Punjab-Haryana High Court
Manjit Singh Kahlon vs State Of Punjab And Ors. on 25 September, 2002
Equivalent citations: (2003)133PLR65
JUDGMENT
G.S. Singhvi, Act. C.J.
1. In this petition, the petitioner has prayed for issuance of a writ in the nature of mandamus to respondent no.3- Punjab Public Service Commission (hereinafter described as 'the Commission') to interview him for the post of Principal which was advertised on 16.10.1993. The other prayer made in the writ petition is to strike down the amendment made in the Punjab Recruitment of Ex-Servicemen Rules, 1982 (for short, the 1982 Rules') vide notification dated 22.9.1992.
2. The facts:-
After doing post-graduation in Political Science with 1st Division, the petitioner joined Indian Army (Corps Signal) on 16.6.1962. He sought voluntary discharge from military service w.e.f. 5,8.1974. He then joined under the Government of Punjab as Director, Physical Education on ad hoc basis w.e.f. 16.4.1979. His services were regularised on that post w.e.f. 1.10.1980 vide order Annexure P8 dated 13.7.1982 issued by Director, Public Instructions (Schools), Punjab. In 1989, he was selected by the Commission for appointment as Head Master against the posts reserved for Ex-servicemen. Accordingly, he was appointed as officiating Head Master vide order Annexure P9 dated 3.10.1989. In October, 1993, he applied for recruitment as Principal in response to the advertisement issued by the Commission (published in 'The Tribune' dated 16.10.1993). He claimed consideration against the posts reserved for Ex-servicemen. The Commission rejected his application on the ground that he does not fall within the amended definition of 'Ex-serviceman' under Rule 2(c) of the Punjab Recruitment of Ex-Service-men Rules, 1982 (for short, 'the 1982 Rules'), as amended vide notification dated 22.9.1992.
3. The petitioner has challenged the decision of the Commission mainly on the ground that it is discriminatory and violative of Articles 14 and 16 of the Constitution of India. He has averred that distinction sought to be made between an Ex-serviceman who is discharged or retired from service by the competent authority and the one who seeks voluntary discharge from Army service is irrational, arbitrary and devoid of any justification. He has relied on the decisions of the Supreme Court in K.C. Arora v. State of Haryana, 1984(2) S.L.R. 97 and Raj Pal Sharma v. State of Haryana, 1985 (3) S.L.R. 573.
4. In their separate written statements, respondent Nos.1 and 2 and respondent no.3 have justified the rejection of the petitioner's candidature and controverted his claim for recruitment as Principal against the posts reserved for Ex-servicemen by asserting that he does not fall within the ambit of amended definition of 'Ex-serviceman'.
5. I have heard learned counsel for the parties. The question as to whether a person, who has sought voluntary discharge from the Indian Army falls within the definition of Ex-serviceman is no longer res-integra. In Raj Pal Sharma v. State of Haryana (supra), the Supreme Court interpreted the Punjab Government National Emergency (Concession) Rules, 1965, as amended by the Haryana Government notification dated 5.11.1976 and held as under:-
"What Article 14 prohibits is a class legislation and not reasonable classification for the purpose of legislation. If the legislature takes care of reasonably classify persons for legislative purposes and it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons. In order, however, to pass the test of permissible classification two conditions must be fulfilled; (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. In the instant cases, the petitioners are all ex-military personnel. They have also been released from military service. All those persons released from military service constitute one class and it is not possible to single out certain persons of the same class for differential treatment. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived of the equal opportunity. The amendment, therefore, is violative of Articles 14 and 16 of the Constitution and, therefore, bad. In this view of the legal position the petitioners herein are also entitled to the benefits of R.4 and the mere fact that they were released from military service on compassionate grounds cannot disentitle them as they satisfy the requirement of Rule 4 of the Punjab Rules as it originally stood. The grounds On which they were released are not material. If once they are held to be ex-military servicemen they are entitled to the benefit of R.4."
6. In Sansar Chand Atri v. State of Punjab and another,3 JT 2002 (3) S.C. 470, their Lordships referred to the provisions of the 1982 Rules as amended by notification dated 29.2.1992 and held as under: -
"The answer to the question formulated earlier depends on a fair interpretation of the rules particularly the rule laying down the definition of the term 'ex-servicemen'. The public service commission was not inclined to consider the appellant's candidature in the posts reserved for ex-servicemen because the appellant had been discharged from service at his own request and had not retired from the service. The High Court accepted the interpretation made by the Commission mainly on the ground that in the provisions of the Army Rules, a distinction is maintained between 'discharge', retired and 'release' or army personnel from the service. The High Court took the view that under the 1982 services rules as amended in 1992, a person who has been released from the service on his own request as provided in rule 2(c)(iii) is specifically excluded from the purview of the term 'ex-servicemen'. Relying on the said provision, the High Court took the view that the appellant has neither retired from the service nor has been released from service as contemplated under the aforementioned provision but has been discharged from the service on his own request. Because of the exclusory definition of the term 'ex-servicemen', the High Court was not persuaded to accept the claim of the appellant that he should be considered as an ex-serviceman.
It is relevant to note here that in the certificate issued by the ministry of defence, die appellant has been described as an ex-serviceman. The provision for reservation in the service rules is meant for the benefit of ex-servicemen. The purpose is to provide them with suitable jobs in civil services so that they may not face difficulty in adjusting themselves in civil society after leaving the defence service. In the context of the scheme of the provision, the provisions in the rule should be interpreted in a purposive and reasonable manner so that the intent and purpose of the provision is served. From the provisions in the rules, it appears that a distinction has been made by persons who are released from the army on ground of medical disqualification or on ,ground of inefficiency or misconduct. Such distinction is reasonable keeping in view the purpose of reservation of posts made under the rules. All the ex-defence service personnel are to be treated as a class separate from other candidates for the purpose of offer of jobs and no differentiation or discrimination can be made amongst them unless such differences are real and substantial. Testing the provisions in this context, we are of the view that a person in the army who has earned pension after putting in the requisite period of service before leaving the army whether at his own request or on being released by the employer on any ground should be treated as an ex serviceman who has retired from the army. Such treatment is to be meted out to all such persons irrespective of whether the nomenclature used is 'relieved' or 'discharged' or 'retired'. If the contention raised on behalf of the service commission and the state government that since the appellant has been discharged from the army at his own request, he cannot be treated as an ex-serviceman, is accepted then it will create a class within a class without rational basis and, therefore, becomes arbitrary and discriminatory. It will also defeat the purpose for which the provision for reservation has been made."
7. In view of the aforementioned decisions, it must be held that the decision of the Commission to reject the petitioner's claim for being considered against the posts re-served for Ex-servicemen is violative of Articles 14 and 16 of the Constitution of India.
8. The question which remains to be considered is as to what relief, if any, should be given to the petitioner. A perusal of the record shows that the petitioner had sought an interim order, but while issuing notice of motion or admitting the writ petition, the Court did not accept his prayer. C.M. No. 11152 of 1995 filed by him for restraining the Commission from declaring the result of the interviews was dismissed by the learned Single Judge. Therefore, the only direction which can be given at this belated stage is that his candidature should be considered by the Commission for recruitment as Principal against the posts earmarked for Ex-Servicemen, if one is available. If no such post is not available, then his candidature shall be considered against the future vacancy irrespective of the fact that he may have crossed the upper age limit or may not be fulfilling the other conditions of eligibility.
9. In the result, the writ petition is allowed. The rejection of the petitioner's candidature for recruitment as Principal (P.E.S. Class-II) (School Inspection Cadre) is declared illegal. The Commission is directed to consider the petitioner if any post in that cadre reserved for Ex-servicemen is lying vacant. If no such post is present available, then his candidature shall be considered in future recruitment against the quota reserved for Ex-
servicemen irrespective of the fact that he may have crossed the upper age limit or may not be fulfilling the conditions of eligibility prescribed after the year 1993.