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2018 DIGILAW 55 (JK)

Taramani v. State of J&K

2018-02-02

TASHI RABSTAN

body2018
JUDGMENT : Tashi Rabstan, J. 1. Through the medium of present writ petition, the petitioner is seeking quashing of selection/appointment of respondent No. 4 as Motor Vehicle Inspector (Survey) and (Technical) under State Cadre/Division Cadre as advertised vide Advertisement Notice No. 10 of 2005, dated 29.12.2005. The petitioner is also seeking a direction to the respondents to consider his case for selection against the said post. 2. The facts, as projected in the writ petition, are that the petitioner is having B.Sc., M.A. and MBA qualification at his credit. It is averred that the petitioner came to be engaged in the Indian Air Force in the year 1986 and after serving the Air Force for 20 years, he came to be retired on 31.05.2006. It is averred that during his service period, he was sent for training in the trade of Mechanical Transport Fitter, which has been recognized as Diploma in Automobile Engineering, besides he had also been granted driving license for driving Heavy Vehicles during his service period. It is averred that vide Advertisement Notice No. 10 of 2005, dated 29.12.2005 issued by J & K Service Selection Board-respondent No. 3 herein, besides others, at Sr. Nos. 96 to 101 as many as 20 posts of Motor Vehicle Inspector (Survey) and (Technical) under State Cadre/Division (sic) were notified for selection. The minimum qualification prescribed was Diploma in Automobile Engineering from any recognized institute having at least 5 years experience from any recognized institute of State Transport Undertaking. The said Notification also provided horizontal reservation for ex-servicemen to the extent of 6%. 3. It is averred that as per provisions of Ex-servicemen (Re-employment in Central Civil Service & Posts) Rule, 1979, as amended time to time, read with Notification dated 27.10.1986 issued by the Government of India and Circular dated 20.12.1999 issued by the Air Force Authorities, the persons, serving in the armed forces of the Union, have been 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. 4. 4. It is averred that since the petitioner had to retire on 31.05.2006, i.e., within a period of about five months from the date of issuance of advertisement notice dated 29.12.2005, he being eligible in all respects, either in terms of qualification and experience or in terms of aforementioned Rules as well as Notification/Circular, also applied in response to the said advertisement notification for the post of Motor Vehicle Inspector (Survey) and (Technical) by separate application forms against each Sr. Nos. 96 to 101 under the category of Ex-serviceman. It is also averred that at the time of filling up of application form, the petitioner also got No Objection/Permission Certificate from the concerned authorities of Air Force. 5. It is averred that despite being eligible for the said post, being the only candidate under the category of Ex-serviceman, he was not called for interview. The petitioner made a representation to the Chairman of respondent-Board on 15.01.2007 and also filed SWP No. 110/2007 before this Court, in which this Court vide order dated 23.01.2007 directed respondent No. 3 to interview the petitioner for the said post under Ex-serviceman Category, provided he fulfills the eligibility qualifications. It is averred that after the order of this Court, the petitioner was allowed to appear in the interview. 6. Now the grievance of petitioner is that during the pendency of said writ petition, the respondent-Board effected the selection of respondent No. 4 under RBA Category ignoring the claim of petitioner on the ground that at the time of submission of application forms, the petitioner was in the service of Union of India, therefore, did not fall within the scope of definition of ex-serviceman. Hence, the present writ petition. 7. The stand of petitioner is that number of similarly situated persons to that of him, who were yet to retire at the time of submission of application forms have been recommended by the respondent-Board for their selection/appointment under the category of Ex-servicemen, whereas in his case he has been denied the said benefit. 8. Hence, the present writ petition. 7. The stand of petitioner is that number of similarly situated persons to that of him, who were yet to retire at the time of submission of application forms have been recommended by the respondent-Board for their selection/appointment under the category of Ex-servicemen, whereas in his case he has been denied the said benefit. 8. Objections have been filed on behalf of respondent-Board averring therein that though respondent-Board is under a legal obligation to give effect to J & K Reservation Act, 2004 and the Rules framed thereunder, however, the interpretation sought to be placed by the petitioner on Rule 4 of said rules, particularly with regard to provisions of reservation for ex-servicemen is totally misplaced and not countenance by law. Further, it is averred, that in terms of Rule 2(x) of Reservation Rules of 2005, at the time of submission of application form, the petitioner was still in service and had not been discharged, therefore, was not entitled to the benefit of reservation provided only to the ex-servicemen. Further, it is averred that the candidature of petitioner under ex-serviceman category has rightly been rejected and that respondent No. 4 came to be considered under RBA Category. It is further averred that the past precedent, if any, which is dehors the rules, cannot be made basis for committing another wrong. 9. I have heard learned counsel appearing for the parties, considered their rival contentions and also perused the file minutely. 10. The petitioner claims to possess the qualification of B.Sc., M.A., MBA, besides Diploma in Automobile Engineering. He also claims that he was granted driving license for driving Heavy Vehicles during his 20 years' service period in the Indian Air Force. Admittedly, these facts have not been disputed or denied by the respondent-Board either in the objections filed to the writ petition or during the course of hearing of this petition; meaning thereby in terms of criteria fixed by the respondent-Board for educational as well as technical qualification, the petitioner was fully eligible to apply for the post-in-question. 11. Admittedly, these facts have not been disputed or denied by the respondent-Board either in the objections filed to the writ petition or during the course of hearing of this petition; meaning thereby in terms of criteria fixed by the respondent-Board for educational as well as technical qualification, the petitioner was fully eligible to apply for the post-in-question. 11. Now, the only ground which the respondent-Board has taken in rejecting the claim of petitioner is that in terms of Rule 2(x) of J & K Reservation Rules of 2005, the claim of petitioner could not be considered under the category of Ex-serviceman because at the time of submission of application form, the petitioner was still in service and had not been discharged. 12. Whereas, the stand of petitioner is that as per provisions of Ex-Servicemen (Re-employment in Central Civil Services & Posts) Rules, 1979 read with Notification dated 27.10.1986 and Circular dated 20.12.1999 (supra), the persons serving in the armed forces of the Union, have been permitted to apply for re-employment one year before the completion of the specified terms of engagement and avail themselves of all the concessions available to ex-servicemen. He, thus, stated that since he was to retire just within a period of five months from the date of issuance of advertisement notice for the post-in-question, he was fully eligible to apply for the said post. 13. Now the question arises for consideration is: whether the petitioner could have applied for the post-in-question under the category of Ex-servicemen while he had still been left four months service to get retired from the last date of submission of application forms. 14. Notification dated 27.10.1986 issued by the Government of India, Ministry of Personnel, P.G. & Pensions clearly provides that "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 terms of engagement in the Armed Forces of the Union. 15. Therefore, in terms of said notification the petitioner was fully eligible to apply for the post-in-question and avail all concessions available to ex-servicemen. 15. Therefore, in terms of said notification the petitioner was fully eligible to apply for the post-in-question and avail all concessions available to ex-servicemen. Even petitioner was also issued No Objection Certificate by the concerned Air Force Authority to appear for any competitive examination. 16. Now, it would be appropriate to reproduce the relevant portion of paragraph-8 of objections filed by the respondent-Board hereunder: "8.....At first place any circular issued by the Government cannot supersede the provisions of SRO 294 of 2005 and secondly the notification of Govt. of India as well as the circular issued by the Air Force Authorities only entitles a candidate to apply for re-employment in the civil services of the state one year before his retirement. The circular as well as the government notification issued by the Govt. of India does not declare a person to be an ex-serviceman while in service of the Army, Navy or Air Force." 17. What is to be seen here that the respondent-Board has itself admitted that the Notification issued by the Government of India (supra) entitles a candidate to apply for re-employment in the civil services of the State one year before his retirement; meaning thereby although. The respondent-Board has admitted that the petitioner was eligible/entitled to apply for the post-in-question, yet the stand of respondent-Board is that the said Notification does not declare a person, petitioner herein, to be an ex-serviceman while in the service of Air Force. 18. Since the respondent-Board has itself admitted that in terms of said notification the petitioner was entitled to apply for re-employment in the civil services of the State one year before his retirement, now the question arises for consideration is whether the said notification declares a person to be an ex-serviceman while in the service of Air Force. 19. 18. Since the respondent-Board has itself admitted that in terms of said notification the petitioner was entitled to apply for re-employment in the civil services of the State one year before his retirement, now the question arises for consideration is whether the said notification declares a person to be an ex-serviceman while in the service of Air Force. 19. Although Notification dated 27.10.1986 (supra) does not declare a person to be an ex-serviceman while serving in the Armed Forces of the Union and certainly it cannot be so, however, it clearly permits such persons to avail themselves of all concessions available to ex-servicemen if they opt to apply for re-employment one year before the completion of specified terms of engagement; meaning thereby such persons though cannot acquire the status of ex-servicemen till they complete the specified terms of engagement, yet they have been permitted to avail all concessions available to ex-servicemen if they opt to apply for re-employment one year before the completion of their engagement. In the instant case, the petitioner had been left only four months of service with the Air Force from the last date of submission of application forms; therefore, he had rightly applied for the post-in-question under the category of Ex-servicemen thereby availing the concession in terms of the said notification. Further, advertisement notice came to be issued on 29.12.2005; last date for submission of application forms for the post-in-question was 31.01.2006, whereas the petitioner came to be retired on 31.05.2006. The interview of petitioner for the post-in-question was conducted in the year 2007, when certainly the petitioner had already attained/acquired the status of an ex-serviceman; meaning thereby when the selection process for the post-in-question actually came to be started, the petitioner had already retired from service thereby attaining the status of ex-servicemen. Otherwise too, it is not the stand of respondent-Board that when the interview of petitioner came to be conducted, he was in active service of Indian Air Force. Therefore, in terms of said Notification, the petitioner was fully entitled to apply for the post-in-question under the category of Ex-servicemen and get the concession as available to ex-servicemen. Thus, on this score alone, the writ petition deserves to be allowed. 20. The next contention of learned counsel for respondent-Board is that the interview of petitioner came to be conducted only under the directions of this Court passed on 23.01.2007 in SWP No. 110/2007. Thus, on this score alone, the writ petition deserves to be allowed. 20. The next contention of learned counsel for respondent-Board is that the interview of petitioner came to be conducted only under the directions of this Court passed on 23.01.2007 in SWP No. 110/2007. Therefore, before proceeding further, it would be appropriate to reproduce hereunder the relevant portion of order dated 23.01.2007 passed in SWP No. 110/2007: "In the meanwhile, Respondent No. 3 J & K Service Selection Recruitment Board shall interview the petitioner for the post of Motor Vehicle Inspector (Survey and Technical) for which he had applied vide Notification No. 10 of 2005, dated 29.12.2005 seeking reservation under Ex-serviceman category provided he fulfills the eligibility qualifications." 21. A perusal of aforesaid direction clearly reveals that although respondent-Board was directed to interview the petitioner under Ex-serviceman category, but the said direction was under the condition that if he fulfills the eligibility qualifications; meaning thereby the said direction was not mandatory, rather discretion had been granted to respondent-Board to conduct the interview of petitioner under Ex-serviceman category provided he fulfills the eligibility qualification. Thus, in terms of order dated 23.01.2007 (supra), freedom to decide what should be done in the case of petitioner-whether to interview or not, squarely lay on respondent-Board after ascertaining the fact whether the petitioner fulfills the eligibility qualifications. Therefore, it is wrong on the part of respondent-Board to aver that the interview of petitioner was conducted only under the direction of this Court. As per direction of this Court, respondent-Board was within its right not to conduct the interview of petitioner if he was lacking in eligibility qualifications and bring the factual position before this Court. Since the respondent-Board has conducted the interview of petitioner, it means respondent-Board too has admitted the eligibility of petitioner being a candidate under the category of Ex-serviceman. Otherwise too, in paragraph-8 of objections, the respondent-Board has specifically averred that "any circular issued by the Government cannot supersede the provisions of SRO 294 of 2005"; meaning thereby respondent-Board has itself admitted that in terms of Rule 4 of J&K Reservation Rules of 2005 (SRO 294 of 2005), 6% horizontal reservation has been provided to ex-servicemen for direct recruitment in each service, class, category and grade in favour of permanent residents of the State. Thus, at this stage respondent-Board is debarred from taking a plea that the interview of petitioner was conducted only under the directions of this Court. Therefore, on this score too the writ petition deserves to be allowed. 22. Further, in the writ petition as well as in supplementary affidavit dated 26.03.2012 the petitioner has given details of number of persons, who were similarly situated to that of him and have been allowed the benefit of Ex-servicemen Category in terms of Ex-servicemen (Re-employment in Central Civil Service) Rules, 1979. One such example given is of two persons, namely, Deepak Sharma son of Sh. Puran Chand Sharma and Keshav Chander Khajuria son of Karan Chand Khajuria, who had also applied under ex-servicemen Category pursuant to same Advertisement Notice No. 10 of 2005 and whose interviews were conducted after the culmination of process of interview for the post of Motor Vehicle Inspectors. Even respondent No. 3 has also admitted this position in paragraph-15 of objections, however, the stand of respondent-Board is that the past precedent, if any, which is dehors the rules, cannot be made basis for committing another wrong. It seems respondent-Board did not understand that the interviews of both the afore-mentioned persons were conducted after the culmination of process of interview for the post of Motor Vehicle Inspectors, therefore, it cannot be termed as past precedent. On one hand respondent-Board from time to time had been selecting number of candidates under the category of Ex-servicemen in terms of Ex-servicemen (Re-employment in Central Civil Service) Rules, 1979, whereas, on the other hand, denying the claim of petitioner herein, which amounts to discrimination vis-à-vis. same set of persons and the said action of respondent-Board cannot stand the test of law laid down under Articles 14 & 16 of the Constitution of India. Thus, it leaves a big question mark on the functioning as well as recruitment process of respondent-Board. Therefore, on this count also the writ petition deserves to be allowed. 23. The next contention of respondent-Board is that in terms of Rule 2(x) of J&K Reservation Rules, 2005, the petitioner cannot be termed as ex-serviceman at the time of submission of application form. Therefore, on this count also the writ petition deserves to be allowed. 23. The next contention of respondent-Board is that in terms of Rule 2(x) of J&K Reservation Rules, 2005, the petitioner cannot be termed as ex-serviceman at the time of submission of application form. Therefore, it would be appropriate to reproduce the said rule hereunder: "2(x) "Ex-servicemen" means a permanent resident of State, who has served in Army/Navy or Air Force and has been honourably discharged and has not come to notice for any criminal or anti-national activity." 24. Admittedly, an ex-serviceman is one who has honourably been discharged from Army, Navy or Air Force and the said rule only defines the meaning of ex-serviceman. Therefore, in terms of said rule, petitioner too at the time of submission of application form cannot be termed as ex-serviceman as he had left four months service from the last date of submission of application form. However, in terms of Notification dated 27.10.1986 and other relevant circulars/notifications issued by the Government of India (supra), such persons have only been permitted to apply for re-employment one year before the completion of specified terms of engagement and avail themselves of all concessions available to ex-servicemen. And, this position has also been admitted by the respondent-Board in paragraph-8 of objections, whereby respondent-Board has specifically admitted that said notification only entitles a person to apply for re-employment one year before his retirement. However, at the time of commencement of actual selection process, such persons ought to have been discharged from active service of Army, Navy or Air Force. It seems the purpose of issuance of said notification is only to allow such persons to apply for re-employment in the civil services of the Centre or State one year before the completion of specified terms of engagement so as to enable them not to cross the maximum age limit to apply under the category of Ex-servicemen. A Division Bench of Allahabad High Court has taken somewhat similar view in case, titled as, Markandey Rai v. State of U.P., decided on 09.01.1998, 1998 (1) AWC 755 . 25. Therefore, in such cases, Rule 2(x) of J & K Reservation Rules, 2005 cannot be read in isolation, rather it has to be read with Notification dated 27.10.1986 and other relevant circulars when such a situation arises. 25. Therefore, in such cases, Rule 2(x) of J & K Reservation Rules, 2005 cannot be read in isolation, rather it has to be read with Notification dated 27.10.1986 and other relevant circulars when such a situation arises. Since petitioner too had been left only four months of service from the last date of submission of application form, thus in terms of Notification dated 27.10.1986, he too was entitled to apply for the post-in-question and avail all concessions available to an ex-servicemen. Further, it is not the case of respondents that when the petitioner was interviewed, he had been serving in the Indian Air Force, rather when the interview of petitioner was conducted, admittedly he too had already attained/acquired the status of an ex-servicemen. Therefore, I do not find any force in the contention of learned counsel for respondent-Board and the same is, accordingly, rejected. 26. Further, it has been averred by respondent-Board that petitioner has been awarded 9.33 points out of 20 points in the interview. It has also not been denied by the respondent-Board that no candidate under the category of Ex-servicemen has been selected for the post-in-question. Further, it is also not the stand of respondent-Board that the result of petitioner was subject to the final outcome of SWP No. 110/2007. Even, it has also come on record that at the time of issuance of select list, recommendation of respondent No. 4 came to be withheld for want of original license, who came to be selected under RBA Category, whereas respondent-Board has also not denied that the petitioner also belongs to RBA Category. 27. Therefore, in view of what has been discussed above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed. Respondents are directed to treat the petitioner to have been selected/appointed against the post of Motor Vehicle Inspector (Survey) and (Technical) pursuant to Advertisement Notice No. 10 of 2005, dated 29.12.2005 under the category of Ex-servicemen and he shall be allowed all consequential benefits including promotion, seniority etc. with effect from the date respondent No. 4 came to be appointed as such. However, petitioner shall not be entitled to monetary benefits till he is actually appointed against the post-in-question. In case there is no post of Motor Vehicle Inspector (Survey) and (Technical) available as on date, respondents are directed to create a supernumerary post for the petitioner. with effect from the date respondent No. 4 came to be appointed as such. However, petitioner shall not be entitled to monetary benefits till he is actually appointed against the post-in-question. In case there is no post of Motor Vehicle Inspector (Survey) and (Technical) available as on date, respondents are directed to create a supernumerary post for the petitioner. Let relevant order(s) in this regard be issued within a period of two months from today. Connected miscellaneous petition(s), accordingly, stands disposed of. B. SWP No. 110/2007 28. Through the medium of this petition, the petitioner is seeking a direction to the respondents to allow him to appear in the interview for the post of Motor Vehicle Inspector under Ex-serviceman category. 29. Since SWP No. 629/2008 has been allowed, the present writ petition does not survive and is disposed of as such along with connected miscellaneous petition(s).