Allahabad High Court
Sanjay Batra vs State Of U.P.Throu.Prin.Secy.Energy ... on 10 March, 2015
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 23 Case :- SERVICE SINGLE No. - 460 of 2014 Petitioner :- Sanjay Batra Respondent :- State Of U.P.Throu.Prin.Secy.Energy Deptt.Lko.And Ors. Counsel for Petitioner :- Vishal Kumar Upadhyay,Anoop Kumar Bajpai Counsel for Respondent :- C.S.C.,Amit Kr. Singh Bhadauriya,Subhash Vidyarthi Hon'ble Pankaj Mithal,J.
Petitioner was appointed in the Air Force on 10.05.1994. He was scheduled to be discharged from service after completion of 20 years of service w.e.f. 31.05.2014. Petitioner successfully underwent training for the award of diploma in Electronics Engineering from C.T.I. Banglore. He was issued a provisional certificate in this regard on 10.01.2014 by the Group Captain Commanding Officer, Air Force certifying that Indian Air Force Trade Radio is recognized as diploma in Electronics Engineering for recruitment to subordinate posts and services under Central Government in view of the notification dated 22.07.1977 of the Government of India Ministry of Education and Social Welfare (Department of Education) and that the aforesaid diploma plus 10 years of technical experience in the appropriate field is recognized as equivalent to a decree in Engineering vide notification dated 26.05.1977 of the Government of India Ministry of Education and Social Welfare (Department of Education). The petitioner was issued a certificate of Diploma in Electronics and Radio Communication Engineering by the Indian Air Force.
U.P. Power Corporation Ltd. Lucknow issued an advertisement No.05/VSA/2013 inviting online applications from eligible Indian Nationals for direct recruitment to the post of Junior Engineer (Trainee) Electronics.
The advertisement clearly stipulated that the last date for registration of application would be 28.10.2013 and the probable date of examination would be 16.11.2013/17.11.2013.
The advertisement further provided for relaxation in upper age limit to the Ex-Servicemen, who had served a minimum of 5 years in Armed Forces of India and for horizontal reservation for Ex-Servicemen.
The petitioner in pursuance of the above advertisement applied online and he was called for written examination. He appeared in the written examination but thereafter he was orally told he is not eligible for the post. It is in this background that the petitioner has preferred this writ petition for issuing a direction to the respondents to allow him to participate in the interview to be held on 17.01.2014 for the post of Junior Engineer (Trainee) Electronics as an Ex-Servicemen by treating the Diploma which he holds as equivalent to the Diploma envisaged in the advertisement.
The court on 06.03.2014 as an interim measure had directed for keeping one post reserved for the petitioner pending the writ petition.
In view of the above interim order, though the interviews scheduled to be held on 17.1.2014 are over but as one post has been kept reserved to accommodate the petitioner, it is considered appropriate to decide the petition on merits.
I have heard Sri Vishal Kumar Upadhyay, learned counsel for the petitioner and Sri Subhash Vidyarthi, learned counsel appearing for the respondents No. 2 and 3. Learned Standing Counsel has appeared for respondent No.1.
On respective submissions of the parties only two points arise for consideration in this petition as under:-
(i) Whether the petitioner is an Ex-Serviceman; and
(ii) Whether the Diploma in Electronics Engineering and Radio Communication of the Indian Air Force held by the petitioner is equivalent to the essential qualifications of Diploma as provided in the advertisement.
Point-1:- Whether petitioner is an Ex-Serviceman?
The petitioner in paragraph 3 of the writ petition has pleaded that he was appointed in the Indian Air Force on 10.05.1994 and is scheduled to be discharged from service on 31.05.2014. It means he was in active service of the Air Force at the time of last date of submission of application i.e.28.10.2013. Therefore, when he was in active service he cannot be regarded as an Ex-Serviceman.
The U.P. (Reservation of Vacancies for Ex-Servicemen in Class-III and Class-IV Services and Posts) Rules, 1973 defines Ex-Servicemen under Section 2(c) of the Rules as under:-
"2(c) Ex-Serviceman means a person who had served in any rank (whether as a combatant or non-combatant) in the Armed Forces of the Union for a continuous period of not less than six months, and
(i) has been released otherwise than 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 as aforesaid."
The said Rules were to remain in force for a period of three years from the date of their commencement. The date of their commencement has neither come on record nor has been informed to the court. However, the said Rules are of no relevance as in the meantime the U.P. (Reservation of Vacancies for Ex-Servicemen in Class-III and Class-IV now Group-C and Group-D Services and Posts) Rules, 1977 were enforced w.e.f. 06.08.1976 which were to remain in force only for a period of five years vide Rule 1(3) of the Rules.
The Rules of 1977 defines Ex-Serviceman vide Section 2(c) as under:-
"2(c) Ex-Serviceman means a person who had served in any rank (whether as a combatant or non-combatant) in the Armed Forces of the Union for a continuous period of not less than six months, and
(i) has been released, otherwise than by was of dismissal or discharge on account of misconduct or inefficiency, or has been transferred to the reserve pending such released, 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 as aforesaid."
The definition of Ex-Serviceman as contained in both the Rules is substantially the same and it prescribes that a person who had served in any rank in the Armed Forces of the Union for a continuous period of not less than 6 months and (i) who has been released otherwise than by way of dismissal or discharge or (ii) who has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released would be an Ex-Serviceman.
In simple words a person who has served in the Armed Forces in any capacity for a continuous period of six months and who has been released otherwise than by way of dismissal or discharge and has not to serve for more than six months before release would be an Ex-Serviceman.
Thereafter, the Government Order was issued on 03.10.1990 defining Ex-Servicemen stating therein that the Rules of 1977 are redundant and the Government of India vide office order dated 14.04.1987 has required to redefine Ex-Servicemen.
The aforesaid Government Order defines Ex-Servicemen as under:-
"2. vr% lE;d fopkjksijkUr Hkkjr ljdkj dh iqujhf{kr ifjHkk"kk ds vk/kkj ij 'kklu us HkwriwoZ lSfudksa dh fuEu ifjHkk"kk fu/kkZfjr dh gS%& ÞHkwriwoZ lSfudß dk rkRi;Z ml O;fDr ls gS ftlus la?k dh fu;fer 'k'kL= lsuk ¼Fky] ty ,oa uHk½ esa fdlh dksfV ¼jSad½ esa pkgsa ;ks"kd ds :i esa vFkok vuk;ks"kd ds :i esa lsok dh gks vkSj (1) tks viuh isa'ku vftZr djus ds i'pkr ,slh lsok ls lsokfuo`r gqvk gks] ;k (2) tks fpfdRlh; vk/kkj ij (on medical grounds) tSlk fd lSU; lsok ds fy, visf{kr ,slh lsok ls fueqZDr fd;k x;k gks] ;k ,slh ifjfLFkfr;ksa] tks mlds fu;a=.k esa ls ckgj gks] ds dkj.k fueqZDr fd;k x;k gks rFkk ftls fpfdRlh; ;k vU; v;ksX;rk isa'ku nh x;h gks] ;k (3) tks ,slh lSU; lsok ds vf/k"Bku esa deh fd;s tkus ds QyLo:i] viuh Lo;a dh izkFkZuk ds fcuk (otherwise than on his own request) fueqZDr fd;s x;s gks] ;k (4) tks fof'k"V fu/kkZfjr vof/k iw.kZ djus ds i'pkr ,slh lsok ls fueqZDr fd;k x;k gks ¼fdUrq tks viuh Lo;a dh izkFkZuk ij fueqZDr ;k nqjkpj.k vFkok vn{krk ds dkj.k inP;qr ;k lsokUeqDr u fd;k x;k gks½ vkSj ftls xzsP;qVh iznku dh x;h gks rFkk buesa VsjhVksfj;y vkehZ ds fuEufyf[kr Js.kh ds O;fDr Hkh lfEefyr gksaxs%& ¼d½ fujUrj laxfBr ¼,EckMhM½ lsok ds fy, isa'ku izkIr djus okys O;fDr] ¼[k½ lSU; lsok ds dkj.k fpfdRlh; vis{kkvksa esa v;ksX; O;fDr] vkSj ¼x½ ohjrk vuqrks"k ¼xSysUVjh ,okMZ½ izkIr djus okys O;fDrA"
According to this definition a person who has served in the Armed Forces whether as a combatant or non-combatant and
(i) who has retired after earning pension; or
(ii) who has been released on medical ground or on any ground beyond his control with medical and disability pension; or
(iii) who has been released from service otherwise than on his own request; or
(iv) who has been released from services on completion of a specified period of service and is entitle to gratuity, is an ex-serviceman.
There is no other law of the State which defines an ex-servicemen.
The petitioner undoubtedly had served the Armed Forces but he was not released therefrom on any of the grounds as enumerated above. He was to complete his specified period of 20 years in service on 31.05.2014. On the date of applying for the post he was in service of the Armed Forces. Therefore, a person who was in service of the Armed Force and had not retired/released or discharged would not be treated as an Ex-Serviceman according to the definition of Ex-Servicemen contained in the Government Order dated 03.10.1990.
The submission of learned counsel for the petitioner is that the Government of India had issued a notification dated 27.10.1986 wherein after defining Ex-Servicemen it has been provided that a person serving in the Armed Force of the Union may be permitted to apply for re-employment one year before the completion of the specified term of engagement and avail all concessions available to Ex-Servicemen.
I have perused the above notification.
The said notification has been issued in exercise of powers under Article 309 of the Constitution so as to amend the Ex-Servicemen (Re-employment in Central Services and Post) Rules, 1979.
A plain reading of the aforesaid notification reveals that the aforesaid notification is only for the purposes of amending the Rules of 1979 which are applicable for employment in central services only. The said Rules are not applicable for any recruitment which has to be carried out by the State of U.P. or U.P. Power Corporation.
In view of above, the said notification has no effect upon the recruitment which have been advertised by the U.P. Power Corporation. The petitioner is not an ex-serviceman as per the definition of Ex-Servicemen contained in the Government Order dated 03.10.1990 issued by the State Government which alone is relevant for the purposes of employment of Ex-Servicemen of services in the State of U.P. or a Corporation of the State.
Learned counsel for the petitioner in this connection has placed reliance upon a Division Bench decision of this court in the case of Markandey Rai Vs. State of U.P. and others (1998) 3 UPLBEC 1855.
The aforesaid decision had permitted the petitioner therein to appear as an Ex-Serviceman in the U.P. Nyaik Sewa even before his retirement or release from the Armed Forces.
The aforesaid decision does not deal with the definition of ex-servicemen or the 1973 or 1977 Rules or even the Government Order dated 03.10.1990 which clearly defines Ex-Servicemen. It only accords the petitioner therein the benefit of ex-servicemen on the touchstone of Article 14 and 16 of the Constitution of India without considering as to whether the petitioner therein was covered within the meaning of ex-servicemen.
In view of above, the said decision is of no assistance to the petitioner.
Point-2:- Whether the Diploma held by the petitioner satisfies the requirement of advertisement?
The advertisement lays down the essential qualification for the candidates applying to the aforesaid post as under:-
(i) Three years Diploma examination in Electrical Engineering/ Electronics Engineering/ Telecommunication Engineering/ Civil Engineering awarded by Pravidhik Shiksha Parishad, Uttar Pradesh or a Diploma, equivalent thereto, recognized by the State Government, or
(ii) Three years All India Diploma Examination in Electrical Engineering/ Electronics Engineering/ Telecommunication Engineering/ Civil Engineering conducted by the All India Council for Technical Education (AICTE), or
(iii) Diploma Examination in Electrical Engineering/ Electronics Engineering/ Telecommunication Engineering/ Civil Engineering conducted by any of the Universities in India incorporated by an Act of the Central/ State legislature.
It may be noted that the petitioner is holding a Diploma in Electronics Radio Communication Engineering which he did from Communication Training Institute (C.T.I.) Banglore. The said Diploma certificate has been issued to him by the Indian Air Force. The duration of the said Diploma course as stated in the certificate is two years i.e.1994-96.
In view of the aforesaid certificate it is clear that petitioner is not holding any Diploma of three years which has been issued either by the Pravidhik Shiksha Parishad, or All India Council for Technical Education or any Central or State University. Therefore, the petitioner is not holding a Diploma as envisaged in the advertisement as the minimum qualification for eligibility.
In the above circumstances, the only thing which is required to be seen is whether the Diploma which the petitioner is holding is equivalent to the Three Years Diploma awarded by the Pravidhik Shiksha Parishad,Uttar Pradesh.
In this connection, it is important to note that the Diploma which the petitioner is holding is of only two years duration and is not of three years. Secondly, there is nothing on record to establish that it has been recognized by the State of U.P. or any other authority equivalent to Three years Diploma examination in Electrical Engineering/ Electronics Engineering/ Telecommunication Engineering/ Civil Engineering awarded by Pravidhik Shiksha Parishad, Uttar Pradesh rather annexure-3 to the counter affidavit which is letter dated 14.10.2011 addressed by the Secretary Pravidhik Shiksha Parishad, Lucknow to the Secretary U.P. Power Corporation on the query made with regard to the similar certificates states that course in respect whereof certificates have been issued are not of three years, the same cannot be regarded as equivalent to the Three year Diploma certificate prescribed as the essential qualification under the advertisement.
The recognition to any Diploma as equivalent to Three Years Diploma in the desired subject awarded by Pravidhik Shiksha Parishad has to be by the State of U.P. There is no material to show that the State of U.P. has recognized the Diploma held by the petitioner as equivalent to the Three Years Diploma in the concern subject of the Pravidhik Shiksha Parishad.
Learned counsel for the petitioner has placed strong reliance upon the letter of the Secretary to the Government of India dated 31.12.1999 addressed to the Joint Director Directorate Ex-Service Welfare, Chennai which states that the Government of India have recognized the certificate in the Trade of Radio Fitter which is made equivalent to Diploma in Radio/ Electronics and Communication Engineering for the purposes of employment and as such a requesting to recognize it as equivalent to Diploma in Electronics/ Radio Communication Engineering. The said letter do recognize the Diploma certificate in Radio Fitter as equivalent to Diploma in Radio/ Electronics and Communication Engineering but this recognition is only by the Government of India and not by the Government of U.P. The requirement of equivalency has to be by the State Government.
In view of the aforesaid facts and circumstances, I am of the opinion that the petitioner is neither an Ex-Serviceman nor is holding a requisite Diploma as required under the advertisement and that the Diploma which he is holding is not recognized by the State of U.P. to be equivalent to the Three Years Diploma awarded by Pravidhik Shiksha Parishad, U.P. Accordingly, petitioner is neither entitle to the benefit of an ex-serviceman nor is qualified for the post in question as advertised. Thus, the respondents have rightly declined to accept him for interview.
The writ petition is devoid of merit and is accordingly dismissed with no orders as to costs.
Order Date :- 10.3.2015 piyush