Major Kapil Sawhney v. Union of India & Ors

2. After careful consideration the Government have accepted the above definition recommended by vj the High Level Committee. However, it may be observed that in the new suggested definition certain categories of personnel which have served in the Armed Forces of the Union have been excluded for consideration as ex-Servicemen, whereas certain additional categories of Tenitorial Army Personnel have been added in the revised definition. The Notification containing the revised definition was issued on 27 Oct 1986 and published in the official Gazette on 15"' Nov 1986. The Notification gives effect to the new definition from the date of its publication, but since some of the categories were ^ excluded without adequate publicity, the effect ofthe earlier notification of 27 Oct 1986 has been stayed by issuing another Notification dated 27 Mar 87 (copy enclosed)in which the date ofeffect has been indicated as 1.7.87. The net effect is that the following two categories of personnel, who were included in the prerevised defmiiion of'ex-Servicemen' will now cease to be treated as ex-Servicemen w.e.f. 1.7.87 as will be seen from the following proviso,namely, "Any person who has been released (a) at his own request after completing five years service in the Armed Forces ofthe Union;or (b) after ser\dng for a continuous period of six r WP(g.7302/2016 Page[4] |o X^/ months after attestation otherwise that at his own request or by way of dismissal or discharge on account of mis-conduct or inefficiency or has been transferred to the reserve pending such release; shall also be deemed to be an ex-Servicemen for the purpose ofthis clause."

3. The Territorial Army personnel will however be treated as ex-Servicemen w.e.f. 15.11.86."

10. The petitioner inter alia challenged the Office Memorandum dated 14.04.1987 in this Court by filing a writ petition being W.P.(C) NO. 2267/2014. While the said writ petition was pending,a Gazette Notification dated 04.10.2012 was issued notifying the Ex-Servicemen(Re-employment in Civil Services and Posts)Amendment Rules 2012,which amend inter alia the definition ofEx-service men in the said Rules of 1979. In view ofthe observation of the Court that the Gazette Notification dated 04.10.2012 should also be challenged,the petitioner withdrew W.P.(C)No.2267/2014 with liberty to challenge the Gazette Notification dated 04.10.2012 as well as the order impugned in WP(C)No.2267/2014. Another writ petition being W.P.(C) No. 1197/2015 filed by the petitioner was also withdrawn with ^ liberty to file a fresh writ petition.

11. The definition ofEx-serviceman in Clause(c)of Rule 2 ofthe said Rules of1979,as amended by the AmendmentRules of2012 is as follows; "(c) An'ex-serviceman' means a person;

(i) who had served in any rank whether as a combatant or non-combatant in the Regular Army, Navy and AirForce oftheIndian Union,and (a) who either has been retired or relieved or WPCC).7302/2016 Page 5 dischargedfrom such service whether at his own-request or being relieved by he employer after earning his or her pension: or (b) who has been relieved from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension;or

(c) who has been released from such service as a resultofreduction in establishment; or

(ii) who has been released from such service after completing the specific period ofengagement, otherwise than at lus own request or by way of dismissal, or discharge on account of misconduct or inefficiency and has been given a gratuity: and includespersonnel ofthe Territorial Army, namely,pension holdersfor continuous embodiedsetwice or broken spells ofqualifyingservice; or

(lii) personnelofthe Army PostalService who arepart of Regular Army and retired from the Army Postal y Service without reversion to their parent service with pension, or are releasedfrom the Army PostalService on medical grounds attribuiable to or aggravated by r militaryservice orcircumstance beyondtheir controland awarded medicalor other disabilitypension; or

(iv) Personnel, who were on deputation in ArmyPostal

(v) Gallantry award winners of the Armed forces includingpersonnelofTerritorial Army; or WPCq.7302/2016 ' Page[6] \J

(vi) Ex-recruits boarded out or relieved on medical ground andgranted medicaldisabilitypension."

12. Learned counsel appearing on behalfofthe petitioner argued that all Short Service Commissioned Officers who complete the requisite period of service offive years are to be treated as a class and given the benefits or facilities ofan Ex-serviceman including re-employment/future employment in the quota reserved for Ex-serviceman.Counsel appearing on behalfofthe petitioner cited the judgments ofthe Supreme Court in Sansar Chand Atri vs. State ofPunjab reported in AIR 2002 SUPREME COURT 1618 and in RajPalSharma and Ors. vs. State ofHaryana and Ors. reported in AIR 1985 SUPREME COURT 1263.In Sansar Chand Atri {supra),the Supreme Court held as under:- "It is relevant to note here that in the Certificate issued by the Ministry ofDefence the appellant has been described as an ex-serviceman. The provision for reservation in the Service Rules is meantfor the benefit ofex-servicemen. The purpose is to provide them with suitable jobs in civil services so that they may notface difficulty in adjusting themselves in civil society after leaving the defence service. In the context ofthe scheme ofthe provision theprovisions in the Rule should be interpreted in a purposive and reasonable manner so that the intent and purpose ofthe 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 ofinefficiency or misconduct. Such distinction is reasonable keeping in view the purpose ofreservation ofposts made under the Rules. All the exdefence service personnel are to be treated as a class separate from other candidates for the vurpose ofoffer of jobs and no differentiation or discrimination can be made WP(g.7302/2016 Page[7] /3 / amonsst them unless such differences are real and siibstannal. Testins the provisions in this context we are of the view that a person in the army who has earned pension after puttins in the requisiteperiod ofsei'vice before leavins the army whether at his own requestor on beinsreleased by the employer on any sround should he treated as an exserviceman who has retired from the army. Such treatment is to be rneted out to all such persons irrespective of whether the nomenclature used is 'relieved'or 'discharged' or 'retired'. Ifthe contention raised on behalfofthe Service Commission and the State Government that since the appellant has been dischargedfi 'om the Army at his own request, he cannot be treated as an ex-serviceman, is accepted then it will create a class M'ithin a class without rational basis and, therefore, becomes arbitrary and discriminatoiy. It will also defeat the purposefor which the provisionfor reservation has been made.

11. The High Court, in our view, is not justified in placing reliance on sub-clause (iv) cfthe dejinition clause and excluding the writpetitionersfrom the eligible category on that basis. Sub-clause (iv) has no application in the instant case for the reason that it applies to such ofthose persons who are relieved from sowice after specific period of engagement and become entitled to get gratuity. If a person, who served in the armedforces, is released after being granted the benefit ofpension, the case is taken outof purview of sub-clause (iv). The exclusionary words "otherwise than at his own request" occurring in subclause(iv) cannot, therefore, be relied upon to deny the benefit to the appellarits. Then the question arises whether such person would fall under sub-clause (i)? True, according to the terminology used in the Service Rules governing the armedforces there is a distinction between retirement and release/discharge, as pointed out by the High Court. But, in the context of definition of exserviceman in Rule 2(c)(ii), broader meaning has to be given to the word 'retired' occurring in sub-clause (i). In principle and in the light of the considerations set out WP(g.7302/2016 Pages above, there is no rational basis for excluding those discharged or releasedfrom service after earning pension. It is only after considerableperiod ofsatisfactory service a member ofarmedforces becomes entitled to pension. The mere fact that after such long period of service he voluntarily quit the service with the consent ofthe employer should not place him in a dis-advantageous position for claiming the benefit of reservation for ex-serviceman. Therefore, the expression 'retirement'should be given wider meaning in order to effectuate the objective behind the Rule."

13. The Supreme Court clearly held that in the context ofthe definition of Ex-serviceman, no distinction could be drawn between retirement and release/discharge. The broader meaning would have to be given to the word 'retired'.

14. In RajPal Sharma(supra),the Supreme Court held as under:- "They have also been releasedfrom military service. All those persons releasedfrom military service constitute one class and it is notpossible to single out certain persons of the same classfor 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 ofthe equal opportunity. The amendment, therefore, is violative ofArticles 14 and 16 of the Constitution and,therefore, bad.

7. The grounds on which they were released are not material. Ifonce they are held to be ex-military servicemen they are entitled to the benefits ofRule 4.

8. The earlier two amendments, viz. thefirst and the second amendments brought in 1976 have already been held to be bad and ultra vires the Constitution in K.C. Arora's case (1984 Lab IC 1015)(supra)and theprinciples laid down in WP(C).7302/2016 Page[9] IA' V,' that decision are equally applicable to the amendment whereby proviso to Rule 4 was added with retrospective effect, The proviso to Rule 4 in the view that we have taken cannotdisentitle thepetitioners togetthe benefitofRule 4."

15. Under Rule 2(c) of the Ex-serviceman (Re-ernployment in Central Civil Services and Posts)/ Amendment Rules 2012, an 'ex-serviceman'has been defined to mean a person who has served in any rank in the Indian ^ Army, whether as a combatant or non-combatant, and has been retired or relieved or dischargedfrom such service, whether at his own request or being relieved by the employer,after earning his or herpension.

16. There can be no discrimination between those who retire or are discharged or relieved at the instance of the employer and those who are released at their own request.

17. For the benefit ofbeing treated ex-serviceman,the minimum requisite service is five years. The definition ofan Ex-serviceman in sub-paragraph 3 ofthe Office Memorandum dated 14.04.1987 that an 'ex-serviceman* means a person who has served in any rank whether as a combatant or non yT combatant in the Regular army who has been released otherwise than on his own request, is thus to be interpreted to exclude only officers who are released on request before completion ofthe period offive years and/or in course oftheir regular service before completion ofthe term for which they were appointed,and not those who are reltjased on request during the period oftheir extension.

18. The writ petition is thus allov/ed. The petitioner shall be treated as an 'ex-servicemanh The order dated 26.09.2011 declining to register the name WP(C).7302/2016 Page 10 [-4 ofthe petitioner under the Rehabilitation Scheme is set aside.The petitioner shall be granted all the benefits of an ex-serviceman including the registration ofhis name under the Rehabilitation Scheme and the benefits of resettlement and reservation ofjobs for'ex-serviceman'. FEBRUARY 09,2017 rs -Ck. I INDIRA BANERJEE,J ^ iy ANIL KUMAR CHAWLA,J r