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2006 DIGILAW 45 (KER)

T. Gopalakrishnan Bhat v. The Chairman

2006-01-24

K.A.ABDUL GAFOOR, K.THANKAPPAN

body2006
Judgment :- Abdul Gafoor, J. The petitioner, while serving as an Airman in the Indian Air Force and having 18½ years of service, responded to a notification issued by the Public Service Commission for recruitment to the post of Lower Division Clerk in Kasaragod District. He underwent the written test and became successful and his name was included in the rank list as Rank No.28. His testimonials were called for, for verification. At that time, it was noticed that on the last date fixed for submitting the application, he had 1 1/2 year's service left to be served in the Indian Air Force. According to the norms prescribed by the Public Service Commission, those who had only one year more service in the armed service alone could apply. Hence he was issued with a notice, Ext.P5, to show cause why his name shall not be deleted from the rank list. He submitted his explanation stating that a minimum period of 15 years alone was required for earning pension in any of the armed forces, but in the Indian Air Force, 20 years is the required minimum period fixed for one to get discharge from service. He had, by the time the selection process had taken place, already completed his term of 20 years and therefore, he could have very well applied pursuant to the notification issued by the Public Service Commission and therefore, there is no reason to delete his name. But this explanation was not found to be satisfactory by the Public Service Commission. This resulted in Ext.P7 communication stating that his name has been ordered to be deleted from the rank list, as his explanation was not satisfactory. 2. The learned single Judge did not accept the contention of the petitioner/appellant that the "specified term of engagement" mentioned in the explanation under Rule 2 of Ext.P8 and "the prescribed period of armed service" mentioned in Ext.P9 was only 15 years' service, which was sufficient to earn pension, even in Indian Air Force. Therefore, the writ petition was dismissed. This contention is re-agitated before us placing much reliance on the decision reported in Sansar Chand Atri v. State of Punjab Anr. {JT 2002 (3) SC 470}, contending that, as the petitioner had completed, at the time of filing the application, considerable service to earn pension, he should have been treated as an Ex-service man. 3. This contention is re-agitated before us placing much reliance on the decision reported in Sansar Chand Atri v. State of Punjab Anr. {JT 2002 (3) SC 470}, contending that, as the petitioner had completed, at the time of filing the application, considerable service to earn pension, he should have been treated as an Ex-service man. 3. We are unable to accept this contention. "Ex-servicemen", going by the main provision of definition in Rule 2 of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules 1979, is "a person who had been released from service". But by reason of the explanation, thereunder, "a person serving" is also considered as "Ex-service man" for limited purpose. The Explanation reads as under: "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 term 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 specific term of engagement in the Armed Forces of the Union." (Emphasis supplied) Thus, a person in service is permitted to apply for re-employment, only one year before the completion of the 'specified term of engagement'. This is a statutory rule. That has been later clarified in Ext.P9 office memorandum, wherein it is stated that: "A candidate working in Armed Forces would become eligible for applying civil posts only when he completes the prescribed period of Army Services within a year from the last date for receiving application ......" Much reliance is placed on the words "prescribed period of army service". It is submitted that service in all the wings of the Army are identical. A person serving in army can apply even on completion of 14 years. Equally so is the case in Navy. But it is not so in the Air Force. Unlike in the Army, the period of specified service in the Air Force is 20 years. The statutory rules contained in Ext.P8, giving exemption to the normal definition of `Ex-Serviceman' is with reference to "the completion of specified term of engagement". It is admitted by the appellant/petitioner that the "specified term of engagement" is 20 years. Unlike in the Army, the period of specified service in the Air Force is 20 years. The statutory rules contained in Ext.P8, giving exemption to the normal definition of `Ex-Serviceman' is with reference to "the completion of specified term of engagement". It is admitted by the appellant/petitioner that the "specified term of engagement" is 20 years. So, one working in Air Force can apply for re-employment, when he is left with only one year to complete that specified term. It is also admitted by the appellant/petitioner that he submitted application on completion of 18 years and 8 months of service, when a period of one year and four months' of the `specified term' had been left. 4. Necessarily, going by the norms of the Public Service Commission, and the definition of the term ex-serviceman, as contained in Ext.P8, he could not have submitted his application availing of the benefits of "Ex-serviceman". Had he not been considered to be a service personnel, he would have been over-aged. Therefore, deletion of his name as per the impugned order, which has been sustained by the learned single Judge, cannot be interfered. 5. The decision relied on by the appellant does not have application to the facts-situation of the case on hand, because, that decision was with reference to an application for re-employment made by "a person who had been discharged at his option" where he will come within the definition of ex-serviceman going by the main provision of Ext.P8 itself. Writ appeal, therefore, fails and is dismissed.