LPA No. 1680 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.1680 of 2010 (O&M) Date of Decision: 15.12.2010 Haryana Public Service Commission ..Appellant Versus Anil Kumar Yadav and others ..Respondents CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. H.N.Mehtani, Advocate for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M.KUMAR, J. The instant appeal under Clause X of the Letters Patent is directed against judgment dated 7.10.2010 rendered by the Learned Single Judge holding that the writ petitioner-respondents are entitled to be considered for appointment to the post of Haryana Civil Services (Executive Branch) and Allied Services in the category of Ex- servicemen. For the aforesaid view, the learned Single Judge has placed reliance on the Explanation under Rule 2 added on 27.10.1986 in the Rules framed under Article 309 of the Constitution known as Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979. According to the Explanation, the persons serving in Armed Forces in the Union, who, on retirement from service, would come under the category of ex-servicemen, may be permitted to apply LPA No. 1680 of 2010 (O&M) 2 for re-employment one year before the completion of the specified terms of engagement and avail themselves of all concessions available to ex-servicemen but shall not be permitted to leave the uniform until they complete the specified term of engagement in the Armed Forces of the Union (P-8). The learned Single Judge also placed reliance on a judgment of the learned Single Judge rendered in the case of Rohtash Mann v. State of Haryana and others, 2010 (2) SCT 555 and held that the subsequent office memorandum dated 14.4.1987 would not deal in wiping out the Explanation in making those serving officers eligible for a post under the Central Civil Services Rules if they are to retire one year before the completion of the specified terms of engagement. Mr. Mehtani, learned counsel for the Public Service Commission has, however, argued that non-inclusion of Explanation in the memorandum dated 14.10.1987 should be taken to mean that such a category of serving officer can not be included in the definition of Expression `Ex-servicemen' and the Explanation is deemed to be deleted. We have thoughtfully considered the submission made by the learned counsel but are unable to accept the same. It is well settled that the rule framed under proviso to Article 309 of the Constitution can not be replaced by issuance of executive inspection or office memorandum. Therefore, reliance by Mr. Mehtani on the office memorandum dated 14.4.1987 is wholly misplaced. The definition of expression `Ex-servicemen' as given in the aforesaid Explanation and followed in Rohtash Mann's case (supra) as well as by the learned Single Judge in the impugned judgment deserves to be LPA No. 1680 of 2010 (O&M) 3 approved. There is, thus, no merit in the appeal and the same does not warrant admission. Accordingly, appeal fails and the same is dismissed. ( M.M.KUMAR ) JUDGE 15.12.2010 ( RITU BAHRI ) VK JUDGE