Non-Domicile Candidates Not Entitled To Appointment Under 33% Reservation For Punjab Women: Punjab and Haryana High Court

The Punjab and Haryana High Court recently held that the non-domicile women cannot be considered for appointment against the 33% reserved posts for women belonging to Punjab.

The issue before the court was whether the reservation is confined to the women of the State of Punjab or it is applicable to all the women belonging to other states also.

While dismissing the petitions related to the appointments of Junior Engineer (Civil) in various departments of Punjab government, Justice Anil Kshetarpal observed that the rules nowhere provide that the non-domicile women of State of Punjab shall also be entitled to the reservation.

The petitioners before the court claimed that they had cleared the written examination and were also in the merit list but the government failed to appoint them. It was their case that the rules do not make any distinction between the domicile women of Punjab and the non-domicile women candidates.

It was contended by the petitioners that the rules, as were applicable on the date of the issuance of the recruitment notice, provide for 33% reservation for women irrespective of their place of residence and a clarification, if any, cannot be made applicable retrospectively.

Punjab government in response submitted that the decision of the Cabinet dated 18.03.2017 clearly provides for 33% reservation to the women of State of Punjab in direct recruitment of Group-A, B, C and D posts.

The government also said that Punjab Civil Services (Reservation of Posts for Women) Rules, 2020 has been notified and Rule 4 provides for 33% reservation in favour of women in all posts in Group 'A', Group 'B', Group 'C' and Group 'D' services under all the establishments at the stage of direct recruitment.

"The candidatures of the petitioners have not been considered against the reserved posts as they are the non-domicile candidates," the court was told.

Justice Kshetarpal said the cabinet in its meeting held on 18.03.2017 had taken a conscious decision to give 33% reservation “to the women belonging to the State of Punjab.” However, the court also noted that there was an ambiguity on the particular aspect of reservation in the rules.

"However, the rules nowhere provide that the non-domicile women of State of Punjab shall also be entitled to the said reservation. In any case, this ambivalence was removed in the communication issued by the Department of Personnel on 29.01.2021 as well as in February, 2022," it added.

The court then considered the question whether such clarification made by the department can be said to have resulted in the amendment of the rules. The bench said it is a well settled rule that in case of any difficulty, the State Government can issue a clarification in order to fill up the gaps or lacunae.

The court in this regard relied upon Sant Ram Sharma v. State of Rajasthan, AIR 1967 Supreme Court, 1910 in which the Apex Court has held that government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.

The court said the cabinet decision makes it clear the intention of the state government was to grant 33% reservation in direct recruitment to the women of the State of Punjab. 

“On careful reading of Rule 6 of the 2020 Rules, it is evident that the State Government has the enabling power to remove difficulties if any arise while applying the rules. To recapitulate the facts, before the issuance of recruitment notices the communication dated 29.01.2021 was issued by the State Government through the Department of Personnel. In such circumstances, there is no substance in the argument of the learned counsel that once the process of recruitment has already been initiated the subsequent clarification vide communication in February, 2022 shall not be applicable. It is evident that the intention of the State Government is clear like a crystal in the meeting of the Cabinet held on 18.03.2017," said the court.

Hence, the court dismissed the petitions stating that the petitioners have failed to make out a case for the issuance of a writ. "The clarification shall relate back to the date of issuance of the rules because effort is made by the concerned department to implement the decision of the Cabinet," it said.

Advocates Arun Chander Sharma, Mohit Garg and PKS Phoolka represented the petitioners in the three petitions.

Senior Advocate Anmol Rattan Sidhu, Advocate Vikas Chatrath, Advocate Rajesh Narang and others represented different private respondents in the petitions. Senior Advocate Rupinder Khosla also represented some of the applicants.

AAG Charanpreet Singh represented the Punjab government.

Case Title: Kalpana Komal Bhati v. State of Punjab & Ors. and other related matters

Citation: 2023 LiveLaw (PH) 17

Coram: Justice Anil Kshetarpal

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