Kamal Kant v. Union of India and Ors.

1. The present review petition has been filed by the petitioner/review petitioner [hereinafter “review petitioner”] against the final judgment dated 1st March, 2021 passed in W.P.(C) 205/2021, whereby the petition filed by the petitioner challenging the order dated 3rd December, 2020 passed by the Central Administrative Tribunal in OA No.1973/2020, was dismissed.

2. Notice in the review petition was issued on 8th October, 2021. Replies of the respondents no.1 and 3 and the respondent no.2, UPSC as well as the rejoinders thereto are on record. Arguments were heard on 28th April, 2023, when judgment was reserved in the review petition. Both sides have also filed their respective written submissions.

3. The main ground for review raised on behalf of the review petitioner is that Office Memorandum [hereinafter “OM”] dated 8th April, 2013 issued by the respondent no.1, Department of Personnel and Training [hereinafter “DoPT”] was wrongly applied in the present case as the said OM cannot override the Ex-Servicemen (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012 [hereinafter “ESM Rules, 2012”], which continue to hold the field. It is further submitted that Rule 5(c) of the ESM Rules, 2012 is only applicable to vacancies filled by recruitment under “recruitment on the results of an All India Competitive Examination”. Therefore, the petitioner’s case would not be governed by Rule 5(c) of the ESM Rule, 2012 but Rule 5(b) of the ESM Rules, 2012.

4. The judgment under review records in paragraph 13 that there was some ambiguity in Rule 5 of the ESM Rules, 2012, which was clarified by the OM dated 8th April, 2013 issued by the respondent no.1, DoPT. It was further noted that the aforesaid OM has not been challenged by the review petitioner. In terms of the aforesaid OM, the phrase “direct recruitment on the results of an All India Competitive Examination” as occurring in Rule 5(c) of the ESM Rules, 2012 was clarified to mean (i) all recruitment by the UPSC whether through written examination or by interview or both; and, (ii) recruitment made by other authorities including the Staff Selection Commission or any other appointment authority through written competitive examination or tests (but not by interview only). The expression “direct BANSAL recruitment otherwise than by open competition” as occurring in Rule 5(b) of the ESM Rules, 2012 was also clarified to mean (i) any recruitment not made by the UPSC or (ii) recruitment not made through written competitive tests held by any other authority.

5. In view of the above, the post for which the review petitioner had applied would qualify to be a post to be filled by “direct recruitment on the results of All India Competitive Examination” and therefore, the review petitioner was entitled to age relaxation of only five years in terms of Rule 5(c) of the ESM Rules, 2012.

6. The review petitioner has placed reliance on a letter dated 6th April, 2016 written by the UPSC, which makes a reference to a communication dated 20th April, 2015 of the respondent no.1, DoPT. It is the contention of the review petitioner that the DoPT had taken a stand in its communication dated 20th April, 2015 that where recruitment is done through interview by shortlisting of candidates through the respondent no.2, UPSC, the said course would be excluded from “civilian direct open competition”.

7. The reliance placed on the letter dated 6th April, 2016 by the review petitioner is misplaced. The respondent no.2, UPSC, in its counter affidavit, has clarified that the letter dated 6th April, 2016 was sent by the respondent no.2, UPSC in relation to Civil Appeal No.2103/2008 titled UPSC v. Neeraj Kumar Sinha before the Supreme Court. In the said appeal, no counter affidavit had been filed on behalf of the Union of India/DoPT and therefore, the respondent no.2, UPSC was coordinating with the DoPT to seek clarification in respect of the communication dated 20th April, 2015 as the same had been relied upon in the aforesaid case before the Supreme Court.

BANSAL

8. As regards the letter dated 20th April, 2015 issued by the DoPT, the said letter was only a clarification in respect of the earlier Central Civil Services and Civil Posts (Upper Age-limit for Direct Recruitment) Rules, 1998 [hereinafter “1998 Rules”]. The 1998 Rules increased the upper age limit by 2 years for recruitment consequent to increase in the retirement age by 2 years and was meant exclusively for civilian posts. Therefore, the aforesaid letter is not relevant for the purpose of the ESM Rules, 2012. Furthermore, in the counter affidavit filed on behalf of the respondent no.1, DoPT, it has been explained that the communication dated 20th April, 2015 was sent by the DoPT to the UPSC in the context of observations made by the Supreme Court in Civil Appeal No.2103/2008 titled UPSC v. Neeraj Kumar Sinha.

9. On the other hand, the OM dated 8th April, 2013 has no link whatsoever with the 1998 Rules as contended by the review petitioner. The said OM was in the context of the ESM Rules, 2012. The ESM Rules, 2012, as clarified by the OM dated 8th April, 2013 are specific to ex-servicemen. Unlike Rules 5(b) of the ESM Rules, 2012, the 1998 Rules had no concept of “otherwise than by open competition”.

10. A clarification noting the aforesaid difference between the 1998 Rules and the ESM Rules, 2012 was also issued by the DoPT to the UPSC vide communication dated 21st April, 2017. It was further clarified in the said communication that the definition of the term “All India Competitive Examination” given in the OM dated 8th April, 2013, which is exclusively applicable to ex-servicemen, does not require any change. Relevant extracts are set out below: BANSAL “The matter has been examined in consultation with Establishment Division of DOPT and Department of Exservicemen Welfare, Ministry of Defence and it has been observed that the definition of Direct Recruit Open Competitive Exam given in this Department’s Notification dated 21.12.98 for the purpose of Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment) Rules, 1998 is meant for direct recruit civil candidates in general. On the other hand, definition of Direct Open Competitive Exam for the purpose of Ex-servicemen (Reemployment in Central Civil Services and Posts) Amendment Rules 2012 amending Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules 1879, as amended, clarified by this Department’s OM dated 8.4.2013 is exclusively for Exservicemen. Therefore, the definition of term “All India Competitive Examination” given in this Department’s OM 08.04.2013, which is exclusively applicable for Ex-servicemen, does not require any change.”

11. In view of the discussion above, no grounds for review of the judgment dated 1st March, 2021 are made out. Dismissed. AMIT BANSAL, J. RAJIV SHAKDHER, J. JUNE 01, 2023 rt/sr BANSAL