Punjab and Haryana High Court: While dismissing a set of writ petitions seeking directions to the authorities of Punjab Government for appointment of non-domicile candidates on the post of Junior Engineers (Civil), Anil Kshetarpal, J. held that non-domicile women are not entitled to the 33% reservation in service. Further, the State Government has enabling powers to remove any difficulties while implementing the provisions, as done for clarification on reservation only for women belonging to the State of Punjab.

In the case at hand, the petitioners cleared the joint competitive examination conducted by Punjab Public Service Commission (‘PPSC’) and had their names in the merit list, but the State Government failed to appoint them, as claimed by the petitioners. The State has clarified that the petitioners are not entitled to appointment under 33% reservation in favour of women belonging to the State of Punjab, being the non-domicile candidates. The Court considered the following issues while deciding the case:

Issue 1 – Whether the reservation is confined to women of Punjab, or is it applicable to all the women belonging to the other States as well?

The Court referred to the provisions notified under Rule 4 of the Punjab Civil Services (Reservation of Posts for Women) Rules, 2020, (‘Rules 2020’) which specifically deals with the percentage and manner of reservation for women in Groups A, B, C and D. Reference was also made to the decision of the Punjab Cabinet dated 18-03-2017, as reproduced in communication dated 29-01-2021 sent by the Department of Personnel to clarify reservation provisions being specific to the women of Punjab.

Based on the said rules and the letter, the Court saidthat the Cabinet took a conscious decision of giving 33% reservation for women belonging to the State of Punjab, though, while notifying the rules, there was ambiguity on the particular aspect of reservation. However, the rules nowhere provided that the non-domicile women of State f Punjab shall also be entitled to the said reservation.This was further clarified by the Department of personnel in 2021 as well as in 2022

Issue 2 – Whether such clarification made by the Department of Personnel results in amendment of the aforesaid rules?

The Court relied on Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111, wherein it was held that ‘if statutory rules are silent on any particular point, the Government can fill up the gaps, supplement the rules and issue instructions that are not inconsistent with the rules already framed.’

The Court said that the intention of the State Government to grant 33% reservation in direct recruitment to the women of Punjab, was clear from the Cabinet meetingheld on 18-03-2017. It was also noted that the clarification related to 33% reservation for Punjab women shall relate back to the date on which these rules were issued because of the effort made by the respective department for implementing the Cabinet’s decision.

Apart from that, the Court also noted that Rule 6 of 2020 Rules gives enabling power to the State Government to remove difficulties, if any, arise while applying the rules.

Further, the Court rejected the petitioner’s argument that once the process of recruitment has already been initiated the subsequent clarification vide communication in 2022 shall not be applicable

Thus, the Court held that non-domicile women are not entitled to the 33% reservation in service.

[Kalpana Komal Bhati v. State of Punjab, 2023 SCC OnLine P&H 57, decided on 12-01-2023]

Judgment by: Justice Anil Kshetarpal

Advocates who appeared in this case :

For Petitioners: Advocate Arun Chander Sharma, Advocate Rupinder Khosla, Advocate Aman Sharma, Advocate Mohit Garg and Advocate P.K.S. Phoolka;

For Respondents: Advocate Charanpreet Singh, Advocate Vikas Chatrath, Advocate B.P.S. Thakur, Advocate Rajesh Narang, Advocate Abhinav Narang, Advocate Anmol Rattan Sidhu, Advocate Shiv Kumar Sharma and Advocate Ravinder Sampla.

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