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2010 DIGILAW 524 (PNJ)

Rohtash Mann v. State Of Haryana

2010-01-21

K.KANNAN

body2010
Judgment K.Kannan, J. 1. The petition seeks to quash the order of appointment issued by the 1st respondent to the 2nd respondent in pursuance of a selection process for the post of Management Trainee (Finance) with the 1st respondent-Corporation. The advertisement which had been issued provided for appointment to 5 posts of which one post had been reserved to an ex-serviceman. The petitioner and the 2nd respondent were short-listed candidates for appointment in the category of ex-serviceman and Civil writ Petition No.19014 of 2008 -2-ultimately after an interview, an offer of appointment had been made to the 2nd respondent by the Corporation on 20.05.2008. The offer directed that the 2nd respondent should report for duty before 20.06.2008, failing which the offer would stand cancelled. It appears that the 2nd respondent did not report for duty within the date stipulated in the offer of appointment, however, he had sought for extension and obtained the same. It is this order of appointment on an extended period of the offer that is challenged principally on two grounds:- (i) The 2nd respondent was on the date of advertisement, on the date of interview as well as on the date when the offer of appointment was made, was still in service in Air Force and he had not been discharged from there. He did not, therefore, qualify to the definition as an ex-serviceman and all the testimonials, which were necessary to be supplied as per the requirements in the advertisement, had not been given. The appointment made to the 2nd respondent was, therefore, invalid. ii) The offer of appointment had not been accepted and the 2nd respondent had not reported for duty within the time stipulated and therefore, the extension of time given by the 1st respondent during which time the respondent had taken retirement from service and joined, was not valid acceptance. The extension of period for reporting for duty itself was done for extraneous reasons and therefore, it is not valid. 2. In support of the contention that the 2nd respondent did not qualify as an ex-serviceman, the learned counsel appearing for the petitioner refers to the notification issued by the Central Government through an office memorandum dated 14.04.1987 and the adoption of the definition as found in the memorandum dated 14.04.1987 by the government of Haryana. 2. In support of the contention that the 2nd respondent did not qualify as an ex-serviceman, the learned counsel appearing for the petitioner refers to the notification issued by the Central Government through an office memorandum dated 14.04.1987 and the adoption of the definition as found in the memorandum dated 14.04.1987 by the government of Haryana. The office memorandum dated 14.04.1987 is purported to have been issued on the basis of some representations given with reference to an earlier notification issued by the Union on 27.10.1986 and came to be issued in response to some pleas for a modification of the definition of the ex-serviceman. The notification both of the years, 1986 and 1987 would require to be seen for a comprehensive understanding of whether a subsequent notification and the adoption of such notification by the Government has the effect of excluding persons, who actually were in service, but who were later relieved. The definition of the ex-servicemen comes through Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979. Rule 2 (c) defines an ex-serviceman. The definition of the ex-servicemen comes through Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979. Rule 2 (c) defines an ex-serviceman. It is the explanation provided to this Section that would require our immediate attention for it is through this explanation that the 2nd respondent claims that he is entitled to consideration:- "2 (c) 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 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; and (i) who has retired from such service after earning his/her pension; or (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 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; 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. 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 Sec.2 (c ) in the following fashion:- Civil Writ petition No.19014 of 2008 -5- "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 (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. " 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 re-employment one year before the completion of the specified service. 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 re-employment one year before the completion of the specified service. The Civil writ Petition No.19014 of 2008 -6-1987 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 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 Civil Writ petition No.19014 of 2008 -7-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. 5. It merely adopted the definition as Civil Writ petition No.19014 of 2008 -7-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. 5. The learned counsel appearing for the petitioner states that a similar situation had arisen when a query had been taken by a person by name Ramesh Kumar whether a person who continued to be in service would also be qualified to apply as an ex-serviceman through an information sought under the Right to Information Act. The superintendent of General Services-II has responded that no instruction had been issued by the department under which a serving person could apply for any civil post. In my view, an understanding of a relevant rule shall be a judicial exercise and an understanding made by the superintendent cannot be used to bind the Court or fetter its duty to interpret when a case comes before it. In my view, the response of the superintendent General Services must be understood as an understanding of the rules in a given situation and if in this case, the point arises whether a person actually in service could also apply and secure an appointment in a ex-servicemen post, it shall be perfectly legitimate for this Court to exercise its judicial mind for an interpretation that may even fall out of sync with an understanding as obtained by the functionary of the State. 6. If the 2nd respondent was competent to apply for the post so long as the employer had no objection and he had also issued a no objection Certificate, the testimonial supplied at the time of application that he had been working in the Air Force and that the Air Force Civil Writ petition No.19014 of 2008 -8-authorities had no objection would be good enough for the 1st respondent to consider the candidature of the 2nd respondent. 7. The second objection is that the offer of appointment had been issued with the condition to report for duty within a particular date and it was not done ought to have been cancelled. If it had been cancelled, the petitioner as the second in the order of merit would have been considered for appointment. 7. The second objection is that the offer of appointment had been issued with the condition to report for duty within a particular date and it was not done ought to have been cancelled. If it had been cancelled, the petitioner as the second in the order of merit would have been considered for appointment. There is a statutory provision relating to how a contract is to be made and when and how an acceptance shall be made to an offer if the offer demanded an acceptance in a particular fashion, the acceptance must only be absolute. The offer of appointment itself states that if no unconditional acceptance was made, it is liable for cancellation. Sec.7 of the Contract Act reads as under :- "7. Acceptance must be absolute in order to convert a proposal into a promise the acceptance must - (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted; and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance. " 8. In this case, there has been a response from the 2nd respondent informing that he may not be relieved before the date stipulated and he was asking 20 days further time. It would have been Civil Writ petition No.19014 of 2008 -9-perfectly legitimate for the 1st respondent at that time to revoke the offer of appointment and given appointment to yet another person. It could also be possible that on a conditional acceptance, the proposer viz the employer could have insisted that the acceptance ought to be made before the stipulated period. On the other hand, if it did neither but accepted the request for extension then the contract becomes complete. When the 1st respondent decided to accept the extension and granted the appointment, the order of appointment becomes valid. It could still be a subject of challenge only if such acceptance itself was made for extraneous consideration. On the other hand, if it did neither but accepted the request for extension then the contract becomes complete. When the 1st respondent decided to accept the extension and granted the appointment, the order of appointment becomes valid. It could still be a subject of challenge only if such acceptance itself was made for extraneous consideration. In this case, if the condition in the acceptance was on a particular reason that he would not be able to obtain a relieving order from his employer and when he was seeking for an extension only on that basis so as to resign and take up the job, and if that reason was found to be true and acceptable for the 1st respondent, it cannot be said to be extraneous. If there was a reason, that reason was found justly acceptable. 9. An individual contention was that the application by the 2nd respondent in response to the advertisement itself was incomplete and he had not forwarded the application through the proper channel. The application through a proper channel arises in cases where an appointment is sought of a person who is employed in some place. In this case, there is a deeming provision which enables a person also in service to be treated as an ex-serviceman and in my view, the application through a proper channel, does not apply at all. The deemed fiction of an ex-serviceman to an existing candidate must be taken to its logical end. Civil writ Petition No.19014 of 2008 - 10 -In any event, there had been a no Objection Certificate even from the air Force authorities and that itself was sufficient for validating consent of the previous employer for consideration for appointment. 10. The grounds of challenge urged by the petitioner ought to fail and the writ petition is dismissed as such.