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COMMISSIONER OF POLICE Vs. HARISH KUMAR YADAV & ANR.
March, 28th 2013
$~R-21

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: January 03, 2013


+                            W.P.(C) 3283/2001

       COMMISSIONER OF POLICE                       ..... Petitioner
          Represented by: Mr.V.K.Tandon with Mr.Yogesh Saini,
                          Advocates

                    versus


       HARISH KUMAR YADAV & ANR.                          ..... Respondents
           Represented by: None.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE VEENA BIRBAL


PRADEEP NANDRAJOG, J. (Oral)

1.     Respondent No.1 Harish Kumar Yadav had sought a voluntary
discharge from the Indian Army and had to approach the Central
Administrative Tribunal when his appointment as a Constable (Executive)
(treating him to be an ex-serviceman) was sought to be cancelled by the writ
petitioner as per its order dated September 24, 1999 on the ground that
having sought voluntary discharge from the Indian Army, Harish Kumar
Yadav was not entitled to be considered as an Ex-serviceman.
2.     Now, the Tribunal has noted that the Ex-servicemen (Re-employment
in Central Civil Services and Posts) Rules, 1979 do not define as to who
would be an Ex-serviceman.         The Tribunal noted that the subject was
W.P.(C) 3283/2001                                               page 1 of 5
attempted to be legislative upon by a guideline dated April 14, 1987 being
O.M. No. 36034/5/85 as per which Ex-serviceman was defined as under:-
               "An ex-serviceman means a person who has served in
               any rank whether as a combatant or non-combatant in the
               Regular Army, Navy and Air Force of the Indian Union
               and
       (i)     who retired from such service after earning his/her
               pension; or
       (ii)    who has been released from such service on medical
               grounds attributable to military service or circumstances
               beyond his control and awarded medical or other
               disability pension; or
       (iii)   who has been released, otherwise than on his 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 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:-
               (i)    pension holders for continuous embodied service;
               (ii) persons with disability attributable to military
                      service; and
               (iii) gallantry award winners."





3.     The Tribunal has noted that since the Rules did not define who would
be an Ex-serviceman it would not be permissible to fill in anything in the
Rules by way of an office memorandum. The result is that before the
Tribunal the respondent succeeded and order dated September 24, 1999
cancelling his appointment was struck down.
4.     Up in arms against the impugned order passed by the Tribunal is the
Commissioner of Police. We note that notwithstanding the writ petition
being admitted, no stay was granted to the petitioner and the result is that
Harish Kumar Yadav has continued to serve the department and probably

W.P.(C) 3283/2001                                                 page 2 of 5
may have superannuated by now.          Be that as it may whether he has
superannuated or not is not our concern.
5.     In the decision reported as JT 2002 (3) SC 470 Sansar Chand Atri v.
State of Punjab and Anr. the Supreme Court was considering an amendment
to the Punjab Recruitment of Ex-servicemen Rules.
6.     Rule 2(C)(ii) was substituted and the definition of ,,Ex -servicemen
was as under:-
       "Ex-servicemen means a person who has served in any rank,
       whether as a combatant or a non-combatant in the Naval,
       Military and Air Force of the Union of India (hereinafter
       referred to as the armed forces of the Union of India), and who
       has:-
       (i)    retired from such service after earning his pension; or
       (ii) been released from such service on medical grounds
              attributable to military service or circumstances beyond
              his control and awarded medical or other disability
              pension; or
       (iii) been released, otherwise than on his own request from
              such service as a result of reduction in establishment, or
       (iv) been released from such service after completing the
              specific period of engagement otherwise than at his own
              request or by way of dismissal or discharge on account of
              misconduct or inefficiency and has been given a gratuity;
              but does not include a person who has served in the
              Defence Security Corps, the General Reserve
              Engineering Force, the Lok Sahayak Sena and the para
              military forces, but includes personnel of the Lok
              Sahayak Sena of the following categories, namely;
              (i)    pension holders for continuous embodied services;
              (ii) persons with disability attributable to military
                     service and
              (iii) gallantry award winners.

       "Explanation: The persons serving in the armed forces of the
       union, who on retirement from service would come under the
       category of ,,ex-servicemen may be permitted to apply for re-
       employment and avail themselves of all concessions available
       to ex-servicemen but shall not be permitted to leave the uniform
W.P.(C) 3283/2001                                                 page 3 of 5
       until they complete the specific terms of engagement in the
       armed forces of the union."


7.     In paragraph 9 of its opinion, the Supreme Court observed as under:-
              "It is relevant to note here that in the Certificate issued by
       the ministry of defence the 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."






W.P.(C) 3283/2001                                                     page 4 of 5
8.     We have only to highlight that sub-para (iii) of the amended rule
considered by the Supreme Court is para materia with paragraph (iii) of the
guideline which we are considering and thus, on a parity by reasoning, it
needs to be held that O.M. dated April 14, 1987 is struck down insofar as
para (iii) excludes from the definition of ,,Ex -servicemen those who join the
Army, Navy or the Air Force but were released at their own request.
9.     In other words, for reasons other than the ones given by the Tribunal,
the writ petition fails and is accordingly dismissed but without any order as
to costs.


                                       (PRADEEP NANDRAJOG)
                                            JUDGE



                                         (VEENA BIRBAL)
                                             JUDGE
JANUARY 03, 2013
srb




W.P.(C) 3283/2001                                                 page 5 of 5
 
 
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