to apply for admission, the children

of a daughter stand excluded. Exclusion of a

granddaughter is plainly an act of hostile discrimination

which is violative of the fundamental right guaranteed

16/08/2018 22:59:12 :::HCHP
…20…

under Articles 14 and 15 of the Constitution. The

condition which has been imposed by the State does not

prescribe financial dependence. In fact, the clarification is

.

to the effect that it is not necessary that the son of a

freedom fighter should be financially dependant upon

him. The basis and object of the horizontal reservation of

2% is to recognise the seminal role in the freedom

struggle played by freedom fighters. It is in recognition of

their contribution to the freedom struggle that a benefit

of reservation is extended to descendants of freedom

fighters. This being the rationale, there is no reason or

justification to exclude a married daughter and

consequently the children of a married daughter. Once a

decision has been taken to extend the benefit of

horizontal reservation to descendants of freedom

fighters, whether the descendant is a son or a daughter

should make no difference whatsoever. In fact, any

discrimination against a daughter would be plainly

discrimination on grounds of gender. The guarantee

under Article 15 of the Constitution is broad enough to

encompass gender discrimination and any discrimination

on grounds of gender fundamentally disregards the right

to equality, which the Constitution guarantees”.

16/08/2018 22:59:12 :::HCHP

…21…

31. The action of the respondents by not giving

reservation to married women and not allotting them

Wards of Freedom Fighter Certificate, is illegal and

.

arbitrary and an example of colorable exercise of power,

for marriage does not have and should not have a

proximate nexus with identify. The identity of a woman,

as a woman continues to subsist even after and

notwithstanding her marital relationship. The time has,

therefore, come for the Court to affirmatively emphasise

that it is not open to the State, if it has to act in

conformity with the fundamental principles of equality

which are embodied in Articles 14 and 15 of the

Constitution, to discriminate against married daughters

by depriving them of the benefit of the reservation, which

is made available to a son irrespective of his marital

status.

32. This Court in Jyoti Kumari (supra) and Neelam

Kumari (supra) has taken a similar view. Noticeably, the

State having preferred, SLP No.31435 of 2016, titled as

H.P. Secretariat Chief Secretary others v. Neelam

Kumari, but, as on date, the efficacy of these decisions

remains in place.

16/08/2018 22:59:12 :::HCHP

…22…

33. Thus, we hold that the Policy of the State,

confining benefits to the unmarried daughter alone,

unlike married son, is not in line with the object, which is

.

sought to be achieved by conferring benefit of

reservation, horizontal in nature, to the wards of Freedom

Fighters. The object is to acknowledge the sacrifices

made by the Freedom Fighters, by providing benefit to

their wards. It is not to perpetuate the lineage of legacy

34.

r to
only through a male descendent. The object also cannot

be to perpetuate discrimination on the basis of sex.

We are of the considered view that, of late,

consistently, this Court has taken a view that the State

cannot discriminate on the ground of gender, while giving

benefit of reservation only to the married sons and not

the married daughters, being wards of the Freedom

Fighter. The Policy to this extent is absolutely arbitrary

and illegal and thus needs to be quashed and set aside.

Ordered accordingly.

35. The questions are, thus, answered as under,

by holding that {(1) (2)} the Policy of the State is

discriminatory, and (3) in confining benefits of

reservation to married sons unlike married daughters,

16/08/2018 22:59:12 :::HCHP
…23…

there is no nexus with the object sought to be achieved in

providing reservation for wards of Freedom Fighters.

36. Hence, present petition stands disposed of, in

.

the aforesaid terms, so also pending application(s), if

any.

We place on record our appreciation for the

assistance rendered by Mr. Deven Khanna, learned

Amicus Curiae. He undertakes to inform the letter

petitioners about the outcome of the present petition.

Learned Advocate General undertakes to communicate

the order to the Chief Secretary, Government of Himachal

Pradesh, for taking consequential action.

( Sanjay Karol ),
Acting Chief Justice

( Sandeep Sharma ),
August 14, 2018(sd) Judge.

16/08/2018 22:59:12 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh