Karnataka High Court
Chandrappa E T vs The State Of Karnataka on 16 October, 2012
Bench: N.K.Patil, B.S.Indrakala
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF OCTOBER, 2012,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE B.S.INDRAKALA
WRIT PETITION NOS.29840-841 OF 2009 (S-KAT)
Between:
1. Chandrappa.E.T,
S/o. Venkatappa,
Aged 41 years,
Occ: Police Constable,
R/o. C/o. A.Shivakumar,
H.No.2098,
Opp. Madhvamath, Harapanahalli,
Davanagere District.
2. Suresh Lakkannavar,
S/o. Chandrappa,
Aged 39 years,
Occ: Police Constable,
R/o. Yarazarvi, Tq. Savadatti,
Dist. Belgaum.
... Petitioners
(By Shri. S.M.Chandrashekar, Senior Counsel
and Shri. R.V.Burji, Advocate)
And :
1. The State of Karnataka,
Home Department,
Vidhana Soudha, Bangalore-1,
2
Rep. by its Secretary to Government.
2. The Recruitment Committee for
Recruitment of Police Sub-Inspectors,
Rep. by its Member Secretary and
Deputy Inspector General of Police,
Office of the Additional Director,
General of Police (Recruitment and Training)
Carlton House, Palace Road,
Bangalore-1.
... Respondents
(By Smt. Manjula.R.Kamadolli, HCGP)
*******
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India, praying to set aside the
order passed by their Karnataka Administrative Tribunal in
Application No.1415 and 1416/2007 and Application
No.1954-55/07 dated 01/01/2009 produced at Annexure-A
and declare the impugned Notification prescribing the
prohibition on the basis of letter dated 02/02/2006 in
respect for Ex-Servicemen as per Annexure as void and
direct the respondent to consider the petitioners case for
recruitment to the post of Police Sub Inspectors in
pursuance of Notification.
These Writ Petitions coming on for Hearing, this day,
N.K. Patil J., made the following:
O R D E R
Shri. S.M. Chandrashekar, learned senior counsel appearing for petitioners at the outset submits that he would confine these writ petitions only insofar as it relates to Application Nos.1415/2007 and 1416/2007 3 passed by Tribunal. His submission is placed on record and these petitions are confined to only Application Nos.1415/2007 and 1416/2007.
2. Petitioners herein, questioning the correctness or otherwise of the impugned common order dated 1st January 2009, passed by the Karnataka Administrative Tribunal, at Bangalore, only insofar as it relates to Application Nos.1415/2007 and 1416/2007, produced at Annexure-A, have presented these writ petitions. Further, they have sought to declare that the impugned Notification prescribing prohibition on the basis of letter dated 2nd February 2006, bearing No.O.E/90/Po.Si.Aa/ 2005, in respect of Ex-Servicemen, as void and to direct the respondents to consider the petitioners' case for recruitment to the post of 'Police Sub Inspectors' in pursuance of the Notification.
3. Petitioners herein along with others had filed Application Nos.1415/2007 and 1416/2007 on the file 4 of the Karnataka Administrative Tribunal, Bangalore, (hereinafter referred to as 'Tribunal' for short), contending that they are the ex-servicemen, released from the Armed forces seeking recruitment to the post of Police Sub-Inspector in the reserved vacancies meant for Ex-servicemen. It is the policy of the Union and the State Governments to provide employment to the Ex- servicemen after they are discharged from the Armed Forces to ensure their appointment into the Civil posts under the State Government and Union Government till they reach the age of 58 years or 60 years, as the case may be. The normal qualifying age for recruitment to civil and other posts is fixed between 21 and 24 years in case of General Merit candidates and relaxation in the age for Scheduled Castes and Scheduled Tribes is provided upto 26 years. The uniform policy of the Union and the State Government for recruitment of Ex- servicemen is to relax the age by number of years of ex- service in the armed forces plus three years, so as to 5 make them eligible to the post. The object behind providing three years relaxation is to make sure that an Ex-serviceman is absorbed in the civil post within three years from the date of release from the Army. To achieve this object, the State Government has made a provision in the Karnataka Civil Services (General Recruitment)Rules, 1977, (hereinafter refereed to as the "General Recruitment Rules, 1977" for short), providing for relaxation of age by three years plus number of years of service rendered in the Armed forces under Rule 6 (3)(c) of the General Recruitment Rules, 1977. Accordingly, the petitioners herein had applied for recruitment to the posts of Police Sub-Inspectors in pursuance of the Notification dated 25th September 2006. The Notification prescribes a prohibition for those Ex-servicemen who are working in any civil post or in the Police Department from seeking recruitment under the Notification. It is the case of petitioners that the said prohibition, which is imposed on the basis of 6 the letter dated 2nd February 2006, is illegal and without any authority of law.
4. Further, it is the case of the petitioners that they were invited for Physical Standard and Physical Efficiency Test and were qualified in the said test. They were also invited for the written Examination held on 4th February 2007. Both these petitioners appeared for the Written Examination in pursuance of the call letter issued to them and the Recruitment Committee announced the results of the written Examination on 19th February 2007, indicating the Roll Numbers of eligible candidates for viva-voce Examination. The names of the petitioners did figure in the said list. Thereafter, the petitioners were issued with call letters for appearing for viva-voce Examination, in pursuance of the results of the written Examination. The Recruitment Committee issued a notice dated 24th February 2007 to the petitioners to intimate with regard 7 to previous employment, by seeking age relaxation under Ex-servicemen quota. When the petitioners approached the respondent Committee, the petitioners were asked to surrender the call letters and they were asked to give an undertaking to the effect that they were working in the Police Department claiming age relaxation under Ex-servicemen quota. The officials of the respondent Committee orally informed the petitioners that they were not eligible for recruitment to the post of Police Sub-Inspector in terms of the Notification and the respondents refused to issue suitable endorsement to that effect. Aggrieved by the action of the respondents, the petitioners were constrained to file Application Nos.1415/2007 and 1416/2007 before the Tribunal and the same was taken up along with other connected Applications.
5. Upon service of notice to the respondents, they represented through their counsel and filed their objections. The Tribunal, after hearing the learned 8 counsel appearing for petitioners, learned Government Pleader appearing for respondents and after perusal of the relevant material available on file, including the relevant Rules that are applicable in terms of the Notification, has proceeded to dismiss the aforesaid Applications observing that the decision taken by the respondents to reject the claim of the petitioners for selection and appointment to the posts of Sub- Inspectors of Police in the quota of Ex-servicemen is not illegal. The said order is passed on a mistaken notion, without going into the definition of Ex-serviceman and other relevant Rules. Being aggrieved by the said order passed by Tribunal, the petitioners herein felt necessitated to present these two writ petitions, seeking appropriate reliefs, as stated supra.
6. The principal submission canvassed by the learned Senior counsel appearing for petitioner at the outset is that, the Tribunal grossly erred in passing the 9 impugned order, resulting in serious miscarriage of justice. It is crystal clear from Rule 6 (3)(c) of the General Recruitment Rules that, there is no prohibition for the applicants/petitioners to appear for the Examination claiming under Ex-servicemen quota and the maximum age limit for candidates claiming under Ex-servicemen category is enhanced by three years plus the number of years of service rendered by them in the Armed Forces. Therefore, when the petitioners have fulfilled all the eligibility criteria, including the fulfillment of prescribed age limit for the post of Police Sub-Inspector, the respondents are not justified in not considering the case of petitioners and the Tribunal is not justified in dismissing the applications filed by petitioners holding that the rejection of the claim of petitioners is not illegal. In order to substantiate his case, he submits that when the petitioners have been permitted to take up written examination pursuant to the Notification issued, the respondents are not justified 10 in prohibiting them to appear for the viva-voce, by issuing a communication dated 2nd February 2006, and imposing some prohibition. Further, the respondents have denied to give an endorsement to that effect. Further he submits that the respondents are not justified in withdrawing the benefit once extended pursuant to a provision of the Rule, unless and until the said provision is either withdrawn, modified or cancelled. As long as the said provision is in vogue, the petitioners are very much entitled to the benefit of the said provision of the General recruitment Rules. Further, he placed reliance on the order passed by the larger bench of the very same Tribunal in Application No.600/2010, on 22nd February 2012, in the case of Bheemashankar Karmungi Vs. The State of Karnataka and others and quipped to point out that the larger bench of the Karnataka Administrative Tribunal has allowed the said Application, holding that the applicant therein is entitled to be considered under the Ex- 11 servicemen category and consequently his case shall be considered within two months therefrom and if he is otherwise eligible for appointment and he shall be appointed from the date the respondents 4 to 6 therein were appointed with all consequential benefits except arrears of salary prior to the date he reports for duty in case he is appointed. Therefore, he submits that in view of the said order passed by the larger bench of the Tribunal, the impugned order passed by Tribunal rejecting the case of these petitioners cannot be sustained and is liable to be set aside, at the threshold.
7. In order to further substantiate his contention, learned senior counsel relied upon the full bench decision of the Punjab and Haryana High Court (D.B.) reported in 1980 (3) Services Law Reporter 400 in respect of C.W.P..No.1616/1977, disposed of on 6th June 1980, in the case of Dr.,Jagmohan,Singh and another Vs. The State of Punjab and others, wherein the case of 12 Harbhajan Singh against The State of Punjab and Another 1977 (2) S.L.R. 130 is referred at page.405. In Harbhajan Singh's case (supra), it is held that if no superior post is readily available immediately on his release from the Armed Forces, he must wait till such post becomes available, and it may never become available. In the meanwhile, he is precluded from accepting an inferior post even to keep his body and soul together. In Dr. Jagmohan Singh's case, the Punjab and Haryana High Court has upheld the said view and struck down Rule 2(d)(ii)(b) of Demobilized Armed Forces Personnel (reservation of Vacancies in the Punjab State Non-Technical Services) (1st Amendment)Rules, 1977 as unconstitutional and ultra vires and directed that the petitioners therein be considered for the posts for which they had applied in 1976 treating them to be released Indian Armed Personnel as envisaged in 1968 and 1965 Rules. Therefore, he submits that on the basis of the aforesaid 13 decisions also, the petitioners herein are eligible to be considered for the posts of Police Sub-Inspectors.
8. Further he also relied upon the communication issued by the competent authority of the Home department dated 10th December 2010, addressed to the Director, Department of Sainik Kalyan and Rehabilitation, wherein the Government itself has clarified that as per Rule 6(3)(c) of the General Recruitment Rules, there is no prohibition for the Ex- servicemen from claiming selection and appointment under Ex-servicemen category again for the second time. Therefore, he submits that if the said aspect is taken into consideration, then the impugned order passed by Tribunal cannot be sustained and is liable to be set aside, at the threshold.
9. Per contra, learned Government Pleader appearing for respondents sought to justify the impugned order passed by Tribunal, stating that the 14 same is passed after due consideration of the material available on record and also in pursuance of the relevant Rules. However, she has not disputed the fact that in view of the order passed by the larger bench of the Karnataka Administrative Tribunal, in Application No.600/2010, the petitioners are entitled to be selected and appointed to the higher post. Further, after going through the communication dated 10th December 2012, stated to have been issued by the competent authority of the Department, wherein it has been clarified that there is no prohibition for the Ex-servicemen from claiming selection and appointment under Ex- servicemen category again for the second time, she submits that in the light of the order passed by the larger bench of the Tribunal and also the aforesaid communication issued, clarifying the stand of the Government, the instant writ petitions may be disposed of.
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10. After carefully considering the submission of the learned senior counsel appearing for the petitioners, learned Government Pleader appearing for respondents and after perusal of the order impugned passed by the Tribunal, it is manifest on the face of the said order that the Tribunal has grossly erred in passing the impugned order, resulting in serious mis-carriage of justice. For better understanding, it is worthwhile to know the exact definition of the word 'Ex-serviceman', in Rule 2(1)(i) of the General Recruitment Rules, which reads as under:
(i) "Ex-serviceman" means a person, who has served in any rank (whether as a combatant or as non-combatant) in the Regular Army, Navy and Air Force of the 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 16
(a) who has 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; or
(c) who has been released otherwise than on his own request from such 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 in-efficiency and has been given a gratuity;.."
Further, it is also worthwhile to extract the provisions of Rule 6 (3) of the General Recruitment Rules which reads thus:
Rule. 6 (3): Notwithstanding anything contained in sub-rule(1) the maximum age 17 limit for appointment shall be deemed to be enhanced in the following cases to the extent mentioned, namely.-
(a) xx xx xx (b) xx xx xx (c) in the case of a candidate who is an ex-
serviceman, [by three years plus the number of years] of service rendered by him in the Armed Forces of the Union;
(d) xx xx xx (e) xx xx xx (f) xx xx xx (g) xx xx xx (h) xx xx xx (i) xx xx xx (j) xx xx xx (k) xx xx xx
11. Therefore, from a perusal of the aforesaid extraction relating to definition of 'Ex-servicemen' and also the relevant Rule, it is crystal clear that, 18 notwithstanding anything contained in Sub-Rule (1), under Rule 6 (3) (c) of the General Recruitment Rules, 1977, there is no prohibition for Ex-servicemen to seek selection and appointment to any higher post, for the second time, if it is notified by Government. The said aspect has been rightly looked into and considered by the larger bench of the Tribunal and upheld that the view taken in Chandrappa's case and Veerayya Hiremath's case is not the correct interpretation of law relating to Ex-servicemen and consequently over ruled the view taken by the Tribunal that the Ex-servicemen are prohibited from claiming reservation under Ex-
servicemen's category, to any higher post, for the second time. The larger bench of the Tribunal, further made it clear that the said overruling is prospective in nature and the view taken by it does not affect the cases already settled on the basis of the view taken in earlier decisions. In Harbhajan Singh's case (supra), the full 19 bench of the Punjab and Haryana High Court has observed as follows:
" In the view that we have taken it is unnecessary for us to go into the question of the vires of Rule 3(iii) (cc) (ii) (b). We would, however like to add that the rule does appear to our mind to be unreasonable. These rules prescribing a quota of reservation for released Armed Forces Personnel are in force for a limited period only. If during that period a person is otherwise eligible for appointment, we see no justice in excluding him from appointment on the ground that he accepted some other employment in the meanwhile. It looks as if a person belonging to the category of released Armed Forces Personnel accepts an inferior post he does so on pain of losing eligibility to superior post. If no superior post is readily available immediately on his release from the Armed Forces he must wait till such post become available, and it may never become available. In the meanwhile, he is precluded from accepting an inferior post even to keep his 20 body and soul together. Surely, that is not how we reply our debt to those that readily shed their blood for us."
(emphasis supplied) Following the aforesaid ruling of the full bench, the Division Bench of the Punjab and Haryana High Court, in Dr. Jagmohan Singh's case (supra) held at paragraph 11 as follows:
Para.11. We have carefully considered the contentions raised by the learned counsel. The State offered the concessions to the persons, who joined armed forces during the emergency as an incentive, it was to draw young-men to the armed forces, who were not otherwise willing to join them. To do so, assurance was given to them that on their release from the armed forces they will be suitably adjusted on civilian jobs. The object of granting these concessions was to compensate the ex-service personnel by relaxing the upper age limit and educational qualifications at the time of admissions to civil posts and service and by counting the 21 period of approved military service towards seniority, promotion, increment and pensions etc. To restrict these concessions to the first appointment only after the release from the armed forces does not in any manner promote the object. It rather defeats the same." (emphasis supplied) From the aforesaid observation, we have to bear in mind the object of the concession given to Ex-servicemen. As rightly observed by the Division Bench, the object of granting these concessions is to compensate the Ex-
servicemen by relaxing the upper age limit and educational qualifications at the time of admissions to civil posts and service and by counting the period of approved military service towards seniority, promotion, increment and pensions etc and any restriction of the same only to first appointment would definitely take away the benefit/concession granted or defeat the very purpose and object of giving such concessions.22
12. Therefore, having regard to the well settled law laid down by the Division Bench of the Punjab and Haryana High Court in Dr. Jagamohan Singh's case (supra), following the full bench decision in Harbhajan Singh's case (supra), the decision of the larger bench of the Tribunal in Application No.600/2010 coupled with the communication dated 10th December 2010 issued by the Competent authority clarifying the position, we are of the considered opinion that the concession given to the Ex-servicemen, under the statute cannot be taken away from them unless and until such concessions are withdrawn or modified or cancelled by the competent authority of the Department, following due procedures. Merely by issuing a communication, (in the instant case, communication dated 2nd February 2006), the benefit/concession given to Ex-servicemen cannot be taken away nor the same is sustainable.
Therefore, we are of the considered view that, at any stretch of imagination, the impugned order passed by 23 Tribunal dated 1st January 2009 insofar as it relates to Application Nos.1415/2007 and 1416/2007, the Notification dated 25th September 2006, bearing No.18/Nemakathi/2006-07 challenged in the said Applications and also the communication dated 2nd February 2006, bearing No.O.E./90/Po.Si.Si.Aa/2005 cannot be sustained and are all liable to be set aside.
13. Further, one more aspect to be borne in mind is that, after realizing the mistake committed by the competent authority of the respondent Department, in issuing the communication dated 2nd February 2006, on the basis of the Notification dated 25th September 2006, the competent authority of the Department has issued one more communication dated 10th December 2010 bearing No.O.E./96/ka.si.se/2010 wherein it has been clarified that as per Rule 9 (1) of the General Recruitment Rules, 1977 read with Rule 6 (3)(c), there is no prohibition for the candidate/applicant/petitioners 24 herein for filing an Application, seeking selection and appointment to any higher post, for the second time.
14. Having regard to the facts and circumstances of the case including the factual and legal aspects of the matter, these two writ petitions are allowed.
The impugned order passed by Tribunal dated 1st January 2009, insofar as it relates to Application Nos.1415/2007 and 1416/2007, vide Annexure A, the Notification dated 25th September 2006 bearing No.18/Nemakathi/2006-07 challenged in the said Applications, only insofar as it relates to prescribing prohibition on the basis of communication dated 2nd February 2006 bearing No.O.E./90/Po.Si.Si.Aa/2005 and also the communication dated 2nd February 2006 bearing No.O.E./90/Po.Si.Si.Aa/2005 are all hereby set aside:
The respondents herein are directed to consider the case of petitioners for recruitment to the Post of Police Sub-Inspectors (Civil) in pursuance of the Notification dated 25th 25 September 2006, bearing No.18/Nemakathi/ 2006-07, and extend all consequential benefits flowing therefrom.
SD/-
JUDGE SD/-
JUDGE BMV*