Civil Writ Petition No.12693 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.12693 of 2009 Date of decision: 07.10.2010 Ravinder and others ...Petitioners Versus Haryana Public Service Commission ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Anurag Goyal, Advocate for Mr. Maonj Chahal, Advocate for the petitioner. Mr. H.N. Mehtani, Advocate for the respondent. RANJIT SINGH J. Three petitioners have approached this Court through the present writ petition with the prayer to consider their claim for appointment to the post of HCS (Executive Branch) and Allied services in the category of Ex-serviceman. Their application for being considered for appointment in the said category was rejected on the ground that they were still in service of Air Force. The petitioners have, therefore, approached this Court for being treated in the category of Ex-serviceman as they were due for retirement on superannuation within one year. Their claim is that they can be considered for appointment in the category of Ex-serviceman once they are in the last year of their service prior to their superannuation. The petitioners had joined the Air Force service on 16.11.1989, 01.02.1990 and 03.02.1989 respectively. They were due for their release on completion of 20 years of service w.e.f. Civil Writ Petition No.12693 of 2009 2 30.11.2009, 31.01.2010 and 28.02.2009, respectively. The petitioners No. 2 and 3 infact had retired w.e.f. 15.06.2009 and 28.02.2009 whereas petitioner No. 1 was due to retire w.e.f. 30.11.2009, when the writ petition was filed. The advertisement for filling up 184 posts of HCS (Executive Branch) and Allied Services were issued in the year 2009. Last date for submitting the application for appearing in the preliminary examination was 04.02.2009. The petitioners applied for being appointed to the post and were issued roll numbers. All the petitioners were declared successful in the preliminary examination in May 2009. Accordingly, they applied for appearing in the main examination. At that time, they received communication dated 04.08.2009 that on checking it was noticed that the petitioners were serving in the regular Air Force service whereas posts advertised were meant for Ex-serviceman. Their applications for being considered in the category of Ex-serviceman was rejected, though the petitioners had been issued No Objection Certificate by the employer Union of India and so also by respective Zila Sainik Boards indicating that the petitioners were considered eligible being Ex- serviceman for appointment in the civil posts in Central/State Government organisations. Copies of these letters have been annexed with the petition as Annexures P-6 and P-7. The petitioners made a representation and also made a personal visit to the office of respondent-office. Copies of the letters Annexures P-6 and P-7 were also served upon the respondents. The petitioners made efforts to impress upon the respondents that they were entitled to the concession available to the Ex-serviceman Civil Writ Petition No.12693 of 2009 3 though they were yet in service. Reference is also made to the application form filled by the petitioners for main examination with special reference to Item No. 4(b), which clearly provided about the age of concession and to the sub Clause (iii) thereof which reads as under:- “As Ex-ECO/Ex-SSCO/Ex-servicemen/Military personnel likely to be released on phased program basis (date of enter into service and release also be indicated).” Mention was also made to the application form to the effect that candidate claiming benefit of ESM or DESM category was available to those, who were likely to be released on a phased programme basis. In this regard, reference is made to item No. 13 of the application form, which is as under:- “13. only for candidates claiming the benefit under ESM/DESM category; a(i) Are you a serviceman likely to be released on phased programme basis? Yes/No. (ii)If yes, date of joining? (iii)Date of release?” On this basis, the petitioners have filed the present writ petition before this Court to challenge the order rejecting their prayer for being considered in the category of Ex-serviceman. In response to notice issued, reply has been filed on behalf of the Commission. It is stated that there is no infringement of any rights available to the petitioners for which they could have invoked jurisdiction of this Court. The main stand projected in the reply is that the petitioners were in service on the cut off date and, Civil Writ Petition No.12693 of 2009 4 thus, could not be treated as Ex-serviceman and, accordingly, their application forms as submitted were rightly rejected. Counsel for the petitioners has been referred to Rohtash Mann Versus State of Haryana and others 2010 (2) S.C.T. 555, where the Single Judge of this Court has considered the issue as arises in the present writ petition and has held that candidate who was in service and was to retire within a period of 12 months and had applied against the post reserved for the Ex-serviceman category, could be so appointed and his appointment was held to be valid. The facts noticed in brief in the case of Rohtash Mann (supra) would clearly expose the hallowness of the stand taken by the respondent- Commission. It would appear that a different stand is being taken just for sake of convenience by the counsel for the State. Earlier the Haryana Government had successfully defended the appointment in the case of Rohtash Mann's (supra). Not only the Government had defended appointment of the petitioners in Rohtash Mann's case but this Court has also upholding the same. So, will it be fair for the Commission or for the Government to take a stand, which is not in consonance with the stand taken and projected before this Court in earlier case? To add to the situation, the submission of the counsel for the petitioners that petitioner No. 2 here in this case was considered and appointed in the category of Ex-serviceman as Sub-Inspector in Haryana police and the appointment has been made by Staff Selection Commission. The rule position having been so clear and accepted by the Government cannot now brook any change. The submission by counsel appearing for the Commission that the Civil Writ Petition No.12693 of 2009 5 explanation, which was earlier there in 1979 rules has been omitted in the rules formulated in the year 1987, would also not help the cause of the respondent as this very precise argument was raised before this Court in the case of Rohtash Mann (supra) and was rejected. This Court in this case has referred to the explanation and also to the subsequent notification, where this explanation has not found mention, as can be seen from the following reproduction:- “Explanation: The persons serving in the Armed Forces of the Union, who on retirement from service would come under the category of ‘ex-Servicemen’ may be permitted to apply 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.” In a subsequent notification which is made through a office memorandum dated 14.04.1987, the modification that has been made is only with reference to Section 2(c ) in the following fashion:- “An 'Ex-Servicemen' means a person, who has served in any rank whatever as a combatant or as a non combatant in the Regular Army, Navy and Air Force of the Indian Union and (i) who retired from such service after earning his/her pension; or Civil Writ Petition No.12693 of 2009 6 (ii) who has 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) who has been released, otherwise than on his own request, from such service as a result of reduction in establishment; or (iv) who has been released from such service after completing the specific period of engagements, 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 and includes the personnel of the Territorial Army of the following categories, namely:- (i) pension holders for continuous (embodied) service; (ii) persons with disability attributable to military service; and (iii) gallantry award winners.” In this regard, this Court finally held as under:- Civil Writ Petition No.12693 of 2009 7 “3. The explanation which is already made in the original rules as notified on 27.10.1986, does not appear to have been either withdrawn or changed. Through this explanation, an expanded meaning is given to accommodate the claim of persons serving in the armed forces of the Union, but on retirement from service would come within the definition of ex-servicemen as persons qualifying to be permitted to apply for reemployment one year before the completion of the specified service. The 1987 modification of the definition did not seek to withdraw the extended meaning to an ex-servicemen brought through explanation is seen also by a clarification given in the subsequent notification itself which is available through a subsequent para in the very same office memorandum, where the net effect of the amendment is referred to :- “The net effect is that the following two categories of personnel, who were included in the pre-revised definition of ‘ex-servicemen’ will now cease to be treated as ex-Servicemen w.e.f. 01.07.1997 as will be seen from the following proviso, namely, “Any person who has been released:- (a) at his own request after completing five years service in the Armed Forces of the Union; or (a) after serving for a continuous period of six months after attestation, otherwise than at his own request or by way of dismissal or discharge on account of Civil Writ Petition No.12693 of 2009 8 misconduct or inefficiency or has been transferred to the reserve pending such release; shall also be deemed to be an ex-Servicemen for the purpose of this clause.” 4. It can be noticed that the consequence of amendment has been referred to as pertaining only to exclude certain classes of persons, who were included in the pre-revised definition and who would cease to be ex-servicemen in the subsequent definition. The facility of a deeming provision of even persons in service as qualified for making application if a retirement were to ensue within a period of 12 months does not appear to have undergone a change. When the revised definition was accepted and adopted by the Government of Haryana through its communication dated 08.11.1988, it did not choose to give its own definition of ex-servicemen. It merely adopted the definition as contained by the Central notification dated 14.04.1987. I have already observed that the subsequent modification could be understood only in the context of the definition as originally released on 27.10.1986.” The prayer made by the counsel for reconsidering the view on the ground that cut off has to be taken from as given in the advertisement, which can be so inferred from the observation made in Ashok Kumar versus Union of India 2007 (2) RSJ 288, would also not strictly apply to the facts of this case. The condition of cut off date has already been satisfied. The petitioners had submitted their Civil Writ Petition No.12693 of 2009 9 application before the cut off date. The question here is whether the petitioners could be treated in the category of Ex-serviceman or not. As per the clear finding returned in Rohtash Mann's case (supra) with which I respectfully agree there being no reason to differ, the petitioners are held to be Ex-servicemen. The prayer made in the writ petition is allowed. It is conceded by the counsel for the petitioners thay only petitioner No. 2 could make the grade. The petition qua petitioner No. 1 and 3, therefore, would be rendered infructuous and is dismissed. The writ petition qua petitioner No. 2 is allowed. October 07, 2010 ( RANJIT SINGH ) rts JUDGE