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[Cites 2, Cited by 3]

Gujarat High Court

Bharatbhai Lilabhai Bhutiya vs State Of Gujarat on 7 June, 2021

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

      C/SCA/2830/2017                                    ORDER DATED: 07/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2830 of 2017

================================================================
                          BHARATBHAI LILABHAI BHUTIYA
                                    Versus
                          STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MS G R VIJAYALAKSHMI(5047) for the Petitioner(s) No. 1
MR K.M.ANTANI, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
================================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                  Date : 07/06/2021

                                     ORAL ORDER

Heard learned Assistant Government Pleader Mr.K.M.Antani for the respondent­State through video conference.

1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Antani waives service of notice of rule for and on behalf of the respondent­State.

2. This matter is filed through the High Court Legal Services Committee and represented by learned advocate Ms.G.R.Vijayalakshmi. Learned advocate Ms.Vijayalakshmi is unable to remain present through video conference link and therefore the Court has considered the matter on merits and after hearing learned Assistant Government Pleader Mr.Antani, the matter is disposed of.

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C/SCA/2830/2017 ORDER DATED: 07/06/2021

3. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the action on the part of the respondents in not considering the case of the petitioner as Ex­Service Man.

4. The petitioner is Ex­Service Man and after retirement from the Short Service Commission with Sahastra Seema Bal, was working as Fisheries Guard since 8th October, 2008 on contract basis.

5. It appears that the petitioner thereafter applied for the post of Sub Registrar Grade­II in the year 2013 pursuant to the on­line advertisement issued by the Revenue Department. The petitioner was permitted to appear in written examination vide letter dated 28.05.2013. Accordingly, the petitioner appeared in the written examination on 09.06.2013 and cleared the same as per the communication dated 03.09.2013 from the Office of the respondents and was directed to remain present for verification of original documents on 13.09.2013.

6. However, the name of the petitioner was not reflected in the final selection list for the recruitment of Sub­Registrar Grade­II (Division­III)­Direct Recruitment. The petitioner therefore personally approached and filed various applications before the respondents and thereafter received a communication dated 27.12.2013 intimating the petitioner that the petitioner could not be selected for the post applied by him on the ground that the services rendered by the petitioner with Page 2 of 7 Downloaded on : Sat Jan 15 03:47:50 IST 2022 C/SCA/2830/2017 ORDER DATED: 07/06/2021 Sahastra Seema Bal (for short 'the SSB') cannot be considered as service rendered in Military and as such, the petitioner is not entitled to be selected under category of "Ex­Service Man".

7. The petitioner also referred to the Office Memorandum dated 23rd November, 2012 issued by the Government of India, Ministry of Home Affairs, Police Division­II (Resettlement and Welfare Directorates) whereby, the Central Government has referred to the approval of the Cabinate Committee on security with regard to the proposal of the said Ministry to declare retired Central Armed Police Force personnel from Central Reverse Police Force (CRPF), Border Security Force (BSF), Central Industrial Security Force (CISF), Indo Tibetan Border Police (ITBP) and Sahastra Seema Bal (SSB) as Ex­ Central Armed Police Force Personnel (Ex­CAPF Personnel). In the said Office Memorandum it was also directed that the State/Union Territory Governments concerned to extend suitable benefits to such persons on the lines of the benefits extended by the State/Union Territory Governments to the Ex­Servicemen. However, said Office Memorandum was not considered by the respondents as the same was not pressed into service by the State Government.

8. The petitioner has therefore, filed this petition. This Court (Coram: Hon'ble Mr.Justice S.G.Shah as he was then) passed the following order on 14th March, 2017:

"Heard learned advocates for the parties. Perused the record.
Considering the facts and circumstances emerging from the record, when petitioner has came forward with his facts only, Page 3 of 7 Downloaded on : Sat Jan 15 03:47:50 IST 2022 C/SCA/2830/2017 ORDER DATED: 07/06/2021 it is necessary to call the respondents to disclose relevant facts and information on record at the earliest. For the purpose, let there be a NOTICE returnable on 6.6.2017.
It is made clear that appointment, if any made by the respondents shall be subject to outcome of this petition.
Learned AGP waives service of notice on behalf of the respondent - State only on receipt of full set of pleadings within two days, if not provided till date.
Respondent is however directed to file affidavit in reply within 30 days from the date of receipt of notice, without fail. Respondents are further directed to provide copy of such reply to the other side well in advance irrespective of holidays, vacation or other exigency. On receipt of such reply, petitioner may file affidavit in reply if so desired within next 15 days from the date of filing of affidavit in reply by the respondent/s. Therefore, next returnable date is fixed considering the time required for service of notice and time granted to both the sides to complete the pleadings.
It is made clear that on the returnable date, if affidavit in reply and rejoinder is not filed, Court may not grant further time and may proceed further to dispose of the matter in accordance with law."

9. The respondents have filed an affidavit­in­reply pursuant to the aforesaid order and the Assistant Inspector General of Registration, Gujarat State, Gandhinagar has stated on oath as under:

"7. I say and submit that by way of this petition the present petitioner seeking direction against the respondent to implement the government resolution dated 23.11.2012 and also give the benefit of GR dated 23.11.2012 and declared present petitioner as Ex­serviceman (Sahasthra Seema Bal). In this context I humbly submit that the prayer as sought for by the petitioner is cannot be granted mainly on the ground the as per the definition of Ex­service man which is given in Rule 2(C)(i) of the Gujarat Service (Reservation of Vacancies for Ex­Service Man in Class­III and Class­IV post and service) (Amendment) Rules 1994. The services of the petitioner does not include in the definition of Ex­service man.
8. I say and submit that the Central Government has also cleared in their notification dated 04.10.2012 inter alia the Ex­service man does not include CAPF. It only includes regular Army, Navy and Air force of the Indian Union. A copy of the notification dated 04.10.2012 is annexed herewith is marked as Page 4 of 7 Downloaded on : Sat Jan 15 03:47:50 IST 2022 C/SCA/2830/2017 ORDER DATED: 07/06/2021 Annexure­R1.
9. I say and submit that by Office memorandum dated 08.10.2014 inter alia i.e. clearly stated that the benefit of Ex­service man cannot be Ex­CAPF personal or any other class of service. A copy of Office Memorandum dated 08.10.2014 is annexed herewith is marked as Annexure­R2.

10. I say and submit that on the basis of Central Government notification dated 04.10.2012 the state Government has amended their rules by way of notification dated 22.01.2018 issued by General Administration Department inter alia Rule­2(C)(i) is clarify the definition of Ex­service man. A copy of notification dated 22.01.2018 is annexed herewith is marked as Annexure­R3."

10. Learned Assistant Government Pleader Mr.Antani submitted that in view of the above averments made in the affidavit­in­reply, the respondents have relied upon the definition of Ex­Service Man as per the notification dated 04.10.2012 which refers only to persons who have served in Regular Army, Navy and Air Force of the Indian Union. As the petitioner has worked in SSB and therefore he is not considered as an Ex­Service Man. It was further submitted that the State Government in the year 2018 has adopted Para Military Rules for State Civil Service as per the Central Rules and therefore, the petitioner cannot be considered as an Ex­Service Man so as to re­ employ him for the post of Registrar (Grade­II) in the reserved category of Ex­Service Man.

11. Having heard the learned Assistant Government Pleader Mr.Antani and having gone through the materials on record, it appears that there is no dispute that petitioner has served with SSB. At the relevant time, when the recruitment of Registrar Grade­II was made by the respondent, no rules pertaining to Ex­Service Man was Page 5 of 7 Downloaded on : Sat Jan 15 03:47:50 IST 2022 C/SCA/2830/2017 ORDER DATED: 07/06/2021 formed as the Gujarat Ex­Service Man (Recruitment to State Civil Services and Posts) Rules, 2018 was published vide notification dated 22nd January, 2018 only. It appears that at the relevant time, the notification dated 4th October, 2012 was available which amended the Ex­ Service Man (Re­employment in Central Civil Services and Posts) Rules, 1979 (for short 'the Rules, 1979'). As per the amended rules, Clause (c) of Sub­rule (I) of Rule 2 was substituted as under:

"(c) An 'ex­serviceman' means a person­
(i) who has served in any rank whether as a combatant or non­combatant in the Regular Army, Navy and Air Force of the Indian Union."

12. However the Rules, 1979 were applicable for re­ employment in Central Civil Services and Posts, whereas, the petitioner has applied for recruitment for the State Civil Services for the post of Registrar Grade­II. There was no re­employment of the petitioner. The petitioner was otherwise eligible for the post as there is nothing on record to suggest that the petitioner was found ineligible. It only appears that the petitioner was not considered as Ex­Service Man and therefore, his name was not included in the final select list giving benefit of reduced marks of reserved category of Ex­Service Man.

13. The learned Assistant Government Pleader Mr.Antani has mainly relied upon the definition of Ex­Service Man as amended by the notification dated 04.10.2012 and the letter dated 27.12.2013 to point out that the Office Memorandum dated 23.11.2012 applies to the Ex­Central Armed Police Force Personnel and not to Ex­Service Man.

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C/SCA/2830/2017 ORDER DATED: 07/06/2021 It was therefore submitted that the petitioner is rightly not considered as Ex­Service Man as he was Ex­Central Armed Police Force Personnel.

14. Considering the above submissions, it appears that the respondent­State has not formed any rules for recruitment of Ex­Service Man at the relevant time and therefore mere reliance cannot be placed upon the Central Rules to apply to Recruitment to the State Civil Services. Admittedly, the petitioner has discharged the services with SSB which is a Para Military Force and as such, in absence of any rules, the respondents ought to have considered the petitioner as Ex­Service Man without relying upon the definition of the Ex­Service Man as per the notification dated 04.10.2012 issued by the Central Government.

15. The petition therefore succeeds and is accordingly, allowed. The respondents are directed to consider the case of the petitioner as Ex­Service Man for the post of Registrar Grade­II within a period of three months from the date of receipt of a copy of this order. Rule is made absolute to the aforesaid extent.

(BHARGAV D. KARIA, J) PALAK Page 7 of 7 Downloaded on : Sat Jan 15 03:47:50 IST 2022