Madras High Court
Ex.Lac Sivan Nainar (711357 R) vs Union Of India on 8 June, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.21328 of 2008 and 17657 of 2009 and M.P.NOs.1 OF 2008 and 1 of 2009 Ex.LAC Sivan Nainar (711357 R) .. Petitioner in both petitions Vs. 1.Union of India, represented by Secretary to Government, Ministry of Defence, New Delhi. 2.Air Officer Commanding Air Force Record Office, Subrato Park, New Delhi-110 010. 3.The Commanding Officer, No.7, Air Force Hospital, Nathusing Road, Kanpur Cantonment, Uttarpradesh State. 4.The Senior General Manager, Heavy Vehicles Factory, Avadi, Chennai-600 054. .. Respondents in W.P.No.21328/2008 1.The Director, Directorate General Ordinance Factory Board Road, 10-A, S.K.Bose Road, Kolkatta-700 001. 2.The Senior General Manager, Heavy Vehicles Factory, Avadi, Chennai-600 054. .. Respondents in W.P.No.17657/2009 W.P.No.21328 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records from the third respondent relating to the impugned order bearing No.AFRO Signal No.PRD/67 dated 25.3.97, quash the same and to direct the respondents to provide the petitioner alternative employment with pay protection and other benefits as per the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995. W.P.No.17657 of 2009 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the records from second respondent relating to the impugned order bearing No.1(1) ESTT/2005/NIE-DR/ACCS, Heavy Vehicles Factory, Chennai-54 dated 9.1.2007 and to quash the same and to direct the respondents to reinstate the petitioner in service with continuity of service and other service benefits. For Petitioner : Mr.S.Ayyathurai For Respondents : Mr.M.Damodaran for R4 in W.P.No.21328 of 2008 Mr.R.Priyakumar, CGSC for R1 in W.P.No.17657 of 2009 - - - - COMMON ORDER
Heard the arguments of Mr.S.Ayyathurai, learned counsel appearing for the petitioner, Mr.M.Dhamodaran, learned counsel for fourth respondent in W.P.No.21328 of 2008 and Mr.R.Priyakumar, learned Central Government Standing Counsel appearing for first respondent in WP.No.17657 of 2009.
2.The petitioner in both writ petitions is one and the same. In the first writ petition (W.P.No.21328 of 2008), the petitioner seeks to challenge the order of discharge, dated 25.3.1997 and seeks for a direction in terms of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short Disabilities Act).
3.It is seen from the affidavit filed in support of the writ petition that the petitioner was discharged from the Indian Air Force on medical grounds. The petitioner after his discharge made an application to the post of Assistant Cashier-cum-Supervisor in the Heavy Vehicles Factory at Avadi under the Ex-serviceman category. But, however for reasons best known, he has now come forward to challenge his original discharge made on medical grounds in terms of Section 47 of the Disabilities Act. Notice was given in this writ petition. Subsequent to the filing of the said writ petition, the petitioner has filed the second writ petition being W.P.No.17657 of 2009 seeking to challenge the order dated 9.1.2007 passed by the Heavy Vehicles Factory, wherein and by which he was terminated during his probation on the ground that he was not eligible for age relaxation in the category of an Ex-serviceman. His appointment was terminated in terms of para 2(c) and para 8 of the order of appointment, vide impugned order, dated 9.1.2007. That writ petition was admitted on 31.8.2009.
4.On notice from this court, the respondents have filed a counter affidavit in the first writ petition. In the counter affidavit filed by respondents 1 to 3, it was stated that the petitioner had effective Psychosis at the rate of 70% which disabled him to perform Air Force service. He also filed appeals to the Defence Minister's Appellate Committee and the Ministry of Defence. Those appeals were also rejected. When he applied for a disability pension, he was informed that since disability did not arise out of his service, he was not eligible to get that pension. Though it was stated that 1995 Act was in force at the time when the petitioner was discharged, but subsequently in 2002, the Act has been exempted.
5.In respect of the first writ petition, there are no reasons stated by the petitioner as to why he had come forward to challenge the order after a period of 11 years from the date of discharge. Subsequent to the discharge, the petitioner had accepted the discharge and applied for posts in some other Central Government department. In any event, the reason behind discharge is not under challenge in the writ petition. The only relief claimed is based upon Section 47 of the Disabilities Act. It must be noted that the Government of India, Ministry of Social Justice of Empowerment, by a notification No.16-27/2001- N1.1, dated 28.3.2002 had exempted all categories of post of combatant personnel of the Armed Forces from the provisions of Section 47. Therefore, the attempt by the petitioner to challenge the discharge order based upon the Disabilities Act cannot be countenanced.
6.Though an attempt has been made by the petitioner to contend that at the time of discharge, there was no exemption and he is eligible for protection, this court is unable to entertain the writ petition on such technical ground. Even otherwise, the petitioner had not explained the long delay in coming to this court. His conduct in accepting another employment had also disentitled him from seeking any relief. Hence, W.P.No.21328 of 2008 is liable to be dismissed.
7.In the second writ petition (W.P.No.17657 of 2009), the facts are as follows:
The petitioner had applied for the post of Assistant Cashier-cum-Supervisor in the Heavy Vehicles Factory at Avadi. He also gave attested copies of certificates with reference to educational qualifications and the discharge certificate issued by the Air Force Head Headquarters. Based upon those documents, the petitioner was granted age relaxation applicable to Ex-serviceman. He was permitted to appear for the written examination. The petitioner also wrote the written examination. In the examination, the first five candidates were shortlisted and they were asked to produce their original certificates, including experience certificate on 4.7.2005. Out of five candidates, the first two candidates in the merit list were rejected due to non availability of experience certificate. The petitioner alone had experience certificate and he was considered for appointment to the post of Assistant Cashier-cum-Supervisor. The age of the candidates for the said post should be 18 to 27 years as on 1.8.2004. The date of birth of the petitioner was 1.6.1973. In the normal circumstances, the petitioner was not eligible for the said post as the petitioner's age was not between 18 to 27 years as on 1.8.2004 when the notification was issued. But the petitioner was considered on the ground that he was an Ex-serviceman. Therefore, age relaxation can be granted in necessary documents are produced.
8.The petitioner was given an offer of appointment on 25.10.2005. But at that time, he submitted that he lost all his originals including transfer certificate and Military discharge book. He had lodged a complaint with the police authorities. Thereafter, he requested for joining time of two months to produce the duplicate discharge certificate. Accordingly, joining time was extended upto 4.3.2006. Once again, he was given further extension upto 4.4.2006. The petitioner reported for duty on 27.3.2006 with the certificate issued by the Air Force Record Office certifying that he was enrolled in the Indian Air Force on 28.10.1991. He was discharged from service on 31.3.1997 having found medically unfit for further service in the Indian Air Force, but he was fit for civil employment. The Air Force Record Office also insisted the petitioner to produce a copy of the FIR with an affidavit so as to consider his case for the grant of duplicate certificate. Since these documents were not produced, he was not given the copy of discharge book.
9.At the time of his provisional appointment, the petitioner gave an undertaking that he will produce the duplicate discharge certificate on or before 30.06.2006, failing which his service is liable to be terminated. The petitioner as he was 31 years old was not eligible for the post unless he was considered under the category of Ex-serviceman. Even the discharge certificate produced by the petitioner showed that he did not fall under the category of Ex-serviceman. Hence no discharge book was issued by them. Therefore, the petitioner was given a show cause notice, dated 27.12.2006 proposing to terminate him from service. The petitioner submitted a representation, dated 28.12.2006. On considering his representation, his services were terminated after relying upon para 2(c) and para 8 of the terms of appointment. In para 2(c), it was indicated that hid service may be terminated at any time during the probationary period by either side without notice. In para 8 it was indicated that if any declaration given or information furnished by the candidate proves to be false or if the candidate is found to be willfully suppressing any material information, he will be liable to be removed from service.
10.It was the case of the petitioner that since he did not get disability pension, he will not be considered as an Ex-serviceman. A photostat copy of the discharge certificate produced in the typed set showed that the petitioner was discharged on the ground of medical unfitness, but he was held to be fit for civil employment. In the letter, dated 25.4.2006 issued by the Air Force Record Office in para 2 it was stated as follows:
"2.Enclosed please find a Single Sheet Discharge Certificate for your retention and further necessary action. You may present the same to your re-employer. It may be understood that as you do not fall under the category of ex-servicemen, a discharge book cannot be issued to you as per the policy in vogue. Your documents have been forwarded to Min of Defence for their consideration on your second appeal against the rejection of your disability pension. If your claim is accepted and disability pension is granted to you, then only you would fall under the category of ex-servicemen and subsequently a discharge book would be issued to you."
11.Therefore, the contention of the petitioner that his termination was invalid and that he ought to have been considered under the Ex-serviceman quota cannot be accepted. Once he did not fall under the category of Ex-serviceman, he is not eligible for any age relaxation. Admittedly, the petitioner is above the age prescribed for the said post offered to him and without his being considered as an Ex-serviceman, he is not eligible for any relaxation. Therefore, second writ petition also lack in merits.
12.In the light of the above, both writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.
vvk To
1.The Secretary to Government, Union of India, Ministry of Defence, New Delhi.
2.Air Officer Commanding Air Force Record Office, Subrato Park, New Delhi-110 010.
3.The Commanding Officer, No.7, Air Force Hospital, Nathusing Road, Kanpur Cantonment, Uttarpradesh State.
4.The Senior General Manager, Heavy Vehicles Factory, Avadi, Chennai-600 054.
5.The Director, Directorate General Ordinance Factory Board Road, 10-A, S.K.Bose Road, Kolkatta 700 001