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2013 DIGILAW 271 (HP)

VIRESH KUMAR v. STATE OF H. P.

2013-04-08

DEV DARSHAN SUD, KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J. - 1. THE petitioner has prayed for quashing of clause (iii) of the definition of ex-serviceman as provided in Annexure C to Annexure 18.10 in Hand Book on Reservation Matters Vol. I (Second Edition) Govt. of Himachal Pradesh, Department of Personnel (for short, Hand Book on Reservation Matters). The direction has also been sought to the respondents to grant all the benefits to the petitioner admissible under the rules with further prayer to direct the respondents to treat the petitioner as an ex-serviceman and register his name accordingly Whether the reporters of the local papers may be allowed to see the Judgment? Yes under the category of ex-serviceman for re-employment/ sponsoring against the reserved vacancy and sponsor the name of petitioner for his entitled category on his turn. 2. THE pleaded case of the petitioner is that he joined Army on 28.8.1993. The petitioner initially enrolled for 15 years of colour service and two years of reserved service. The applicant has plus two qualification. At the time of his release from the Army, the character of petitioner was assessed very good. The State has framed rules under which the released ex-serviceman is extended benefits of approved military service on his rejoining Civil Service in accordance with the provisions of the rules. There is 15% reservation in class-III and Class IV posts for ex- servicemen for employment under the State. The petitioner on account of adverse domestic circumstances had to apply for pre- mature release from Army. The competent authority released the petitioner from Army service on 13.6.1997, till then the petitioner had served the Army for three years and ten months. 3. THE petitioner after release from Army approached his nearest Employment Exchange, Nalagarh on 3.8.1998 for registration for the purpose of employment under the category of ex-serviceman. The petitioner genuinely believed that his name had been registered as an ex-serviceman. The respondent No. 3 had also sent the information of the petitioner to respondent No. 2. In October 2001 the petitioner approached the office of respondent No.2 to inquire about his position for employment as an ex-serviceman, the petitioner was informed that his name was not registered as an ex-serviceman. The petitioner was told that he does not fall in the category of ex- serviceman. 4. In October 2001 the petitioner approached the office of respondent No.2 to inquire about his position for employment as an ex-serviceman, the petitioner was informed that his name was not registered as an ex-serviceman. The petitioner was told that he does not fall in the category of ex- serviceman. 4. THE definition of ex-serviceman in Annexure C to Annexure 18.10 in Hand Book on Reservation Matters is arbitrary and violative of Articles 14, 16 of Constitution of India. The definition has created unreasonable classification among ex-servicemen. It has no nexus with the object to be achieved. The distinction between ex- servicemen is not based upon intelligible differentia. The impugned definition has created fictional and irrational bar to a section of ex- servicemen from getting benefit of reservation provided to ex- servicemen under the rules. The respondents No. 1 and 2 have filed joint reply and have taken preliminary objection that definition of ex-serviceman as notified by the Government of Himachal Pradesh is being implemented. The Central Government has revised the definition of ex-serviceman w.e.f. 1.7.1987, but the definition of ex-serviceman notified earlier by the State Government is only being implemented in the State of Himachal Pradesh. The petitioner, who has served three years ten months in the Armed Forces does not fall in the category of ex-serviceman under the existing definition of ex-serviceman. The other States have implemented the revised definition issued by the Government of India on 1.7.1987. 5. ON merits, the respondents No. 1 and 2 have denied the claim of the petitioner. It has been stated that petitioner was discharged from service at his own request. He is not an ex- serviceman as per the norms of H.P. Government. The Tribunal in OA No. 2987/99 titled Sham Lal vs. State of H.P. has already considered the definition of ex-serviceman. The violation of Articles 14, 16 of the Constitution of India has been denied. 6. THE respondent No. 3 has filed separate reply and has taken almost similar stand as taken by respondents No. 1 and 2. The Tribunal in OA No. 2987/99 titled Sham Lal vs. State of H.P. has already considered the definition of ex-serviceman. The violation of Articles 14, 16 of the Constitution of India has been denied. 6. THE respondent No. 3 has filed separate reply and has taken almost similar stand as taken by respondents No. 1 and 2. In addition, it has been stated that petitioner at the first instance got his name registered on the basis of B.Com-III qualification and after 24.7.2000 the petitioner applied in writing to respondent No. 3 that his name registered on the basis of B.Com-III be deleted and his name may be registered in the trade of driving having Matric and plus two qualification. It has been denied that petitioner was not aware of his registration in general category instead of ex-serviceman. Heard. The learned counsel for the petitioner has submitted that clause-iii in the definition of ex-serviceman in Annexure C to Annexure 18.10 of Hand Book on Reservation Matters is wrong, illegal, arbitrary and in violation of Articles 14 and 16 of Constitution of India. The definition has no nexus with the object to be achieved. Invariably an army personnel before completion of his tenure of service comes out of the Armed Forces on compassionate grounds. It is different that Armed Forces use different nomenclatures, such as, 'discharge', 'retire', 'release' army personnel. The purpose of different rules providing reservation to ex- serviceman in respondent No.1- State is to treat the army personnel separately. Once an Armed Forces personnel is released from Armed Forces, he is an ex-serviceman irrespective of length of service in the Armed Forces and the ground on which he has been released from the Armed Forces. In any case, release on one's own request is with the permission of competent authority of the Armed Forces, hence condition of five years service in the Armed Forces before release for treating an Armed Force personnel as ex-serviceman is arbitrary. The learned Additional Advocate General has supported the definition of ex-serviceman as provided in the Hand Book on Reservation Matters. 7. The learned Additional Advocate General has supported the definition of ex-serviceman as provided in the Hand Book on Reservation Matters. 7. THE Annexure 'C' to Annexure 18.10 of Hand Book on Reservation Matters is as follows:- "An ex-serviceman is a person who has served in any rank (whether as a combatant or as a non-combatant) in the Armed Forces of the Union, including the Armed Forces of the former Indian States (but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Force, Lok Sahayak Sena and Territorial Army) for a continuous period of not less than six months after attestation, and i) has been released, 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; or ii) has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve; or iii) has been released at his own request after completing five years' service in the Armed Forces of the Union". 8. THE petitioner has served the Army for three years and ten months. The grievance of the petitioner is with respect to clause- iii of the aforesaid definition of ex-serviceman. The learned counsel for the petitioner has relied Raj Pal Sharma and others vs. State of Haryana and others 1985 (Supp) SCC 72 wherein Rule 4 of Punjab Government National Emergency (Concession) Rules, 1965 was considered by the Supreme Court. The proviso to rule-4 of said rules provided that a person who has been released from military service on compassionate grounds shall not be entitled to any concession under this rule. In that context, it has been held as under:- "........ In the instant cases the petitioners are all ex-military personnel. They have also been released from military service. All those persons released from military service constitute one class and it is not possible to single out certain persons of the same class for differential treatment. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived of the equal opportunity. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived of the equal opportunity. The amendment, therefore, is violative of Articles 14 and 16 of the Constitution and, therefore, bad." The learned counsel for the petitioner has also relied Sansar Chand Atri vs. State of Punjab and another (2002) 4 SCC 154 wherein Punjab Recruitment of Ex-servicemen Rules, 1982 as amended by the notification dated 22.9.1992 was considered by the Supreme Court with reference to rule 2(c ), which was as under:- "2. (c) '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 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-serviceman', 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 terms of engagement in the Armed Forces of the Union". In that context the Supreme Court has held as follows:- "........ In that context the Supreme Court has held as follows:- "........ 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 or on any ground should be treated as an ex-serviceman who has retired from the army......" 9. THE limited question before this court is the validity of clause iii of Annexure C to Annexure 18.10 of Hand Book on Reservation Matters. In Raj Pal Sharma and others as well as in Sansar Chand Atri (supra), the rules for interpretation were different. In Sansar Chand Atri after considering rule 2(c) of Punjab Recruitment of Ex-servicemen Rules, 1982, the Supreme Court has held that a person in the Army who has earned pension after putting in the requisite period of service before relieving the Army whether at his own request or on being released by the employer or on any other ground should be treated as ex-serviceman, who has retired from the Army. 10. THE petitioner even otherwise has not projected the case that before his release from the army, he had earned pension after putting in the requisite period of service. The grievance of the petitioner is not against clause-i of Annexure-C to Annexure 18.10 of Hand Book on Reservation Matters. The petitioner even in absence of clause-iii will have to cross the hurdle of clause-i of the definition of ex-servicemen. It is admitted case of the petitioner that he was released from the army at his request. The petitioner even in the teeth of clause-i of the definition of ex-servicemen, is not an ex-serviceman. In the certificate of discharge of petitioner placed on record issued by Officer Commanding Depot Coy. Dogra Regiment Centre, the petitioner has been shown as 'non ex-serviceman'. This shows that even army has not considered the petitioner as ex- serviceman. In O.A. No. 2987/99 decided on 1.6.2001, the petitioner therein had completed more than five years eleven months service and he was discharged on medical grounds by the military authority. Dogra Regiment Centre, the petitioner has been shown as 'non ex-serviceman'. This shows that even army has not considered the petitioner as ex- serviceman. In O.A. No. 2987/99 decided on 1.6.2001, the petitioner therein had completed more than five years eleven months service and he was discharged on medical grounds by the military authority. The Tribunal held that as per clause-iii of Hand Book on Personnel Matters, Vol. 1, a person who is released on his own request after completing five years service in the armed forces of the Union is an ex-serviceman. The case of the petitioner is entirely different. He has served the army only for three years and ten months. 11. ON either side, it is common case that respondent No. 1- State gives some benefits to ex-servicemen when they are appointed in respondent No. 1- State in civil employment. It appears the purpose of defining ex-serviceman in Annexure C of Appendix 18.10 is to give benefit to genuine ex-servicemen. In clause-iii of the definition purposely 'touch and go situation' by a person in the Armed Forces has been avoided. In the definition in Annexure-C to begin with continuous service of not less than six months after attestation is required and thereafter under clause- iii release at his own request after completing five years service in the Armed Forces is required to come within the definition of ex-servicemen. The clause-i permits release otherwise than at his own request e.g. such as medical ground. A person is required to serve Armed Forces for certain period before claiming benefit of ex-serviceman under the definition. The period of five years stated in clause iii for taking benefit of ex- serviceman even in a case where release is on request cannot be termed too long period or arbitrary. In these circumstances, no fault can be found with clause-iii of the definition of ex-servicemen in Annexure-C. 12. The period of five years stated in clause iii for taking benefit of ex- serviceman even in a case where release is on request cannot be termed too long period or arbitrary. In these circumstances, no fault can be found with clause-iii of the definition of ex-servicemen in Annexure-C. 12. THE respondent No. 2 has taken the stand that definition of ex-servicemen has been revised by the Central Government and with effect from 1.7.1987 the definition of ex-servicemen as per Central Government is as follows:- "A person who has served in any rank (a) who has been retired from such service after earning his pension; or (b) 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; (c) who has been released, otherwise than at his own request, from such a service as a result of reduction in establishment; or (d) 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 personnel of the Territorial Army of the categories, mentioned under General Para 4." "Authority:- Government of India, Ministry of Personnel New Delhi Notification No. 35034/5/85-Ests(ST) dated 27 October 1986." In letter dated 17.4.1999 of respondent No. 2 addressed to Commissioner-cum-Secretary (GAD), Govt. of Himachal Pradesh, Department of Personnel, it has been stated that H.P. Government vide letter No. 2-11/72-D.P. (A-III) dated 20 July, 1992 has accepted the definition of ex-serviceman as laid down by the government of India. This puts a further question mark regarding the grievance of the petitioner against clause-iii of the definition of ex-servicemen in Annexure C, noticed above. There is nothing on record that after release from army, the petitioner represented for registration in the concerned employment exchange for civil employment as an ex-serviceman. On the contrary respondent No. 3 has taken the stand that petitioner got himself registered on the basis of B.Com-III and on 24.7.2000 applied that instead of his registration on the basis of B.Com-III, he be registered in the trade of driving having Matric and ten plus two qualification. On the contrary respondent No. 3 has taken the stand that petitioner got himself registered on the basis of B.Com-III and on 24.7.2000 applied that instead of his registration on the basis of B.Com-III, he be registered in the trade of driving having Matric and ten plus two qualification. It shows that petitioner was aware that he was not an ex-serviceman, therefore, he got himself registered in the employment exchange initially on the basis of B.Com-III qualification and later on got converted his registration for driving having Matric and ten plus two qualification. 13. IN view of above, thus seen from any angle, no case has been made out by the petitioner for quashing clause-iii of definition of ex-serviceman as provided in Annexure-C to Annexure 18.10 of Hand Book on Reservation Matters, Vol. 1 (Second Edition), Government of Himachal Pradesh, Department of Personnel. Resultantly, the petition fails and is accordingly dismissed.