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Judgment
K. Chandru, J.—Heard the arguments of Mr. S. Ayyathurai, learned Counsel appearing for the petitioner, Mr. M. Dhamodaran, learned
Counsel for fourth respondent in W.P. No. 21328 of 2008 and Mr. R. Priyakumar, learned Central Government Standing Counsel appearing for
first respondent in WP. No. 17657 of 2009.
The petitioner in both writ petitions is one and the same. In the first writ petition (W.P. No. 21328 of 2008), the petitioner seeks to challenge
the order of discharge, dated 25.3.1997 and seeks for a direction in terms of Section 47 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (for short Disabilities Act).
It is seen from the affidavit filed in support of the writ petition that the petitioner was discharged from the Indian Air Force on medical grounds.
The petitioner after his discharge made an application to the post of Assistant Cashier-cum-Supervisor in the Heavy Vehicles Factory at Avadi
under the Ex-serviceman category. But, however for reasons best known, he has now come forward to challenge his original discharge made on
medical grounds in terms of Section 47 of the Disabilities Act. Notice was given in this writ petition. Subsequent to the filing of the said writ
petition, the petitioner has filed the second writ petition being W.P. No. 17657 of 2009 seeking to challenge the order dated 9.1.2007 passed by
the Heavy Vehicles Factory, wherein and by which he was terminated during his probation on the ground that he was not eligible for age relaxation
in the category of an Ex-serviceman. His appointment was terminated in terms of para 2(c) and para 8 of the order of appointment, vide impugned
order, dated 9.1.2007. That writ petition was admitted on 31.8.2009.
On notice from this Court, the respondents have filed a counter affidavit in the first writ petition. In the counter affidavit filed by respondents 1 to
3, it was stated that the petitioner had effective Psychosis at the rate of 70% which disabled him to perform Air Force service. He also filed
appeals to the Defence Minister''s Appellate Committee and the Ministry of Defence. Those appeals were also rejected. When he applied for a
disability pension, he was informed that since disability did not arise out of his service, he was not eligible to get that pension. Though it was stated
that 1995 Act was in force at the time when the petitioner was discharged, but subsequently in 2002, the Act has been exempted.
In respect of the first writ petition, there are no reasons stated by the petitioner as to why he had come forward to challenge the order after a
period of 11 years from the date of discharge. Subsequent to the discharge, the petitioner had accepted the discharge and applied for posts in
some other Central Government department. In any event, the reason behind discharge is not under challenge in the writ petition. The only relief
claimed is based upon Section 47 of the Disabilities Act. It must be noted that the Government of India, Ministry of Social Justice of
Empowerment, by a notification No. 16-27/2001- N1.1, dated 28.3.2002 had exempted all categories of post of combatant personnel of the
Armed Forces from the provisions of Section 47. Therefore, the attempt by the petitioner to challenge the discharge order based upon the
Disabilities Act cannot be countenanced.
Though an attempt has been made by the petitioner to contend that at the time of discharge, there was no exemption and he is eligible for
protection, this Court is unable to entertain the writ petition on such technical ground. Even otherwise, the petitioner had not explained the long
delay in coming to this Court. His conduct in accepting another employment had also disentitled him from seeking any relief. Hence, W.P. No.
21328 of 2008 is liable to be dismissed.
In the second writ petition (W.P. No. 17657 of 2009), the facts are as follows:
The petitioner had applied for the post of Assistant Cashier-cum-Supervisor in the Heavy Vehicles Factory at Avadi. He also gave attested copies
of certificates with reference to educational qualifications and the discharge certificate issued by the Air Force Head Headquarters. Based upon
those documents, the petitioner was granted age relaxation applicable to Ex-serviceman. He was permitted to appear for the written examination.
The petitioner also wrote the written examination. In the examination, the first five candidates were short listed and they were asked to produce
their original certificates, including experience certificate on 4.7.2005. Out of five candidates, the first two candidates in the merit list were rejected
due to non availability of experience certificate. The petitioner alone had experience certificate and he was considered for appointment to the post
of Assistant Cashier-cum-Supervisor. The age of the candidates for the said post should be 18 to 27 years as on 1.8.2004. The date of birth of
the petitioner was 1.6.1973. In the normal circumstances, the petitioner was not eligible for the said post as the petitioner''s age was not between
18 to 27 years as on 1.8.2004 when the notification was issued. But the petitioner was considered on the ground that he was an Ex-serviceman.
Therefore, age relaxation can be granted in necessary documents are produced.
The petitioner was given an offer of appointment on 25.10.2005. But at that time, he submitted that he lost all his originals including transfer
certificate and Military discharge book. He had lodged a complaint with the police authorities. Thereafter, he requested for joining time of two
months to produce the duplicate discharge certificate. Accordingly, joining time was extended upto 4.3.2006. Once again, he was given further
extension upto 4.4.2006. The petitioner reported for duty on 27.3.2006 with the certificate issued by the Air Force Record Office certifying that
he was enrolled in the Indian Air Force on 28.10.1991. He was discharged from service on 31.3.1997 having found medically unfit for further
service in the Indian Air Force, but he was fit for civil employment. The Air Force Record Office also insisted the petitioner to produce a copy of
the FIR with an affidavit so as to consider his case for the grant of duplicate certificate. Since these documents were not produced, he was not
given the copy of discharge book.
At the time of his provisional appointment, the petitioner gave an undertaking that he will produce the duplicate discharge certificate on or before
30.06.2006, failing which his service is liable to be terminated. The petitioner as he was 31 years old was not eligible for the post unless he was
considered under the category of Ex-serviceman. Even the discharge certificate produced by the petitioner showed that he did not fall under the
category of Ex-serviceman. Hence no discharge book was issued by them. Therefore, the petitioner was given a show cause notice, dated
27.12.2006 proposing to terminate him from service. The petitioner submitted a representation, dated 28.12.2006. On considering his
representation, his services were terminated after relying upon para 2(c) and para 8 of the terms of appointment. In para 2(c), it was indicated that
hid service may be terminated at any time during the probationary period by either side without notice. In para 8 it was indicated that if any
declaration given or information furnished by the candidate proves to be false or if the candidate is found to be willfully suppressing any material
information, he will be liable to be removed from service.
It was the case of the petitioner that since he did not get disability pension, he will not be considered as an Ex-serviceman. A photostat copy of
the discharge certificate produced in the typed set showed that the petitioner was discharged on the ground of medical unfitness, but he was held to
be fit for civil employment. In the letter, dated 25.4.2006 issued by the Air Force Record Office in para 2 it was stated as follows:
Enclosed please find a Single Sheet Discharge Certificate for your retention and further necessary action. You may present the same to your re-
employer. It may be understood that as you do not fall under the category of ex-servicemen, a discharge book cannot be issued to you as per the
policy in vogue. Your documents have been forwarded to Min of Defence for their consideration on your second appeal against the rejection of
your disability pension. If your claim is accepted and disability pension is granted to you, then only you would fall under the category of ex-
servicemen and subsequently a discharge book would be issued to you.
Therefore, the contention of the petitioner that his termination was invalid and that he ought to have been considered under the Ex-serviceman
quota cannot be accepted. Once he did not fall under the category of Ex-serviceman, he is not eligible for any age relaxation. Admittedly, the
petitioner is above the age prescribed for the said post offered to him and without his being considered as an Ex-serviceman, he is not eligible for
any relaxation. Therefore, second writ petition also lack in merits.
In the light of the above, both writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.