Karnataka High Court
State Of Karnataka, By Its Secretary To ... vs K. Srinivasulu And Ors. on 7 August, 2003
Equivalent citations: ILR2003KAR4400
Bench: R.V. Raveendran, S. Abdul Nazeer
ORDER Raveendran, J.
1. All these petitions are filed challenging the common order dated 21-4-2003 of Karnataka Administrative Tribunal in Application Nos. 13785-790, 14319, 14413, 14414, 14471, 14562-564, and 14851/ 2002. They are therefore heard together and disposed of by this common order.
WP Nos. 26748. 26906-918/2003:
The respondents 1 to 14 herein were respectively the applicants in Application Nos. 13785 to 13790, 14319, 14413, 14414, 14471, 14562-564 and 14851 of 2002 on the file of the Karnataka Administrative Tribunal. Petitioners 1 to 3 were respondents in Application Nos. 13785 to 790/2002; petitioners 4, 5 & 2 were respondents in Application No. 14319/2002; petitioners 6, 1, 7 & 2 were respondents in Application No. 14413, 14414 and 14851/2002; and petitioners 1 & 2 were respondents in Application Nos. 14562-14564 and 14471/2002. The petitioners are State of Karnataka, Police Sub-Inspectors Recruitment Committee, DG & IG of Police and Director of Sainik Welfare and Resettlement.
WP Nos. 24568-572, 26028-3, 27505-516, 26775, 27550, 27845-50 of 2003:
The petitioners in these petitions were not parties to the said applications before the Tribunal. They have filed these petitions, being aggrieved by the order of the Tribunal. The applicants and respondents in the applications before Tribunal are the respondents in these petitions.
W.P. No 30173/2003:
The applicant and respondents in Application No. 14319/2002 are the petitioner and respondents in this petition.
2. The Police Sub-Inspectors Recruitment Committee ('Recruitment Committee' for short) issued a notification dated 04.09.2002, inviting applications for recruitment of 324 Police Sub-Inspectors (Civil) and 36 In-service Police Sub-Inspectors (Civil). The notification stated that the selection/appointment to the said posts will be made in accordance with Karnataka State Police Service including Ministerial Service (Recruitment) Rules, 1994 read with KCS (General Recruitment) Rules 1977 and KCS (Direct Recruitment by Selection) Rules 1973. For convenience the said Rules will henceforth be referred to as the 'Recruitment Rules', the 'General Recruitment Rules' and the 'Selection Rules'. Entry 10 of the Schedule to the Recruitment Rules prescribed the method of recruitment and minimum qualifications for the posts of PSIs. Out of the 324 notified posts, 162 posts were reserved for Schedule Castes, Schedule Tribes and other backward classes [categories I, II(A), II(a), III(a) and III(b)], the remaining 162 posts being General Merit posts. Out of the 324 posts, 29 posts were reserved for Ex-servicemen, by way of horizontal compartmental reservation. The term 'Ex-serviceman' is not defined in the Recruitment Rules. The Recruitment notification classified that the term 'Ex-serviceman' shall have the same meaning as defined in the relevant rules in force.
2.1) Such reservation in favour of Ex-servicemen is in pursuance of Rule 9 of the General Recruitment Rules which provides thus:
"9(1) Notwithstanding anything continued in the rules of recruitment specially made in respect of any service or post, if in such rules of recruitment direct recruitment is prescribed as one of the methods of recruitment, [ten percent of the vacancies set apart for the method in each of the categories of general merit, Scheduled Castes and Scheduled Tribes and in each of the categories among other backward classes shall be reserved for, and] shall be filled by direct recruitment from among ex-servicemen and members of the families of persons who, while serving in the Armed Forces of the Union, were either killed or permanently disabled."
2.2) The term 'ex-serviceman' is defined in Rule 2(1)(i) of the General Recruitment Rules. The relevant portion of the said Rule extracted below:
"Ex-serviceman" means a person, who has served in any rank (whether as a combatant or as a non combatant) in the regular a Army, Navy and Air Forces of the Union but does not include a person who has served in the Defence Security Corps, the General Reserved Engineering Force, the Lok Sahayak Sena and the Para Military Forces; and
(a) who has retired from such service after earning his person; 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 person; 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 that at his own request or by way of dismissal or discharge on account of misconduct or inefficiency and has been given a gratuity."
2.3) The Recruitment Rules and the Recruitment Notification prescribed the minimum and maximum age limit of the candidates, as follows:
"AGE Limit: Not withstanding anything contained in Rule 6(2-A) of the Karnataka Civil Services (General Recruitment) Rules 1977, must have attained the age of 21 years and not attained the age of:
(i) 26 years in case of persons belonging to Schedule Caste, Scheduled Tribes and other Backward classes,
(ii) 24 years in case of any other person, on the last date fixed for receipt of application.
Provided that in case of candidate who is an Ex-Serviceman, discharged from service by reason of demobilization, retrenchment or retirement, age shall be relaxed by number of years of military service rendered by him or up to the maximum age of 27 years, whichever is less,"
2.4) The Recruitment Rules and the Recruitment Notification also prescribed, in addition to the age limit, three other eligibility, conditions, namely (i) Educational qualification; (ii) Physical Standard and (iii) Physical Efficiency Test. The educational qualification prescribed was degree from a recognised University. The physical standards prescribed related to (a) height & chest Girth (b) vision, (c) hearing and (d) physical disqualifications. The physical efficiency tests prescribed to test the physical fitness, stamina and courage, were as follows (one star standard):
SI No:
Item Qualifying time/distance 1 100 Mtrs run 15 Sec.2
High Jump 1.20 Mtrs 3 Long Jump
3.80 Mtrs 4 Shot put (7.26 Kgs) 5.60 Mtrs 5 800 Mtrs run 2 Min 50 Sec 2.5) The candidates who met the minimum physical standards and passed through the physical efficiency tests (which were considered to be qualifying tests), were required to take a written examination consisting of two papers of degree standard. Based on the merit in the written examination, the candidates were to be required to appear before the State Level Committee for interview/ personality test carrying 7.5 marks, in the ratio of 1:3 in each group and category. The Viva Voce did not carry any minimum marks.
3. The Recruitment Rules and the Recruitment Notification prescribed a lesser level of physical efficiency tests for In-service candidates, as follows:
"To test the candidates Physical fitness, stamina and courage, Physical Efficiency test shall be as follows:
SI No. Item Qualifying time/Distance 1 100 Mtrs run 18.5 Sec.2
High Jump 0.90 Mtrs 3 Long Jump 2.50 Mtrs 4 Shot put (4 Kgs) 3.75 Mtrs 5 200 Mtrs run 40 Sec Note:
1. The physical standard will be measured by a committee and will not be considered on the basis of any medical certificate. The candidates are required to sign the prescribed Proforma regarding their physical standard in the presence of the committee after their measurements are over, failing which they will be disqualified.
2. Candidates must qualify in 3 out of 5 items of physical efficiency test. The candidates are required to sign the required proforma about their performance in physical efficiency test in presence of the committee after their test is over, failing which they are liable to be disqualified. There are no marks for Physical Efficiency test. It shall be only a qualifying test."
4. The respondents are all ex-servicemen. They were all aged between 37 to 45 years on the last date fixed for receipt of applications (7-10-2002). They have either retired from Armed Forces (Army/Navy/Air Force) after earning pension, or released from defence service on completing the specified period of engagement or released on demobilisation. In view of the upper age limit being prescribed as 27 years, they were ineligible to apply for the post of Sub-Inspector of Police, against the notification dated 4-9-2002. Therefore, they approached the Karnataka Administrative Tribunal, for the following reliefs:
(i) To strike down the outer age limit of 27 years prescribed for ex-servicemen in Entry 10 of Schedule to the Recruitment Rules, as unconstitutional and void; and to direct the State to forebear from enforcing the said provision relating said age limit for recruitment of ex-servicemen against 10% posts set apart for them:
(ii) To declare that the prescription of same physical efficiency tests lor all the candidates, thereby requiring ex-servicemen to compete with younger candidates, without providing for relaxed standard for Ex-servicemen, was illegal and void; and consequently direct the State to forebear from enforcing the same in respect of Applicants;
(iii) To direct the State to treat ex-servicemen as a separate and distinct class and make a special provision in their favour while prescribing the outer age limit for the recruitment to the post of Sub-inspectors of police by providing for relaxation by actual number of years of military service rendered plus three years and also by providing relaxation in physical efficiency test standard treating them as a separate class.
The grievance of the ex-servicemen, in their applications, was only in regard to the prescription of the upper age limit of 27 years and prescription of uniform physical efficiency tests, (without relaxation for ex-servicemen). The Applications made it clear that the challenge by them was confined to the age limit and physical efficiency tests prescribed in so far as 29 posts set apart for ex-servicemen and did not in way relate to the selection to the remaining 295 posts of PSIs.
5. The State resisted the applications. They contended that the police service is a special service, which is required to maintain law and order, maintain traffic, ensure security of the State , detect crime, collect intelligence provide security for VIPs etc.; that discipline, physical fitness and stamina are vital factors for the posts of PSIs and those factors have been kept in view while framing the Recruitment Rules and prescribing the age limit, physical standards and physical fitness levels; that neither the age limit of 27 years prescribed by the Rules nor the physical fitness levels insisted under the Rules, when considered in the context of job requirements, was arbitrary or unreasonable; that the Recruitment Rules, made in exercise of powers under the Karnataka State Civil Services Act, 1978, were statutory in nature and represented the policy of the State Government; and that they were not open to challenge and at all events Courts and Tribunals cannot sit in judgment over matters relating to mode of selection or prescription of minimum qualifications. The State also sought to justify the relaxation of physical efficiency test levels for In-service candidates (without providing a corresponding relaxation in the case of Ex-Servicemen), on the ground that In-service candidates have rich experience in police work and activities and therefore formed a distinct class.
6. However, when the applications came up for consideration before the Tribunal, the learned Counsel appearing for the State, on instructions, conceded that the upper age limit of 27 years for ex-servicemen prescribed under the Recruitment Rules was unworkable and that therefore the State would suitably amend the Recruitment Rules to effectuate the object of reservation for Ex-servicemen. Learned Counsel for the State also submitted that 29 posts reserved for Ex-servicemen category would be kept apart for future recruitment, after necessary amendment to the Recruitment Rules. In regard to physical efficiency facts, the learned Counsel for the State reiterated that having regard to the nature of employment for which recruitment was made and the duties and functions associated with the post (of Sub-inspector of Police), physical standards fixed were reasonable and were not open to challenge.
7. The Tribunal held that it is almost impossible to have Ex-Servicemen of less than 27 years of age for the posts, as normally Military Personal would have to serve a minimum period 15 years if he was in the Army, and 20 years if he was in Air Force or Navy to earn pension; and having regard to the age of entry into Armed Forces [16 to 22 years], no one below the age of 31 years in the case of Army and 36 years in the case of Air Force/Navy could become eligible, having regard to the definition of ex-servicemen and therefore the prescription of age limit of 27 years as maximum age was wholly arbitrary, irrational and absurd.
7.1) In regard to the prescription of physical efficiency norms, the Tribunal found that ex-servicemen who have already completed 15 to 20 years of service, would be normally be at least 10 years older than the other open market candidate, and they cannot be expected to fulfil the physical efficiency norms prescribed for the younger open market candidates. The tribunal, held that the application of same physical efficiency norms to younger open market candidates and elder ex-servicemen candidates would amount to treating unequals equally and therefore unfair and discriminatory.
7.2) The Tribunal did not accept the submission of the petitioners that they will keep apart the 29 posts for Ex-Servicemen and proceed with and complete the selection process in regard to the remaining 295 posts. It held that every candidate who conforms to the Recruitment Rules regarding eligibility and qualification would be entitled to stake his claim for selection in the General Merit category and if he is not selected on his merit, he can fall back upon his claim based on reservation and therefore selection process can not be separate for the 29 posts. It held that if the State is permitted to proceed with recruitment to 295 posts and make a separate recruitment in regard to 29 posts by deleting the upper age limit for ex-servicemen, the entire selection process may become vitiated. It therefore allowed the applications by order dated 21.4.2003 with the following observations:
".........The request made on behalf of the State to let them go ahead with the recruitment process after bifurcating 29 posts reserved for Ex-servicemen category to be filled up after proper rules are framed, cannot be legally sustained. If the concern of the State is to fill up the posts of Sub-Inspectors at the earliest, having regard to the nature of the service and of the obligation to keep the service filled up to the optimum for purposes of efficiency and maintenance of law and order, it would be open to the State to expeditiously amend the Rules so far as it relates to the maximum age for the category of Ex-servicemen and also prescribing separate Physical efficiency test with retrospective effect. On such amendment as aforesaid, it would be open to the respondents to call for applications only from the category of Ex-servicemen on the basis of the newly determined age limit who conform to amended standards of age limit as on the last date of receipt of the applications fixed under the Notification dated 4-9-2002. The applications so received from the category of Ex-servicemen, after the proposed amendment to the 1994 Rules, and all the applications are received from the other categories of candidates on or before the last date for receipt of applications fixed as per the Notification 4-9-2002, shall to be scrutinised and thereafter the process of a preparing the common merit list as well as the merit list of each categories has to take place. Thereafter, fresh written examination as well as physical standards and physical efficiency tests could be conducted followed by interview. This expedient would apparently minimise loss of time for completion of the selection process. This expedient, in my opinion, appears to be the only tangible solution for the apprehension raised on behalf of the State.
29. So far as the in-service candidates are concerned, they would not be affected by striking down of the upper age limit prescribed under the 1994 Rules for the category of Ex-servicemen. Ex-servicemen who are offering themselves as fresh candidates for selection to the 29 posts out of 324 posts from open market cannot be competitions for the 36 posts of Sub-Inspectors offered for the in-service candidates. So far as these 36 posts are concerned, the recruitment process can go ahead without, in any manner, being affected by striking down of the recruitment process for 324 posts sought to be filled up by selection from open market.
30. In the event of the Respondents seeking to amend the 1994 rules with retrospective effect and to continue the recruitment process initiated by the Notification dated 4-9-2002, it should be possible for the Government, if it acts expeditiously, to complete the selection process within a maximum period of six months from this day. Necessarily the choice of the expedient is with the respondents.
31. In these circumstances, the following order is made:
(a) The following provision of the Karnataka State Police Service including Ministerial Services (Recruitment) Rules 1994 is declared as violative of Articles 14 and 16 of the Constitution and shall have to be replaced by suitable rule to effectuate the object of reservation for the Ex-servicemen category:
..."Provided that in the case of candidate who is an Ex-servicemen discharged from service by reason of demobilisation, retrenchment or retirement will be relaxed by the number of years of Military Service rendered by him or up to the age of twenty seven years, whichever is less."
(b) The respondents are directed to lay down separately the physical efficiency test for Ex-servicemen taking into consideration their age which should necessarily be more than 30 years;
(c) The recruitment notified under the Notification dated 4-9-2002 cannot be proceeded with without amendment of the age limit prescribed for the category of Ex-servicemen and laying down a separate physical efficiency test for the category of Ex-servicemen.
8. Feeling aggrieved, State and its Authorities, who were the respondents in the Applications before the Tribunal have filed these petitions seeking a declaration that the directions in para 31(b) &(c) of the order of the Tribunal dated 21-4-2003 as illegal and unsustainable.
9. Some candidates (non Ex-servicemen) who had applied against the remaining 295 posts have filed W.P. Nos. 24568-572, 26028-32, 26775, 27505-516, 27550, 28854 to 28866, and 27845-50 of 2003 being aggrieved by the direction of the Tribunal to hold fresh selection process in regard to all 324 posts. They have sought a direction to the State and its Authorities to proceed with and conclude the process of recruitment in respect of 295 posts. Their prayer in effect is the same as the prayer in W.P. Nos. 26748, 26906-918/2003 filed by the State.
10. One of the Ex-servicemen-applicants before the Tribunal has filed W.P. No. 30173/2003 for quashing the order of the Tribunal to the extent it holds that recruitment cannot be proceeded with under the Notification dated 4-9-2002 and directs fresh recruitment process for 29 posts after amendment to Rules. Instead, he seeks a direction to the State to proceed with the present recruitment process and consider the Ex-servicemen under the present recruitment Notification dated 4-9-2002, by ignoring the offending portion of the proviso relating to age limit and by applying the relaxed physical fitness levels to Ex-servicemen. He contends, that the required result can be achieved by striking down the words "or up to the age of 27 years whichever is less" in the Recruitment Rules and the corresponding provision in the recruitment notification dated 4-9-2002.
11. Initially we made the following interim order on 9-6-2003 in W.P.No. 26028-32/2003 "In view of the above, there shall be an interim stay of the direction contained in para 31(c) of the order dated 21-4-2003 passed by the Karnataka Administrative Tribunal, Bangalore in Application No. 13785-50 of 2002 and connected cases, in so far as it seeks to prohibit the further process for filling up of 295 non-ex-servicemen posts. As a consequence of such stay:
(i) The State will be at liberty to complete the selection process under the notification dated 4-9-2002 in regard to 295 non-ex-servicemen posts (i.e., notified 324 posts less 29 posts reserved for ex-servicemen) and take all further steps subject however to the condition that inter-se seniority between non ex-servicemen candidates to be selected, and ex-servicemen candidates to be selected, will be subject to the final decision in these Writ Petitions.
(ii) The directions contained in para 31(a) to (c) of the order of the Tribunal will fully operate in so far as the posts earmarked for Ex-servicemen."
The said interim order was reiterated by interim order, dated 10-6-2003 in W.P. Nos. 26748 & 26906-18/2003 filed by the State. Subsequently at the instance of some of the respondents (applicants before the Tribunal), the said order was modified on 2-7-2003 as follows:
(i) The applicants before the Tribunal in A.Nos. 13785-790/2002, 14319/2002, 14413/2002, 14414/2002, 14471/2002, 14562-564/ 2002 & 14851/2002 who have passed the written test shall be called for viva-voce subject to their fulfilling the following:
(a) If they are within the age limit after relaxing the maximum prescribed age limit, by the number of years of military service.
(b) If they meet the physical standards and physical efficiency tests prescribed for in-service candidates.
(ii) If successful in the viva-voce, they shall be placed in the select list, subject to the final result in these petitions.
(iii) Compliance within two months from the date of receipt of this order.
By further interim order dated 21-7-2003 direction (ii) in the order dated 9-6-2003 was made subject to the directions in the subsequent order dated 2-7-2003.
12. On the contentions urged, following questions arise for consideration:
(i) Whether the decision of the Tribunal that "the recruitment under the notification dated 4-9-2002 cannot be proceeded with, without amendment of the age limit prescribed for the ex-servicemen category and laying down a separate physical efficiency test for Ex-servicemen" calls for interference?
(ii) Whether the recruitment in regard to 295 posts (that is 324 posts notified, minus 29 posts reserved for Ex-servicemen) can be proceeded with even if the relevant portion of the Recruitment Rules and consequential Recruitment Notification is found to be defective or invalid in regard to Ex-servicemen?
(iii) Whether the recruitment process under the notification dated 4-9-2002 can be proceeded with, by quashing the words "or upto the age of 27 years, whichever is less" occurring at the end of the proviso to the clause relating to age limit in Entry No. 10 of the schedule to the Recruitment Rules?
Re: Point No. (i) (iii)
13. As the State conceded before the Tribunal that prescription of upper age limit of 27 years in entry No. 10 of the Recruitment Rules is unworkable, the Tribunal did not consider the contention that the entire provision could be saved by separating the invalid part of the said provision namely "or up to the age of 27 years whichever is less". It however noticed the contention in para 16 of its order. It held that the age limit of 27 years will make it impossible for any Ex-servicemen to apply for the posts of PSIs. Having regard to the fact that claim of the applicants before the Tribunal was virtually conceded by the State in so far as upper age limit is concerned, the Tribunal should have first considered whether the existing provision could be saved by proper interpretative process instead of declaring the entire proviso as invalid and directing fresh process of recruitment.
14. Entry 10 prescribes the following three different age limits:
(a) 26 years in the case of Scheduled Castes/Scheduled Tribes and Backward classes.
(b) 24 years in the case of other candidates (except Ex-servicemen).
(c) 24 years plus number of years of military service rendered, in the case of Ex-servicemen who had been discharged from service by reason of demobilisation , retrenchment or retirement, subject to a maximum of 27 years.
(Note: There is no separate age limit for Ex-servicemen. The age Limit prescribes for Scheduled Caste/Scheduled Tribe and backward classes and for General merit candidates is subjected to a proviso that in the case of candidates who are ex-servicemen discharged from service by reason of demobilisation, retrenchment or retirement, the age limit will be relaxed by number of years of military service rendered by him or up to the age of 27 years, whichever is less.)
15. Karnataka Civil Service (General Recruitment) Rules, 1977 applies to regular recruitment to all State Services except to the extent otherwise expressly provided by or under any law for the time being in force vide Rule 1(3). But, the proviso thereto makes it clear that provisions of Rule 9(1) and certain other rules in the General Recruitment Rules shall have effect, notwithstanding anything inconsistent contained in the Rules of recruitment specially made in respect of any service or post. Rule 9(1) as noticed above, requires setting apart 10% of the vacancies in direct recruitment for Ex-servicemen, by way of horizontal reservation, that is in each of the categories of General Merit, Scheduled Castes and Scheduled Tribes and in each of the categories among other backward classes.
16. Karnataka State Police Services including Ministerial Service (Recruitment) Rules, 1994 are rules of recruitment specially made in respect of State Police Services. Having regard to the proviso to Rule 1(3) of General Recruitment Rules, the Police Recruitment Rules will have to be read subject to Rule 9(1) of the General Recruitment Rules. Therefore, reservation of 10% posts for Ex-servicemen by way of horizontal reservation as per Rule 9(1) is mandatory even in regard to recruitments under the Karnataka State Police Services including Ministerial Service (Recruitment) Rules, 1994. The definition of the term 'Ex-servicemen' shows that the said horizontal reservation of 10% is intended mainly to those Armed Service Personnel who have either retired after earning pension or released after completing the specific period of engagement otherwise than at their own request (Note: some other categories, like those who have been released otherwise than on their own request as a result of reduction of establishment are also included, but reference there to is not necessary as their number is negligible). Entry 10 in the Recruitment Rules also reiterates that relaxation of age limit is only to those Ex-servicemen who have been discharged for service for reason of retirement demobilisation or retrenchment.
17. All and sundry Ex-servicemen are not entitled to the benefit of horizontal reservation provided under Rule 9(1) of General Recruitment Rules. Persons who have served in Defence Security Corps or Paramilitary Forces are not entitled to claim the benefit of reservation for Ex-servicemen. Armed forces Personnel who leaves voluntarily before completing specific period of engagement or who are released on their own request, are not entitled to claim the benefit of reservation of Ex-servicemen. Persons who are dismissed or discharged on account of misconduct are not entitled to claim the benefit of reservation for Ex-servicemen. It is only 'Ex-servicemen' as defined, that is those who have served in the Army, Air Force or Navy and who have retired by earning pension, or by being released after the specific minimum period of service or by being released as a result of reduction of establishment, are entitled to benefit of reservation under the category of Ex-servicemen. It is agreed that the age of recruitment in the Army, Air Force and navy is 16 to 22 and the minimum service to be rendered for retirement/release is 15 years in the case of Army and 20 years in the case of Air Force and Navy. If that is so, the minimum age at which an Ex-servicemen will be able to join the State service, is 31 to 37 years in the case of Ex-servicemen from Army, and 36 to 43 years in the case of Ex-servicemen from Air Force and Navy. If a person joins the Armed Forces at the age of 22 years, he would have completed 37 years of age in the case of Ex-Army men and 42 years of age in the case of Ex-Air Force/Navy men, when he is released/retires from service. Therefore, the first part of the proviso dealing with Ex-servicemen stating that age limit will be relaxed by the number of years of military service, is perfectly in consonance with the spirit, intention and object behind Rule 9(1) of the General Recruitment Rules. But, the second part of the proviso which puts a ceiling on the age limit (of 27 years) for Ex-servicemen completely negates and defeats the object and intention of Rule 9(1) of General Recruitment Rules which requires reservation of 10% of the posts for Ex-servicemen. The benefit that is extended to the Ex-servicemen by the first part of the proviso is taken away by the second part of the proviso, that is, by the words "or up to the age of 27 years whichever is less". It is impossible for a 27 year old person to be an 'Ex-serviceman who has retired from service after earning his pension' or an 'Ex-servicemen who has been released from service after the specific period of engagement otherwise than at his own request'. In view of the words "or upto the age of 27 years which ever is less", no Ex-servicemen can offer himself as a candidate for direct recruitment for the post of Sub-Inspector. The words "or upto the age of 27 years whichever is less" make it impossible for any Ex-servicemen to apply for the post of PSI thereby negating Rule 9(1) of General Recruitment Rules Providing 10% reservation for Ex-servicemen. The proviso to Rule 1(3) of General Recruitment Rules provides that Rules 9(1) of General Recruitment Rules shall have effect notwithstanding anything inconsistent therewith contained in the Special Recruitment Rules. In view of the clear and apparent inconsistency between the later part of the proviso in Entry 10 of the Special Recruitment Rules with Rule 9(1) of the General Recruitment Rules, the later part of the said proviso, that is, the words "or up to the age of 27 years, whichever is less" should be held to be invalid and ineffective and consequently ignored. As a result the proviso to age limit provision in the Entry 10 of the Rules and Recruitment notification should be read thus:
"Provided that in case of candidates who is an Ex-servicemen, discharged from service by reason of demobilisation, retrenchment or retirement, age shall be relaxed by number of years of military service rendered by him"
18. The following observations of the Supreme Court in S.PRAKASH v. K.M. KURIAN made in the context of a slightly different situation (where General Rules were made after the Special Rules) may usefully be referred in this context:
".....From the consideration of the general enactment, if the intention of the Legislature was to establish a rule of universal application, in such cases a special provision must give way to the general provision......it is clear that if the intention of the rule making authority was to establish a rule of universal application to all the services in the State, for which special Rules are made, then special Rules will give way to the general Rules enacted for that purpose........It is also well settled that special rule can be altered, abrogated or replaced by general Rule by an express provision."
The State fairly conceded before the Tribunal that the proviso as it stands, is unworkable. When that was so, the expedient method of dealing with the matter was to omit the offending portion so that the proviso became workable. As noticed above, if the words "or up to the age of 27 years, whichever is less" is omitted/deleted, then, the proviso is workable and Ex-servicemen candidate will be entitled to seek relaxation of the upper age limit by the number of years of military service rendered by him.
19. It is also of some interest, though not directly relevant, to note that such relaxation in age is made for recruitment to almost all services. The General recruitment rules contemplates enhancement of age limit for appointment in the case of Ex-servicemen candidates by "three years plus number of years of service rendered by him in the Armed Forces of the Union". Similarly, under the rules governing recruitment to posts of Sub-Inspector in the Central Police Organisations (that is BSF, CISF, CRPF, CRPF, ITPB and SSB) the age concession for Ex-servicemen is allowed by providing that a Ex-servicemen will be eligible, if on deducting the period of military service from the actual age of the candidate, the resultant age does not exceed the prescribed age by more than three years. We have referred to the above only to show that in so far as Ex-servicemen are concerned, normal and uniform rule is to give age relaxation by number of years of service rendered in the Armed Forces plus three years. We should not be understood as holding that the State can not prescribe a different age limit under any Special Recruitment Rules. All that we were trying to point out is, if the offending portion of the proviso which is invalid is removed, the remaining portion of the rule makes sense and is workable and can stand by itself.
20. It is now will settled that where a part of a provision is found to be invalid or void, and the remaining portion is inextricably bound up with the part found invalid, then the remaining portion cannot independently survive. But, where the part declared invalid or void can conveniently be separated and deleted, it is not inextricably bound with the remaining portion; and therefore the remaining portion of the provision can independently survive - vide STATE OF BOMBAY v. F.N. BALSARA AIR 1951 SC 318 MAHENDRA LAL JAINI v. STATE OF U.P. AIR 1963 SC 1990 HARAKCHAND RATANCHAND BANTHIA v. UNION OF INDIA . Therefore, the words, "or upto the age of 27 years whichever is less" in the Special Recruitment Rules, which are invalid on account of the inconsistently with Rule 9(1) read with the proviso to Rule 1(3) of the General Recruitment Rules, can be omitted. The State may by any subsequent rules or by amendment to the existing rules, modify the provision relating to age limit. Age limit can certainly be inserted by the State so long as it does not negate the provisions of Rule 9(1) of the General Recruitment Rules. In regard to the recruitment under the notification dated 4-9-2002, reading of the proviso in Entry 10 of the Special Recruitment Rules, without the offending words would serve the purpose. We hold accordingly.
21. Entry 10 requires the candidates to pass certain physical efficiency levels. Different physical efficiency levels are prescribed for direct recruitment candidates and for In-service candidates. That is, the level of physical efficiency test prescribed for In-service candidates for whom the age limit is 35 to 40 years, is considerably less than the physical efficiency levels prescribed for regular open market candidates, for whom the age limit is 26 years. Rules therefore disclose a clear intention that where age limit exceeds 35, lesser levels of physical efficiency tests will have to be applied. When we read the Age limit provision relating to Ex-servicemen by omitting the words "or up to the age of 27 years whichever is less", the consequence is that the age limit gets extended to the range of 36 to 42 years. It necessarily follows that the physical efficiency tests to undergone by the candidates of such higher age groups will have to be that of the lesser levels prescribed by the rules in regard to candidates in the age group of 35-40 years (that is In-service candidates). It is of some relevance to note that in the amendment to the Special Recruitment Rules, in pursuance of the order of the Tribunal (vide Notification dated 30-5-2003), the State itself has provided the lesser physical efficiency tests, equivalent to those of in-service candidates, for Ex-servicemen. Therefore, we hold that for Ex-servicemen, the physical efficiency tests to be applied in respect of the recruitment notification dated 4-9-2002, is the lesser physical efficiency tests prescribed for the higher age group candidates (that is In-service candidate).
Re: Point No. (ii)
22. We have already permitted the State to proceed with the recruitment to the 295 non-Ex-Servicemen Posts. The tribunal thought that by permitting the recruitment process to proceed in the case of 295 posts, after separating 29 Ex-servicemen posts, Ex-servicemen will be denied the opportunity of being considered for appointment against the 295 posts. But, there is no basis for such assumption. No Ex-servicemen can offer himself as a candidate in regard to the 295 posts, as the maximum age limit for such candidates is 26 years, and any eligible Ex-servicemen will not be aged less than 31 years. There is therefore no impediment for separating the recruitment process for 29 posts, provided inter-se seniority among the persons selected to 295 posts and persons selected to 29 posts is maintained. Therefore, State will be at liberty to complete the selection process under the notification dated 4-9-2002 in regard to 295 non-Ex-servicemen posts separately and then complete the selection process in regard to 29 posts reserved for Ex-servicemen.
Conclusion:
23. Some of the Ex-servicemen who are applicants in applications disposed of by the Tribunal subsequent to 21-4-2003 have made applications for impleading. They are not necessary parties to these petitions. Their counsel have however been heard.
24. In the result we allow these petitions in part as follows, moulding the relief suitably:
i) The proviso to the clause relating to age limit in Entry-10 of Schedule to the Karnataka State Police Service Including Ministerial Service (Recruitment) Rules, 1994, is read down as follows (by omitting the words "or upto the maximum age of 27 years, which is less" occurring at the end of the clause):
Provided that in the case of a candidate who is an ex-serviceman, discharged from service by reason of demobilization, retrenchment or retirement, (age limit) will be relaxed by the number of years of military service rendered by him"
ii) In regard to candidates who have applied against the 29 posts reserved for ex-servicemen, the lower level of physical efficiency tests prescribed under the Rules for persons in the age group of 35-40 [In-service candidates] shall be applied.
iii) Ex-servicemen candidates who have applied against 29 posts reserved for ex-servicemen, shall therefore be considered by relaxing the age limit as per para (i) above, and relaxing the physical efficiency test, as per para (ii) above, in regard to recruitment Notification dated 4-9-2002.
iv) The Interim order dated 9-6-2003, permitting the State PSI Recruitment Committee to proceed with and complete the selection process under the Notification dated 4-9-2002 in regard to 295 non-ex-servicemen posts and the interim order dated 2-7-2003 directing the State PSI Recruitment Committee to proceed with and consider the case of the applicants before the Tribunal, are reiterated and affirmed.
v) The inter se seniority between candidates selected against the 295 non-Ex-servicemen posts, and the 29 Ex-servicemen posts shall be maintained by preparing a single consolidated selection list in the order of merit for all the 324 posts, as they are recruited under the same recruitment Notification dated 4-9-2002.
vi) Nothing stated in our order shall be construed as expression of any opinion in regard to the validity of Karnataka State Police Service including Ministerial Services (Recruitment) (Amendment) Rules, 2003, made as per Notification dated 30-5-2003 published in the Gazette dated 30-5-2003.
vii) The applications for impleading filed by same Ex-servicemen (who were applicants in subsequent Applications before the Tribunal) are rejected.
viii) Parties to bear their respective costs.