Himachal Pradesh High Court
Rajesh Kumar vs State Of H.P. And Ors on 18 August, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 2460/2020
Decided on : 18.8.2020
.
Rajesh Kumar .....Petitioner
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 No
For the Petitioner: Mr. Rajesh Kumar Parmar, Advocate.
For the Respondents: Mr. Ashok Sharma, A.G. with Mr. Vinod
Thakur, Addl. A.G. and Ms. Seema
Sharma,Dy.A.G.
(Through Video Conferencing)
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The petitioner is an exserviceman, who superannuated from Army on 31.12.2016 and thereafter got his name registered for the reemployment in Exservicemen Employment Cell.
2 The Superintendent of Police, Solan, requested the Director, Sainik Welfare Board to sponsor the names of ex servicemen for the post of Constables reserved for the ex servicemen.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 23 The Director General of Police fixed 45 years as the age .
for exservicemen for enrollment in Police and the break in service between the date of discharge from Army and enrollment in Police was kept as two years keeping in view the job recruitment of the police.
4 The Commandant, 1st IRB Bangarh, Una, rejected the
portion whereof reads as under:
r to
candidature of the petitioner vide letter dated 9.3.2020, relevant "In compliance of PHQ letter No. P.II(3) Ex Servicemen/389/18540828 dated 02.03.20, recruitment record along with relevant documents pertaining to selected 09 candidates (Exservicemen) were received in this office from your office for giving appointments. On the scrutiny of the recruitment record of the concerned candidates, it was found that Ex.DFR Rajesh Kumar was discharged from Army w.e.f. 31.12.2016 and duration of gap from his date of discharge to cut off date meant for the post of Constable exceeds the 02 years time limit by 01 day, which is contrary to HP Govt. Instructions Nos HomeAA(3)4/2011 dated 24.05.2013. The detail of above named candidate on the basis of his discharge book is as under: Sr. Name of candidate Date of Date of Year wise Age as on Duration of No. (General Birth discharge cut off date cut off date gap from Category) from Army for the date of recruitment discharge to cut off date ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 3 1 Ex.-DFR Rajesh 22.04.1976 31.12.2016 01.01.2019 42 years,08 02 years, Kumar, s/o Sh. months & 01 day .
Ram Gopal 10 days
Thakur, r/o Village
Satiwala, P.O.
Barotiwala, Tehsil
Baddi, District
Solan(HP)
5 It appears that thereafter vide letter dated 2.6.2020,
the Commandant sought clarification on the subject from her higher authorities and was informed vide letter dated 11.6.2020, relevant portion whereof reads as under: "As regards, it is advised that as per CCS Pension Rule, 1972, 5(2) ChapterII "the day on which a Govt. servant is retired or discharge shall be treated as his last working day." Accordingly the date of discharge (i.e. 31/12/2016) cannot be counted for calculation purpose.
It is advised to take further necessary action accordingly."
6 Even after this clarification, the Commandant has rejected the candidature of the petitioner by concluding as under: Sr. Name of Date of Cut off date Duration of gap from date of No. candidate discharge for discharge to cut off date recruitment 1 Ex.DFR Rajesh 31.12.2016 01.01.2019 01.01.2017 to 31.12.2017 = 01 Kumar, s/o Sh. year.
Ram Gopal 01.01.2018 to 31.12.2018 =01
Thakur, r/o year
Village Satiwala, 01.01.2019 = 01 day
P.O. Barotiwala, Total= 02 years & 01 day
Teh. Baddi,
District Solan(HP)
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4
Therefore, ExDFR Rajesh Kumar is not found eligible to be appointed for the post of Constable against the reserved .
vacancy for the Exservicemen. Hence, original documents are returned herewith to your office with the request to sponsor the next suitable/eligible candidate who fulfills the eligibility/conditions for the post of Constable reserved for ExServicemen in the term of PHQ notification No.PII (3) (Consts.) 1063M+FM)/2018617 dated 03.03.2019.
7We have heard learned counsel for the parties and have gone through the material place on record.
8 It would be noticed that the petitioner had been in active service upto 31.12.2016. Once that be so, then obviously it is only on 01.01.2017 that he ceased to be in service and acquired the status of exservicemen.
9 A similar question came up before the Hon'ble Supreme Court in S. Banerjee vs. Union of India and others 1989 Supp (2) SCC 486 wherein the petitioner therein sought voluntary retirement and was so retired on 31.12.1985, he acquired the benefit of the recommendation of the Pay Commission, which came into force w.e.f. 01.01.1986. The question was whether the petitioner therein could be said to have been in service on 01.01.1986 or ceased to be in service for practical purpose on ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 5 31.12.1985 itself. Referring to the contentions, the Hon'ble .
Supreme Court observed as under:
"3. After the retirement of the petitioner, the Fourth Central Pay Commission (for short 'Pay Commission') gave its report recommending the revision of salaries and pension of the Government employees. It is not disputed that the above recommendations of the Pay Commission have been accepted by the Government and that the benefit thereof is also avail able to the employees of this Court. Paragraph 17.3 of Chapter 17 of Part II at page 93 of the Report of the Pay Commission provides as follows:
"17.3 In the case of employees retiring during the period January 1, 1986 to September 30, 1986, Government may consider treating the entire dearness allowance drawn by them up to December 31, 1985 as pay for pensionary benefits."
4. The petitioner claimed the benefit of the recommendation of the Pay Commission as contained in the said paragraph 17.3, but it was not allowed on the ground that he did not, as he was not entitled to, draw salary for January 1, 1986 in view of the proviso to rule 5(2) of the Central Civil Service (Pension) Rules, 1972, hereinafter referred to as 'the Rules'. Rule 5(2) reads as follows:
"5(2). The day on which a Government servant retires or is retired or is discharged ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 6 or is allowed to resign from service, as the case may be, shall be treated as his last .
working day. The date of death shall also be treated as a working day.
Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under clause (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 (or Rule 48A) as the case may be, the date of retirement shall be treated as a non working day."
5. At the hearing of the writ petition, it has also been vehemently urged on behalf of the respondents that as in view of the proviso to rule 5(2) of the Rules, the date of retirement of the petitioner should be treated as a non working day or, in other words, as the petitioner was not entitled to the salary for the day of his retirement, he was not entitled to the benefit of the recommendation of the Pay Commission as contained in paragraph. 17.3 of the report extracted above.
6. Under paragraph 17.3, the benefits recommended will be available to employees retiring during the period, January 1, 1986 to September 30, 1986. So the employees retiring on January 1, 1986 will be entitled to the benefit under para graph 17.3. The question that arises for our consideration is whether the petitioner has retired on January 1, 1986. We have already extracted the order of this ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 7 Court dated December 6, 1985 whereby the petitioner was permitted to retire voluntarily from the service of .
the Registry of the Supreme Court with effect from the forenoon of January 1, 1986. It is true that in view of the proviso to rule 5(2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion, that has no bearing on the question as to the date of retirement. Can it be said that the petitioner retired on December 31, 1985? The answer must be in the negative. Indeed, Mr. Anti Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on December 31, 1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on December 31, 1985. Then it must be held that the petitioner had retired with effect from January 1, 1986 and that is also the order of this Court dated December 6, 1985. It may be that the petitioner had retired with effect from the forenoon of January 1, 1986 as per the said order of this Court, that is to say, as soon as January 1, 1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on January 1, 1986 and not on December 31, 1985. In the circumstances, the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission."
::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 810. After placing reliance on the judgment in S. Banerjee .
case (supra), Full Bench of Andhra Pradesh High Court in Principal Accountant General, A.P. and another vs. C. Subba Rao, 2005 Lab I.C. 1224, held that when the employee has retired on the last date of the month, his date of retirement has to be treated as first date of the succeeding month.
11 Now further question is whether the respondents were right in rejecting the claim of the petitioner on the ground that he is ineligible as duration of gap from the date of discharge to the cut off date is more than 2 years i.e. 2 years and 1 day.
12 Rule 12.24(1) of the Punjab Police Rules, 1934, as applicable to the State of Himachal Pradesh was amended vide notification No. HOMEAA(3)4/2011, dated 24.5.2013 and the same reads as under:
"2 In rule 12.24(1) of the Punjab Police Rules, 1934, in their application to the State of Himachal Pradesh, for clause (b) the following shall be substituted, namely:
(b) The maximum age limit for recruitment of exservicemen in the rank of Constable in the Police Department shall be 45 years, if they present themselves for reenrollment and are ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 9 found medically fit within two years of voluntarily taking their discharge.
.
13 It appears that this Rule has been totally mis construed by the respondents as requirement of the Rule is (i) an exserviceman should, for the purpose of recruitment, be less than 45 years of age; (ii) should have presented himself for re voluntarily taking his discharge.
r to enrollment; and (iii) found medically fit within two years of Whereas, the case of the petitioner has been rejected on the ground that duration of the gap from the date of discharge to the cut off date is more than 2 years and is rather 2 years and 1 day as calculated hereinabove. The Rule only contemplates that the reenrollment should be within 2 years and nothing more.
14 To say the least, interpretation placed by the respondents on the aforesaid Rule is erroneous and defeats the object of the reservation provided for exservicemen.
15 Even otherwise, cut off date prescribed in the advertisement is only for the purpose of calculating the upper and lower age limit of the candidates as would be evident from the clause, which reads as under: ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 10 "The cut off date for calculation of upper and lower age limit of the candidates will be 1.1.2019 for all categories."
.
16 In addition to the aforesaid, we really wonder why the State of Himachal Pradesh has amended the Police Rules by incorporating therein the aforesaid Rule that too when a pari materia Rule had already been struck down earlier by the Punjab and Haryana High Court in Sukhwinder Singh & ors. vs. State of Punjab & ors., 2014 (1) ILR (P&H) 5114 by observing as under: "Rule 12.24 sub clause (1) of the Punjab Police Rules, 1934 is couched in the following terms: "12.24 Enlistment of exsoldiers, reservists and expolice officers.
(1) Reenrolment in the rank of constable is permitted and past service will count for pension under the following conditions, and subject to the further conditions as to pensions contained in rules 9.2 and 9.29:
(a) Exsoldiers of the Indian Army and exmembers of police forces (including Military Police), paid for from the general revenues of India, may be enlisted as constables on production of a discharge certificate showing their previous service to have fulfill the physical and other standards required by these rules for first appointments. They must also be passed medically fit by the same standards as are applied to recruits.
(b) Age of the date of enrolment in the police must be below 30, but exPunjab police officers, and, with the special sanction of the InspectorGeneral in each case, exsoldiers ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 11 and exmembers of other police forces may be reenlisted up to the age of 55, if they present themselves for reenrolment .
and are found medically fit within two years of their discharge.
(c) The break of service between the date of enrolment in the police and the date of discharge from previous army employ shall not exceed two years, and there must not have been more than two breaks of service in all.
(d) No claim to count previous service for pension shall be allowed unless the previous service claimed was declared and verified at the time of enrolment in the police.
(e) Service in a body of additional police shall be counted for increments in the case of a constable transferred to the regular force immediately on such transfer."
A perusal of the statutory provisions reproduced herein above would make it clear that exservice man under the 1982 Rules stands defined. It is not disputed that the present petitioners fell under such definition of exservice man. The extent of application of the 1982 Rules is to all State Civil Services of posts connected with the affairs of State of Punjab except the Punjab Vidhan Sabha Secretarial Services and the Punjab Superior Judicial Service. Under Rule 4 of the 1982 Rules 13% of the vacancies are to be reserved for exservice men to be filled by direct appointment in all the State Civil Services. It is in terms of Rule 4 of the 1982 Rules that the necessary reservation of 13% had been provided in the advertisement dated 12.9.2010 (Annexure P
7) for recruitment to the post of Male Constable in the Punjab District Police Cadre. Rule 6 governs the question of age and clearly stipulates that for purposes of recruitment to any vacancy in the State Civil Services, an exservice man shall be allowed to deduct the period of his service in the Armed Forces of the Union from his actual age and if the resultant age does not exceed the maximum age limit provided for such direct appointment in the concerned service rules by ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 12 more than 3 years he shall be deemed to satisfy the condition regarding the age limit. Rule 9 mandates that with .
regard to matters not specifically provided for in the 1982 Rules in such eventuality an exservice man appointed against a reserved vacancy would be governed by the concerned service rules. However, all concerned service rules would be subject to the provisions of the 1982 Rules and would be construed accordingly.
Rule 12.24 sub clause (1) of the Punjab Police Rules, 1934 is on the subject of enrollment of exsoldiers, reservists and ex police officers and lays down conditions as regards re enrollment in the rank of Constable. Rule 12.24 sub clause (1) sub clause (c) on the strength of which the offending clause in clause 4 (b) of the advertisement is sought to be justified stipulates that a break of service between the date of enrollment in the police and date of discharge from previous army employment shall not exceed two years and there must not have been more than two breaks in service in all.
At the very outset, it requires notice that Rule 12.24 and the conditions contained therein regulate reenrollment in the rank of Constable in respect of ex soldier, reservists and ex police officers. The provisions contained in Rule 12.24 would not hold the field in so far as the fresh recruitment to the post of Male Constable in the Punjab District Police Cadre is concerned. To such extent the reliance placed upon Rule 12.24 clause (1) sub clause (c) of the Punjab Police Rules, 1934 to justify the stipulation contained in the later part of clause 4 sub clause (b) of the advertisement dated 12.9.2010 as regards the gap between reemployment and discharge from service to be not more than 24 months is clearly misconceived.
Even otherwise, the very purpose and objective of promulgation of the 1982 Rules was as regards rehabilitation of exservice men in terms of consideration of their claim for recruitment to the State Civil Services and ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 13 posts connected with the affairs of the State of Punjab and towards such objective providing for reservation as also .
relaxation of age. Even if, it was to be accepted that the offending part of clause 4 sub clause (b) is on the strength of Rule 12.24 clause (1) sub clause (c) of the Punjab Police Rules, 1934, still the same cannot be permitted to operate as the same would defeat the very objective for which the relaxation in age had been provided to the exservice men and would in fact frustrate the 1982 Rules itself. The petitioners in the light of the relaxation provided under Rule 6 of the 1982 Rules and in terms thereof by deducting the period of their service in the Armed Forces and the resultant age not exceeding the maximum age limit prescribed in the advertisement i.e. 25 years by more than 3 years are clearly vested with a right for consideration for recruitment to the post of Male Constable subject to the other eligibility conditions as regards qualifications etc. as also strictly in order of merit determined in the recruitment/selection process. The later part of clause 4 sub clause (b) cannot operate to the detriment and prejudice of the righs of the petitioners for recruitment to the post in question so as to take away the benefit of age relaxation as provided in terms of clause 4 sub clause (b) as also Rule 6 of the 1982 Rules.
In law the offending later part of clause 4 sub clause (b) cannot be permitted to hold the field so as to render earlier portion of relaxation under the relevant clause to be redundant. It would require notice that Rule 12.24 of the Punjab Police Rules, 1934 was already in the statute book while promulgating the 1982 Rules which were in the nature of a beneficial legislation in favour of the exservice men. Even though, it has been held that Rule 12.24 clause 1 sub clause (c) of the Punjab Police Rules, 1934 hold the field only as regards reenrollment to the post of Constable and would have no applicability as regards fresh recruitment to the post of Constable for vacancies reserved for exservice men are concerned, still both the provisions would have to be read harmoniously so as to ensure that the object sought to be ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 14 achieved in terms of the age relaxation provided under Rule 6 of the 1982 Rules is infact achieved. The 1982 Rules would .
have to be construed in the nature of a particular provision governing the category of exservice men, whereas Rule 12.24 of the Punjab Police Rules are in the nature of general provisions. In the light of the facts of the present case the particular provisions would be held to be overriding the general provisions. Rule 9 of the 1982 Rules crystalize the matter further as it is mandated that for all such matters not specifically provided for in the 1982 Rules, an exservice man appointed against a reserved vacancy would be governed by the concerned service rules. The subject of age and relaxation in terms thereof has been specifically provided for under the 1982 Rules and as such in terms of Rule 9 sub clause (2) the concerned service rules i.e the Punjab Police Rules, 1934 would have to be read subject to the provisions of the 1982 Rules and are required to be construed accordingly.
For the reasons recorded above, the later part of clause 4 sub clause (b) in the advertisement dated 12.9.2010 (Annexure p7) which read in the following terms;
"Inspite of this, the gap between reemployment and discharge service should not be more than 24 months (2 years)." is held to be bad in law and consequently would cease to operate in so far as the claim of the exservice men for consideration of the claim for recruitment to the post in question is concerned. Resultantly, the process of selection/recruitment shall be finalized and the claim of the petitioners, who had been permitted to participate in the selection process in terms of passing of interim order, would be considered strictly in terms of the other stipulations contained in the advertisement and as per their merit determined. The petitioners, however, will not be considered ineligible only on account of the gap between discharge from army service and seeking employment in the Punjab District Police Cadre to be in excess of 24 months.::: Downloaded on - 22/08/2020 20:20:43 :::HCHP 15
17 Similar issue has already been considered by this Court .
in CWP No. 1494/2020, titled as Ex. Hav. Balwan Singh vs. State of H.P. & ors. and connected matters, decided on 17.8.2020.
18 In view of the aforesaid discussion, we find merit in the instant petition and the same is accordingly allowed. The impugned letter dated 9.3.2020, Annexure P5 and letter dated 15.7.2020 (Annexure R/8) whereby the candidature of the petitioner has been found ineligible for the post of Constable reserved for exservicemen, are quashed and setaside and consequently, the respondents are directed to give appointment to the petitioner for the post of Constable in the Department. Pending application(s), if any, also stands disposed of.
The respondents would be well advised to reconsider the amendment in question.
For compliance, list on 17.09.2020.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 18.8.2020 Judge (pankaj) ::: Downloaded on - 22/08/2020 20:20:43 :::HCHP