Gujarat High Court
Aviram vs Staff on 31 March, 2010
Author: R.M.Doshit
Bench: R.M.Doshit
Gujarat High Court Case Information System
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SCA/3929/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3929 of 2010
=========================================================
AVIRAM
SAHOO S/O BISWANATH SAHOO - Petitioner(s)
Versus
STAFF
SELECTION COMMISSION THROUGH REGIONAL DIRECTOR & 2 -
Respondent(s)
=========================================================
Appearance
:
MR
MS RAO for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 31/03/2010
ORAL
ORDER
(Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) The petitioner, a Sergeant grade II in the Indian Air Force has filed this petition under Article 226 of the Constitution of India to challenge the communication dated 12th February 2010 of the Regional Director, Staff Selection Commission (Government of India), Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, cancelling the candidature of the petitioner for appointment as Tax Assistant, Central Board of Excise and Customs, in the category of Ex-serviceman.
Pursuant to the advertisement issued by the Staff Selection Commission, published on 15th August 2008, the petitioner applied for selection and appointment as Tax Assistant, Central Board of Excise and Customs in the category of Ex-serviceman. The advertisement explained the word Ex-serviceman to mean a person who has served in any rank whether as a combatant or non-combatant in the Regular Army, Navy, Air Force of the Indian Union and (i) who retired from service after earning his/her pension. This would also include persons who are released/retired at their own request but after having earned their pension; or (ii) who has been released from such service on medical grounds attributable to military service/circumstances beyond his/her control and awarded medical or other disability pension; or (iii) who has been released, otherwise than on his/her own request from such service as a result of reduction in establishment; or (iv) who has been released from such service after completing the specific period of engagements, otherwise than at his/her own request or by way of dismissal or discharge on account of misconduct or inefficiency, and has been given a gratuity; and includes personnel of the Territorial Army of the following categories, namely :- (a) Pension holders for continuous embodied service, (b) Persons with disability attributable to military service; and (c) Gallantry award winners. NOTE-I : xxxx xxxx xxxx NOTE-II : xxxx xxxx xxxx NOTE-III : For any serviceman of the three Armed Forces of the Union to be treated as Ex-Serviceman for the purpose of securing the benefits of reservation; he/she must have already acquired, at the relevant time of submitting his/her application for the Post/Service, the status of ex-serviceman and/or is in a position to establish his/her acquired entitlement by documentary evidence from the competent authority that he would complete specified term of engagement from the Armed Forces within the stipulated period of one year from the closing date (i.e. 11.09.2008).
The petitioner, along with his application, gave the required undertaking and also produced the 'No-Objection Certificate' issued by the Wing Commander, Commanding Officer, South-Western Air Commander Headquarter, Gandhinagar certifying that the petitioner was enrolled in the Indian Air Force on 11th August 1989 and ...His present term of engagement expires 31-08-2009. He has submitted unwillingness for further extension of engagement/not cleared for extension of engagement and as such, he is due for discharge from Air Force with effect from 31-08-2009.
Pursuant to his application, the petitioner was allowed to take the competitive test and the skill test. After completing the competitive test and the skill test, before the petitioner was appointed as Tax Assistant, under the impugned communication dated 12th February 2010, the petitioner was informed ...As you have not submitted the requisite Discharge certificate showing your discharge from the Armed Force before 10.09.2009, you are not entitled to be treated as Ex-serviceman and hence your candidature for the above is treated as Cancelled. Feeling aggrieved, the petitioner has preferred the present petition.
Learned advocate Mr.Rao has appeared for the petitioner. He admits that on expiry of his term on 31st August 2009, the petitioner's engagement in the Air Force is continued till the date. He has, however, submitted that till the petitioner is appointed as Tax Assistant he can continue to serve in the Air Force. On securing the appointment as Tax Assistant, the petitioner will take discharge from the Air Force. The cancellation of the petitioner's candidature is, therefore, manifestly wrong. Mr.Rao has also relied upon the text of the undertaking given by the petitioner along with the application. He has submitted that the undertaking clearly indicated the satisfaction of the appointing authority. Whereas, the impugned communication is sent by the recruiting authority. The petitioner cannot be non-suited for appointment as Tax Assistant even though he is eligible for such appointment and has passed through the selection procedure on the ground of non-production of discharge certificate from the Indian Air Force.
We are unable to agree with Mr.Rao. As recorded hereinabove, the petitioner applied for appointment in the category of Ex-serviceman. It should, therefore, be pre-requisite that on the date of the application the petitioner was an Ex-serviceman, which he was not. But for the above referred Note-III, the petitioner could not have applied for selection and appointment in the category of Ex-serviceman. The said Note-III is indeed an exception to the extent that a serviceman is allowed to apply as an Ex-serviceman on condition that he gets discharge within one year from the closing date i.e. within one year from 11th September 2008. As indicated in the No-Objection Certificate, the petitioner was due for discharge on 31st August 2009, which brought him within the category of Ex-serviceman as explained under Note-III. But then it was incumbent upon the petitioner to take discharge on 31st August 2009 when it was due. Instead, the petitioner chose to continue in the Indian Air Force. Thus, not only the petitioner is not an Ex-serviceman, he does not fall in the category of Ex-serviceman under the exception made under the above referred Note-III.
The undertaking relied upon by Mr.Rao also indicates that the Ex-serviceman category candidate covered under the above referred Note-III was required to obtain discharge within the specified one year. The undertaking states ...my appointment will be subject to my producing documentary evidence to the satisfaction of the Appointing Authority that I have been duly released/retired/discharged from the Armed Forces and that I am entitled to the benefits admissible to Ex-Servicemen in terms of the Ex-Servicemen (Re-employment in Central Civil Services and Posts rules, 1979, as amended from time to time). Thus, the petitioner was put to adequate notice that for being eligible for appointment as a Tax Assistant the petitioner was required to take discharge from the Indian Air Force by 10th September 2009. In other words, on 11th September 2009 the petitioner was required to be an Ex-serviceman de facto.
In our opinion, the petitioner, not being an Ex-serviceman in fact and also not as explained in Note-III, has no right to selection and appointment pursuant to the advertisement published on 15th August 2008, in the category of Ex-serviceman. His candidature for selection and appointment has rightly been cancelled by the Staff Selection Commission.
For the aforesaid reasons, the petition is dismissed in limine.
(M.D.Shah,
J.) (Ms.R.M.Doshit, J.)
/moin
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