IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11520 of 2007 SURESH MISHRA, son of late Ram Surat Mishra, resident of village Soti Bheriyahi, P.S. Kanti, District Muzaffarpur … Petitioner Versus 1. THE UNION OF INDIA through Secretary, Ministry of Defence, South Block, New Delhi 2. The Chief of Army Staff South Block, New Delhi 3. Director Personnel, Co-ordination and Personnel Directorate/ ELA Engineer-in- Chief’s Branch, Army Headquarters, Kashmir House, Rajaji Marg, New Delhi 4. Officer In-charge, Records, Bengal Engineers Group, Roorkee 5. The Chief Engineer, Delhi Zone, Delhi Cantt 10 6. The Headquarters Commander, Works Engineer (Utility), Delhi Cantt 10 7. The Garrison Engineer (Utility), Water Supply Delhi Cantt 10 8. The Lt. Colonel GSO/ Engineer (Pers), New Delhi … Respondents ----------- 3. 2.5.2011 Heard counsel for the petitioner and the counsel for the respondents. As with regard to the following prayer made by the petitioner in this writ application: “That this application is being filed for issuance of a writ in the nature of certiorari or any other appropriate writ or writs for quashing the order dated 10.3.2000 passed by Sri A.K.Juyal, Lt. Colonel, GSO.Engrs (Pers.) by which the appeal of the petitioner was rejected. This writ application is further being filed for setting aside the signed dated 11.7.2005 2 whereby an illegal and arbitrary dates of 1.1.1006 to 30.6.2006 have been fixed for consideration for deputation cum re-employment (hereinafter to be referred as DCRE) and for issuance of a writ of mandamus or any other appropriate writ or writs commanding the respondents to consider the application of the petitioner for re-employment and consider his case in accordance with statutory rules and orders and standing operating procedure (hereinafter to be referred as S.R.O. and S.O.P. respectively) as he is fulfilling the other qualifications and for issuance of directions to grant reemployment to the petitioner against the post of lower division clerk in 10% quota of Ex-servicemen from 1.1.2006 alongwith all other consequential benefits.” learned counsel for the petitioner would submit that when a statutory notification was issued by the Ministry of Defence of Govt. of India fixing the date of extending the benefit of deputation cum re-employment for the army personnel and the petitioner also had qualified in terms of the aforementioned notification, his case could not have been rejected simply because the 3 infra-structure for the same was not ready due to which departmental instructions had been issued shifting such date of commencement. Learned counsel for the petitioner in this context has firstly referred to the notification dated 18.8.2004 which was published in the official gazette on 4.9.2004 contemplating filling up of 10% of post of Lower Division Clerk by way of deputation/ reemployment for Ex-service man. He had then referred to the communication dated 25th May, 2005 of the Engineer-in-Chief of the Army Headquarter wherein it was clearly mentioned that the Armed Force Personnel from Corps of Engineers due to retire or to be transferred to reserve within a period of one year possessing the requisite qualification and experience could be given deputation from the date on which they were due for release from the Armed Forces, whereafter they could also be re- employed as civilian employees. In fact the said policy issued by the Army Headquarter dated 25.5.2005 in the submission of learned counsel for the petitioner had itself 4 contemplated the dates on which such application could be filed as would be evident from reading of paragraph 9 thereof under the caption "Time schedule for submission of application". In this regard it has ben also explained that the petitioner’s application was filed within the prescribed period, inasmuch as the petitioner due to retire from Army service with effect from 1.1.2006 had already submitted his application on 19.4.2005 followed by another reminder dated 28.7.2005 but these applications were rejected on the ground mentioned in the impugned order that as per Army Headquarters communication dated 25.5.2005 read with signal message dated 11th July, 2005 deputation cum reemployment was only applicable to those persons who were due for retirement with effect from January, 2006 i.e. with effect from 1st February, 2006. Learned counsel for the petitioner, therefore, had submitted that once the said notification dated 18.8.2004 had already come into force on publication in gazette on 4.9.2004 by laying down provisions in terms 5 of proviso to Article 309 of the Constitution of India, as would be evidenced from the preface of the aforesaid notification dated 18.8.2004, there could be no question for shifting the date of its commencement or applicability. Learned counsel for the petitioner has also taken a plea that since the petitioner on the date of his retirement on 1.1.2006 was aged about 49 years, had his case been considered for his deputation cum reemployment, he could have continued in service till completion of his 60 years of age i.e. almost upto 2016. In this context he has also placed reliance on an unreported judgment of Delhi High Court dated 7.2.2008 in WP(C) No. 2411/2006 in the case of Gurlaljit Singh Sandhu vs. Union of India & ors., wherein the Delhi High Court following the ratio of the judgment of the Apex Court in the case of Union of India vs. Charanjit Singh Gill & ors., reported in (2000) 5 SCC 42 as also an earlier judgment of Delhi High Court in the case of Lt. General R.C.Kochar vs. Union of India & ors., reported in 2000(2) SLJ 388, had held that the notification dated 4th 6 September, 2004 enforcing the Military Engineering Services Group-C (Assistant, UDC and LDC) Recruitment Rules, 2004 with effect from 4.9.2004 having been provided in the notification itself, could not have been varied to the disadvantage of the persons entitled for its benefit by issuing some executive instructions. Counsel for the Union of India representing the Respondent Army authorities has not been able to justify the impugned order rejecting the case of the petitioner and he has only reiterated the same facts what has been stated in the counter affidavit. He has however submitted that true it is that the notification came into force with effect from 4.9.2004 but then as the necessary modalities for doing the needful for screening of the eligible candidates by way of deputation cum reemployment was yet to be finalized by the Army Headquarters and therefore when such date was fixed with effect from 1.2.2006 the case of no person including that of the petitioner could have been considered from an earlier date specially when the 7 petitioner had also retired with effect from 1.1.2006 after completion of his period of service on 31.12.2005. In the considered opinion of this Court the aforesaid submission of the learned counsel for the respondents has to be noted only for its being rejected. A right of consideration which was vested in the petitioner for his being taken into the extended service by way of deputation cum reemployment at a point of time when he was continuing in service could not have been taken away either on account of fixation of a subsequent date under the executive instructions issued later on changing the date of enforcement of the policy from 4.9.2004 to 1.2.2006. The 10% post which had to be filled up from amongst the Ex-service men had to be counted from the date of commencement of the rules i.e. with effect from 4.9.2004 and therefore, it would be wholly illogical to deprive the petitioner who also was continuing in service as on 4.9.2004 for being considered for deputation cum reemployment. It is exactly this very aspect of the matter which also has been 8 considered held and approved by Delhi High Court in the case of Gurlaljit Singh Sandhu (supra) based on the judgment of Apex Court in the case of Charanjit Singh (supra). That being so, this Court also will have no hesitation in allowing the writ application by quashing the impugned orders dated 10.3.2000 and 11.7.2005 and remitting the matter back to the respondents to reconsider the case of the petitioner for his reemployment within a period of three months from the date of receipt/production of a copy of this order and in the event the petitioner is found otherwise eligible for such reemployment, though he may not be given the salary and emoluments for the intervening period between 1.1.2006 and till date but his continuity in service for the purposes of retirement benefit will have to be given by treating the petitioner to have got such reemployment with effect from 1.1.2006. It is, however, made clear that this Court has not adjudicated the case of the petitioner on merit as to whether he is otherwise fit for reemployment, an aspect 9 which has to be definitely examined by the Army authority strictly in accordance with the provisions made in the notification and relevant the Army Rules. With the aforementioned observation and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/