$~R-21 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: January 03, 2013 + W.P.(C) 3283/2001 COMMISSIONER OF POLICE ..... Petitioner Represented by: Mr.V.K.Tandon with Mr.Yogesh Saini, Advocates versus HARISH KUMAR YADAV & ANR. Represented by: None. ..... Respondents CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL PRADEEP NANDRAJOG, J.
(Oral) 1. Respondent No.1 Harish Kumar Yadav had sought a voluntary discharge from the Indian Army and had to approach the Central Administrative Tribunal when his appointment as a Constable (Executive) (treating him to be an ex-serviceman) was sought to be cancelled by the writ petitioner as per its order dated September 24, 1999 on the ground that having sought voluntary discharge from the Indian Army, Harish Kumar Yadav was not entitled to be considered as an Ex-serviceman.
2. Now, the Tribunal has noted that the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 do not define as to who would be an Ex-serviceman. W.P.(C) 3283/2001 The Tribunal noted that the subject was page 1 of 5 attempted to be legislative upon by a guideline dated April 14, 1987 being O.M. No. 36034/5/85 as per which Ex-serviceman was defined as under:- (i) (ii) (iii) (iv) 3. An ex-serviceman means a person who has served in any rank whether as a combatant or non-combatant in the Regular Army, Navy and Air Force of the Indian Union and who retired from such service after earning his/her pension; or 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 who has been released, otherwise than on his own request, from such service as a result of reduction in establishment; or 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 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. The Tribunal has noted that since the Rules did not define who would be an Ex-serviceman it would not be permissible to fill in anything in the Rules by way of an office memorandum. The result is that before the Tribunal the respondent succeeded and order dated September 24, 1999 cancelling his appointment was struck down.
4. Up in arms against the impugned order passed by the Tribunal is the Commissioner of Police. We note that notwithstanding the writ petition being admitted, no stay was granted to the petitioner and the result is that Harish Kumar Yadav has continued to serve the department and probably W.P.(C) 3283/2001 page 2 of 5 may have superannuated by now. Be that as it may whether he has superannuated or not is not our concern.
5. In the decision reported as JT 200.(3) SC 47.Sansar Chand Atri v. State of Punjab and Anr. the Supreme Court was considering an amendment to the Punjab Recruitment of Ex-servicemen Rules.
6. Rule 2(C)(ii) was substituted and the definition of Ex-servicemen was as under: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-servicemen may be permitted to apply for reemployment and avail themselves of all concessions available to ex-servicemen but shall not be permitted to leave the uniform W.P.(C) 3283/2001 page 3 of 5 until they complete the specific terms of engagement in the armed forces of the union.
7. In paragraph 9 of its opinion, the Supreme Court observed as under: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. W.P.(C) 3283/2001 page 4 o”
8. We have only to highlight that sub-para (iii) of the amended rule considered by the Supreme Court is para materia with paragraph (iii) of the guideline which we are considering and thus, on a parity by reasoning, it needs to be held that O.M. dated April 14, 1987 is struck down insofar as para (iii) excludes from the definition of Ex-servicemen those who join the Army, Navy or the Air Force but were released at their own request.
9. In other words, for reasons other than the ones given by the Tribunal, the writ petition fails and is accordingly dismissed but without any order as to costs. (PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE JANUARY 03 2013 srb W.P.(C) 3283/2001 page 5 of 5