Sansar Chand Atri Vs. State of Punjab and anr. - Court Judgment

1. Leave is granted in all the special leave petitions.

2. The question that falls for determination in theseappeals is whether the appellants are 'ex-servicemen' forthe purpose of appointment under the Punjab Recruitmentof Ex-servicemen Rules (for short 'the Rules') . Theseappeals are directed against the common judgment of theHigh Court of Punjab and Haryana dismissing the writpetitions filed by the appellants. Since all the writ petitionswere disposed of by the judgment rendered in CWPNo.19084/98 filed by Sansar Chand Atri who is theappellant in the Civil Appeal arising out of S.L.P. No.3683of 2000, the facts in that case are stated for sake ofconvenience:

In response to the advertisement dated 16.10.1998issued by the Punjab Public Service Commission invitingapplications for certain posts of the Punjab Civil Service(Judicial) Branch, which appeared in the newspaper'Tribune' on 16.10.98, the appellant submitted anapplication for appointment against one of the postsreserved for ex-servicemen. The competitive examination forrecruitment to the post was to commence from 21.12.1998.The appellant was informed by the Commission that hecould not be considered as an ex-serviceman as he had beendischarged from the Indian Army at his own request.Feeling aggrieved by the action of the Commission indeclining consideration of his candidature as ex-servicemanthe appellant filed the aforementioned writ petition.

3. The appellant joined the Indian Army on 8.10.1972while he was holding the post of Hawaldar. He wasdischarged from the Army on 1.11.1990 after rendering 18years and 24 days' of total service. The 'cause of discharge'described in the discharge certificate was 'under Army Rule13(3) II (iv) at his own request'. He is drawing pension asan ex-serviceman.

4. The question whether the appellant is an ex-servicemen or not is to be determined on the basis of theprovisions of the Punjab Recruitment of Ex-servicemenRules 1982 as amended by the Notification dated 22.9.1992.The said Rules were framed by the Government of Punjab inexercise of the power conferred by the proviso to Article 309read with Articles 234 and 318 of the Constitution. In Rule2(e) thereof, 'ex-servicemen' is defined as follows:

'Rule 2(e) 'Ex-Servicemen' means a personwho joined any rank, whether as acombatant or as a non-combatant on or afterthe first day of November, 1962, in theArmed Forces of the Union, excluding theAssam Rifles, Lock Sahetak Sena, Jammuand Kashmir Militia, Territorial Army,Defence Security Corps and the GeneralReserve Engineering Force, and has beenreleased otherwise than on ground ofmisconduct or inefficiency.'

5. Rule 3 which makes provision regarding extent ofapplication provides that the rule shall apply to all the StateCivil Services and posts connected with the affairs of Stateof Punjab excepting the Punjab Vidhan Sabha and theSecretariat Services and the Punjab Higher Judicial Service.In Rule 4 provision is made for reservation of 15% of thevacancies to be filled in by direct appointment in all theState Civil Services and posts connected with the affairs ofthe State of Punjab to be filled in by recruitment of ex-servicemen. In the proviso to the said Rule a limit of 50% isprescribed for the total number of reserved vacancies.

6. In Rules 5 to 7 certain relaxations are made regardingthe number of attempts which an ex-serviceman may makein the competitive examination, age limit for appointmentand educational qualification and experience. From theprovisions of the Rule it is clear that its purpose is to benefitthe ex-servicemen in getting appointment to Civil postsunder the State.

7. By the notification dated 22.9.1992 issued by theState Government certain provisions of the 1982 Rules wereamended. The definition of ex-servicemen in Rule 2(ii) wassubstituted by the provision quoted hereunder:

'Ex-servicemen' means a person who hasserved in any rank, whether as a combatantor a non-combatant in the Naval , Militaryand Air Force of the Union of India(hereinafter referred to as the Armed Forcesof the Union of India), and who has :-

(i) retired from such service after earninghis pension; or

(ii) been released from such service onmedical grounds attributable tomilitary service or circumstancesbeyond his control and awardedmedical or other disability pension; or

(iii) been released, otherwise than on hisown request from such service as aresult of reduction in establishment, or

(iv) been released from such service aftercompleting the specific period ofengagement otherwise than at his ownrequest or by way of dismissal ordischarge on account of misconduct orinefficiency and has been given agratuity.

8. but does not include a person who hasserved in the defence security corps,the General Reserve Engineering Forcethe lok Sahayak sena and the paramilitary forces, but includes personnelof the Lok Sahayak sena of thefollowing categories, namely ;

(i) pension holders forcontinuous embodied services;

(ii) persons with disabilityattributable to military serviceand

(iii) gallantry award winners.

Explanation : The persons serving in the armedForces of the Union, who on retirement fromservice would come under the category of 'ex-serviceman' may be permitted to apply for re-employment and avail themselves of allconcessions available to ex-servicemen but shallnot be permitted to leave the uniform until theycomplete the specific terms of engagement in theArmed Forces of the Union.'

(emphasis supplied)

9. The answer to the question formulated earlier dependson a fair interpretation of the Rules particularly the Rulelaying down the definition of the term 'ex-servicemen'. ThePublic Service Commission was not inclined to consider theappellant's candidature in the posts reserved for ex-servicemen because the appellant had been discharged fromservice at his own request and had not retired from theservice. The High Court accepted the interpretation madeby the Commission mainly on the ground that in theprovisions of the Army Rules a distinction is maintainedbetween 'discharge', 'retire' and 'release' of army personnelfrom the service. The High Court took the view that underthe 1982 services rules as amended in 1992 a person whohas been released from the service on his own request asprovided in Rule 2(c)(iii) is specifically excluded from thepurview of the term 'ex-servicemen'. Relying on the saidprovision the High Court took the view that the appellanthas neither retired from the service nor has been releasedfrom service as contemplated under the aforementionedprovision but has been 'discharged ' from service on his ownrequest. Because of the exclusory definition of the term 'ex-servicemen' the High Court was not persuaded to accept theclaim of the appellant that he should be considered as anex-serviceman.

10. It is relevant to note here that in the Certificate issuedby the Ministry of Defence the appellant has been describedas an ex-serviceman. The provision for reservation in theservice rules is meant for the benefit of ex-servicemen. Thepurpose is to provide them with suitable jobs in civilservices so that they may not face difficulty in adjustingthemselves in civil society after leaving the defence service.In the context of the scheme of the provision the provisionsin the rule should be interpreted in a purposive andreasonable manner so that the intent and purpose of theprovision is served. From the provisions in the rules itappears that a distinction has been made by persons whoare released from the army on ground of medicaldisqualification or on ground of inefficiency or misconduct.Such distinction is reasonable keeping in view the purposeof reservation of posts made under the rules. All the ex-defence service personnel are to be treated as a classseparate from other candidates for the purpose of offer ofjobs and no differentiation or discrimination can be madeamongst them unless such differences are real andsubstantial. Testing the provisions in this context we are ofthe view that a person in the army who has earnedpension after putting in the requisite period of service beforeleaving the army whether at his own request or on beingreleased by the employer on any ground should be treatedas an ex-serviceman who has retired from the army. Suchtreatment is to be meted out to all such persons irrespectiveof whether the nomenclature used is 'relieved' or'discharged' or 'retired'. If the contention raised on behalf ofthe Service Commission and the State Government thatsince the appellant has been discharged from the Army athis own request, he cannot be treated as an ex-serviceman,is accepted then it will create a class within a class withoutrational basis and, therefore, becomes arbitrary anddiscriminatory. It will also defeat the purpose for which theprovision for reservation has been made.

11. The High Court, in our view, is not justified in placingreliance on sub-clause (iv) of the definition clause andexcluding the writ petitioners from the eligible category onthat basis. Sub-clause (iv) has no application in the instantcase for the reason that it applies to such of those personswho are relieved from service after specific period ofengagement and become entitled to get gratuity. If a person,who served in the armed forces, is released after beinggranted the benefit of pension, the case is taken out ofpurview 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 tothe appellants. Then the question arises whether suchperson would fall under sub-clause (i)? True, according tothe terminology used in the Service Rules governing thearmed forces there is a distinction between retirement andrelease/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 ofthe considerations set out above, there is no rational basisfor excluding those discharged or released from service afterearning pension. It is only after considerable period ofsatisfactory service a member of armed forces becomesentitled to pension. The mere fact that after such longperiod of service he voluntarily quit the service with theconsent of the employer should not place him in a dis-advantageous position for claiming the benefit of reservationfor ex-serviceman. Therefore, the expression 'retirement'should be given wider meaning in order to effectuate theobjective behind the Rule.

12. On the discussions in the foregoing paragraphs theappeals are allowed. The judgment of the High Court dated20.9.1999 in CWP No.19084/98 is set aside. It is stated atthe bar that the appellants in these appeals have appearedin the competitive examination but their results have notbeen declared. The respondents will take steps to declaretheir results forthwith and consider their case forappointment in terms of the service rules and in accordancewith the law. There will be no order for costs.

..J.(D.P. MOHAPATRA)..J.(P.VENKATARAMA REDDI)