Sansar
Chand Atri Vs. State of Punjab & Anr [2002] Insc 173 (2 April 2002)
D.P.
Mohapatra & P. Venkatarama Reddi
With
CIVIL APPEAL NOS.2404-2405 OF 2002 (Arising out of S.L.P.(C) Nos.5338-39 of
2000)
D.P.MOHAPATRA,
J.
Leave
is granted in all the special leave petitions.
The
question that falls for determination in these appeals is whether the
appellants are 'ex-servicemen' for the purpose of appointment under the Punjab
Recruitment of Ex-servicemen Rules (for short 'the Rules') . These appeals are
directed against the common judgment of the High Court of Punjab and Haryana
dismissing the writ petitions filed by the appellants. Since all the writ
petitions were disposed of by the judgment rendered in CWP No.19084/98 filed by
Sansar Chand Atri who is the appellant in the Civil Appeal arising out of S.L.P.©
No.3683 of 2000, the facts in that case are stated for sake of convenience:
In
response to the advertisement dated 16.10.1998 issued by the Punjab Public
Service Commission inviting applications for certain posts of the Punjab Civil
Service (Judicial) Branch, which appeared in the newspaper 'Tribune' on
16.10.98, the appellant submitted an application for appointment against one of
the posts reserved for ex-servicemen. The competitive examination for recruitment
to the post was to commence from 21.12.1998.
The
appellant was informed by the Commission that he could not be considered as an
ex-serviceman as he had been discharged from the Indian Army at his own
request.
Feeling
aggrieved by the action of the Commission in declining consideration of his
candidature as ex-serviceman the appellant filed the aforementioned writ
petition.
The
appellant joined the Indian Army on 8.10.1972 while he was holding the post of Hawaldar.
He was discharged from the Army on 1.11.1990 after rendering 18 years and 24
days' of total service. The 'cause of discharge' described in the discharge
certificate was "under Army Rule 13(3) II (iv) at his own request".
He is drawing pension as an ex-serviceman.
The
question whether the appellant is an ex- servicemen or not is to be determined
on the basis of the provisions of the Punjab Recruitment of Ex-servicemen Rules
1982 as amended by the Notification dated 22.9.1992.
The
said Rules were framed by the Government of Punjab in exercise of the power
conferred by the proviso to Article 309 read with Articles 234 and 318 of the
Constitution. In Rule 2(e) thereof, 'ex-servicemen' is defined as follows:
"Rule
2(e) 'Ex-Servicemen' means a person who joined any rank, whether as a combatant
or as a non-combatant on or after the first day of November, 1962, in the Armed
Forces of the Union, excluding the Assam Rifles, Lock Sahetak Sena, Jammu and
Kashmir Militia, Territorial Army, Defence Security Corps and the General
Reserve Engineering Force, and has been released otherwise than on ground of
misconduct or inefficiency." Rule 3 which makes provision regarding extent
of application provides that the rule shall apply to all the State Civil
Services and posts connected with the affairs of State of Punjab excepting the Punjab Vidhan Sabha
and the Secretariat Services and the Punjab Higher Judicial Service.
In
Rule 4 provision is made for reservation of 15% of the vacancies to be filled
in by direct appointment in all the State Civil Services and posts connected
with the affairs of the State of Punjab to be filled in by recruitment of ex- servicemen. In the proviso to the
said Rule a limit of 50% is prescribed for the total number of reserved
vacancies.
In
Rules 5 to 7 certain relaxations are made regarding the number of attempts
which an ex-serviceman may make in the competitive examination, age limit for
appointment and educational qualification and experience. From the provisions
of the Rule it is clear that its purpose is to benefit the ex-servicemen in
getting appointment to Civil posts under the State.
By the
notification dated 22.9.1992 issued by the State Government certain provisions
of the 1982 Rules were amended. The definition of ex-servicemen in Rule 2©(ii)
was substituted by the provision quoted hereunder:
"Ex-servicemen"
means a person who has served in any rank, whether as a combatant or a
non-combatant in the Naval , Military and Air Force of the Union of India
(hereinafter referred to as the Armed Forces of the Union of India), and who
has :-
(i) retired
from such service after earning his pension; or
(ii)
been released from such service on medical grounds attributable to military
service or circumstances beyond his control and awarded medical or other
disability pension; or
(iii) been
released, otherwise than on his own request from such service as a result of
reduction in establishment, or
(iv)
been released from such service after completing the specific period of
engagement otherwise than at his own request or by way of dismissal or discharge
on account of misconduct or inefficiency and has been given a gratuity.
but
does not include a person who has served in the defence security corps, the
General Reserve Engineering Force the lok Sahayak sena and the para military
forces, but includes personnel of the Lok Sahayak sena of the following
categories, namely ;
(i) pension
holders for continuous embodied services;
(ii) persons
with disability attributable to military service and
(iii) gallantry
award winners.
Explanation : The persons serving in the armed
Forces of the Union, who on retirement from service would come under the
category of 'ex- serviceman' may be permitted to apply for re- employment and
avail themselves of all concessions available to ex-servicemen but shall not be
permitted to leave the uniform until they complete the specific terms of
engagement in the Armed Forces of the Union." (emphasis supplied) The
answer to the question formulated earlier depends on a fair interpretation of
the Rules particularly the Rule laying down the definition of the term
'ex-servicemen'. The Public Service Commission was not inclined to consider the
appellant's candidature in the posts reserved for ex- servicemen because the
appellant had been discharged from service at his own request and had not
retired from the service. The High Court accepted the interpretation made by
the Commission mainly on the ground that in the provisions of the Army Rules a
distinction is maintained between 'discharge', 'retire' and 'release' of army
personnel from the service. The High Court took the view that under the 1982
services rules as amended in 1992 a person who has been released from the
service on his own request as provided in Rule 2(c)(iii) is specifically
excluded from the purview of the term 'ex-servicemen'. Relying on the said
provision the High Court took the view that the appellant has neither retired
from the service nor has been released from service as contemplated under the
aforementioned provision but has been 'discharged ' from service on his own
request. Because of the exclusory definition of the term 'ex- servicemen' the
High Court was not persuaded to accept the claim of the appellant that he
should be considered as an ex-serviceman.
It is
relevant to note here that in the Certificate issued by the Ministry of Defence
the appellant has been described as an ex-serviceman. The provision for
reservation in the service rules is meant for the benefit of ex-servicemen. The
purpose is to provide them with suitable jobs in civil services so that they may
not face difficulty in adjusting themselves in civil society after leaving the defence
service.
In the
context of the scheme of the provision the provisions in the rule should be
interpreted in a purposive and reasonable manner so that the intent and purpose
of the provision is served. From the provisions in the rules it appears that a
distinction has been made by persons who are released from the army on ground
of medical disqualification or on ground of inefficiency or misconduct.
Such
distinction is reasonable keeping in view the purpose of reservation of posts
made under the rules. All the ex- defence service personnel are to be treated
as a class separate from other candidates for the purpose of offer of jobs and
no differentiation or discrimination can be made amongst them unless such
differences are real and substantial. Testing the provisions in this context we
are of the view that a person in the army who has earned pension after putting
in the requisite period of service before leaving the army whether at his own
request or on being released by the employer on any ground should be treated as
an ex-serviceman who has retired from the army. Such treatment is to be meted
out to all such persons irrespective of whether the nomenclature used is 'relieved'
or 'discharged' or 'retired'. If the contention raised on behalf of the Service
Commission and the State Government that since the appellant has been
discharged from the Army at his own request, he cannot be treated as an
ex-serviceman, is accepted then it will create a class within a class without
rational basis and, therefore, becomes arbitrary and discriminatory. It will
also defeat the purpose for which the provision for reservation has been made.
The
High Court, in our view, is not justified in placing reliance on sub-clause (iv)
of the definition clause and excluding the writ petitioners from the eligible
category on that basis. Sub-clause (iv) has no application in the instant case
for the reason that it applies to such of those persons who are relieved from
service after specific period of engagement and become entitled to get
gratuity. If a person, who served in the armed forces, is released after being
granted the benefit of pension, the case is taken out of purview of sub-clause
(iv). The exclusionary words "otherwise than at his own request"
occurring in sub-clause (iv) cannot, therefore, be relied upon to deny the
benefit to the appellants. Then the question arises whether such person would
fall under sub-clause (i)? True, according to the terminology used in the
Service Rules governing the armed forces there is a distinction between
retirement and release/discharge, as pointed out by the High Court. But, in the
context of definition of ex-serviceman in Rule 2(c)(ii), broader meaning has to
be given to the word 'retired' occurring in sub-clause (i). In principle and in
the light of the considerations set out above, there is no rational basis for
excluding those discharged or released from service after earning pension. It
is only after considerable period of satisfactory service a member of armed
forces becomes entitled to pension. The mere fact that after such long period
of service he voluntarily quit the service with the consent of the employer
should not place him in a dis- advantageous position for claiming the benefit
of reservation for ex-serviceman. Therefore, the expression 'retirement' should
be given wider meaning in order to effectuate the objective behind the Rule.
On the
discussions in the foregoing paragraphs the appeals are allowed. The judgment
of the High Court dated 20.9.1999 in CWP No.19084/98 is set aside. It is stated
at the bar that the appellants in these appeals have appeared in the
competitive examination but their results have not been declared. The
respondents will take steps to declare their results forthwith and consider
their case for appointment in terms of the service rules and in accordance with
the law. There will be no order for costs.
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