Gunwant vs The Zilla Parishad, Gondia and Others

P.B. Varale, J—By way of present petition, the petitioner challenges the show cause notice, dated 21.01.1999 issued by respondent No. 2 - Chief Executive Officer, Zilla Parishad, Gondia and the order dated 14th October, 1999 passed by the learned Additional Commissioner, Nagpur Division, Nagpur in Appeal No. 42/98-99.

The facts, which give rise to filing of the present petition, can be summarized as under:-

The petitioner joined the Army Services on 24.02.1989 as Sepoy in Maratha Light Inventory and sought discharge on 31.01.1992. In response to the advertisement issued calling the candidates for appointment to the post of Primary Teachers in Zilla Parishad Schools, the petitioner submitted his claim. The petitioner was appointed in the school of Zilla Parishad at Tiroda, District Bhandara as Assistant Teacher. The petitioner joined the school on 25.09.1998 and he was shocked and surprised to receive a show cause notice issued by the Office of the Chief Executive Officer, Zilla Parishad, Bhandara. It was submitted in the notice that the petitioner availed the benefit of his appointment/recruitment from the category of ex-servicemen and on verifying the documents, it reveals that the petitioner is not complying with the necessary criteria to term him as ex-serviceman. The petitioner submitted his say. The petitioner was then informed by communication dated 19.06.1999 thereby terminating his services. The petitioner being aggrieved by the order dated 19.06.1999, preferred an appeal before the Divisional Commissioner, Nagpur. The learned Additional Commissioner, Nagpur Division held that the petitioner was not complying with the criteria as ex-servicemen and in view of the government resolution, no interference is warranted in the order of termination. Accordingly, the appeal preferred by the petitioner was dismissed.

Shri A.M. Gordey, the learned Senior Counsel with Smt. R.D. Raskar, the learned Counsel appearing on behalf of the petitioner vehemently submitted that the action of the respondent/authorities shows non application of mind and suffers from infirmities and as such the same is not sustainable. The learned Senior Counsel invited my attention to the documents placed on record and submitted that the petitioner joined in the army services and his date of enrollment was 24th February, 1989 and the petitioner sought discharge on personal ground on 31st January, 1992. The certificate of service of the petitioner is placed on record at "Annexure-I". Shri Gordey further submitted that the petitioner while entering into the Indian Army Service, he was having basic qualification of H.S.S.C. The petitioner after seeking discharge from the army services, improved his academic qualification by passing D.Ed. Examination on 24.10.1997. The learned Senior Counsel then invited my attention to the advertisement issued by the Maharashtra State Examination board, Pune calling the applications from the candidates possessing the requisite qualification for appointment to the post of primary teachers in Zilla Parishad Schools. Shri Gordey, the learned Senior Counsel also submitted that the advertisement refers to the requisite conditions and the criteria as well the relaxation of the conditions. He further submitted that to the show cause notice issued by the Zilla Parishad, Bhandara, the petitioner had submitted a detailed reply and submitted that the petitioner had put in the qualifying service in the army and the advertisement issued calling the applications from the candidates refers to the relaxation of the age criteria for the servicemen. The learned Senior Counsel then submitted that the petitioner in his reply brought to the notice of the authorities that the army authorities issued communication to the effect that the petitioner was discharged from army services on compassionate ground considering his request to join to the police department.

Shri Gordey, the learned Senior Counsel invited my attention to the documents i.e. photocopy of the communication dated 09.02.2992 from Major, Officer Commanding Depot Company to the Superintendent of Police, Bhandara and communication dated 27th May, 1993 issued by Lieutenant Colonel OC Depot Company to the Deputy Inspector General of Police, Nagpur Range. The learned Senior Counsel then submitted that the petitioner also made available the documents i.e. certificates issued to him for perusal of the authorities in response to the communication dated 17.03.1999. Shri Gordey, the learned Senior Counsel submitted that the petitioner being aggrieved by the order of termination of his services, submitted an appeal before the Divisional Commissioner, Nagpur Division, Nagpur raising various grounds. He further submitted that the learned Additional Commissioner, Nagpur Division, Nagpur relying on the reply filed by the Office of the Zilla Parishad and more particularly the contention raised in the reply that in view of the Government Resolution No. TCM-1889/109537/8194/(9) MS-4 held that to comply the criteria as an ex-serviceman, five years'' service in armed forces is required and as the petitioner completed two years and 11 months of service, the petitioner cannot avail the reservation for ex-servicemen and on this ground, the appeal was dismissed. The respondent/authorities acted against the applicant showing a total non-application of mind. The submission of Shri Gordey, the learned Senior Counsel was that to reject the claim of the petitioner, the authorities were placing an implicit reliance on the government circular and held that the petitioner has not completed his five years'' service in army to treat him as ex-serviceman. The further submission of the learned Senior Counsel was that the said circular issued by the government is in respect of providing the services to the wards of the army personnel and ex-servicemen and this circular in no way makes any provisions or criteria of five years minimum service in armed forces for the appointment. Shri Gordey, the learned Senior Counsel then submitted that the petitioner who sought discharge from the service, upgraded his academic qualification and was successful in passing the D.Ed. Course in second class. He, therefore, submitted that the petitioner thus was complying the requisite academic qualification. The learned Senior Counsel also submitted that these material aspects are totally ignored by the authorities and only on mechanically and hyper technical considerations, the services of the petitioner were terminated.

Per contra, Shri C.S. Kaptan, the learned Senior Counsel with Smt. M.P. Munshi, the learned Counsel appearing on behalf of the respondents supported the action of the respondent/authorities. He submitted that the petitioner was discharged from the armed forces at his own request under the Army Act Rule 13(3)(iv). He further submitted that various notifications were issued by the Government of India and on considering the discharge certificate issued to the petitioner, it reveals that the petitioner was discharged from armed forces on his own request. A communication was also received from the Zilla Sainik Welfare Officer, Nagpur to the effect that the petitioner is not receiving pension from the defence budget. The learned Senior Counsel thus submitted that as the petitioner was not complying with the requisite criteria to term him as "ex-serviceman", the respondent/authorities were justified for initiation of the action against the petitioner and terminating the services of the petitioner.

With the assistance of the learned Senior Counsel appearing on behalf of the respective parties, I have gone through the material placed on record. It is not in dispute that the certificate of service placed on record shows that the petitioner entered into the services in the armed forces on 25th February, 1989 and discharged on 31st January, 1992. The advertisement issued by the Maharashtra State Examination Board, Pune, reveals that the age criteria is fixed for the appointment to the post of Primary Teacher is not less than 18 years and not more than 30 years. It is further stated in the advertisement that the maximum age criteria can be relaxed in case of backward class candidates by five years, for physically challenged candidates, till the age of 45 years and for the ex-servicemen, it is their service in the armed forces and for those candidates from the armed force personnel who have served the armed forces more than six months and ex-servicemen, their services in armed forces plus three years. The show cause notice issued to the petitioner reveals that it is informed to the petitioner that he is not complying with the requisite criteria but the show cause notice is silent on the aspect of age criteria which the petitioner is complied with. The communication terminating the services of the petitioner also only states that on verification of the documents of the petitioner, it reveals that the petitioner is not complying with the requisite criteria. The petitioner who had approached the forum namely the Divisional Commissioner by preferring an appeal challenging the order of the termination, on accepting the reply of the Chief Executive Officer more particularly paras 5 and 7(A) and (C) held that the service of the petitioner in the army is only of two years and 11 months and the requirement to treat a person as ex-serviceman is five years'' service in armed forces. A reference is made to the Circular No. TCM-1889/109537/8194/(9) MS-4, copy of which is placed on record. The title of the said circular reads the subject as "keeping five per cent seats for the wards of officiating armed forces personnel and ex-servicemen". The circular then reads that the Government Circular dated 28.06.1984 is amended with certain words in para of the said circular and it refers to the words "prior to grant of such admission the person seeking such admission must submit a certificate to the effect that the officiating person/ex-serviceman has completed minimum five years'' service in armed forces". Considering this circular, it clearly reveals that this circular is issued for providing the reservation of five per cent seats to the words of officiating service personnel and the ex-servicemen.

Shri A.M. Gordey, the learned Senior Counsel was justifying in submitting that placing reliance on this circular for initiating action against the petitioner and terminating his services on the ground that the petitioner has not completed the qualifying service of five years in army, was wholly unjust. Though an attempt was made by the learned Senior Counsel for Zilla Parishad to submit that there were notifications issued by the Ministry of Home Affairs of the Government of India and as per those notifications, the petitioner who sought discharged on his request and was not drawing pension from defence budget, the action was rightly initiated against the petitioner, cannot be accepted on more than one counts. Firstly, this ground raised by the learned Senior Counsel is not the basis of the communication issued to the petitioner asking him show cause or the decision of the appellate authority considering the appeal of the petitioner. For the first time, this ground is raised before this Court. Secondly, the notifications on which the learned Senior Counsel placed reliance, if perused, the notifications which are placed on record at "Annexures-R-II and R-III" with the reply filed on behalf of the State Government, it clearly shows that the notification relates to ex-servicemen (Re-employment in Central Services and Posts) Rules, 1979. The notification dated 27th March, 1987 at "Annexure-R-III" reads thus:-

"2. In Rule 2 of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, to clause (c), the following proviso shall be added, namely-

Provided that for the period commencing on the 15th day of November, 1986 and ending with the 30th day of June, 1987, any person who has been released at his own request after completing 5 years'' service in the Armed Forces of the Union."

Thus, much emphasis was led on this aspect by the learned Senior Counsel for the respondent/authorities. It was the submission of the petitioner, who, on his own request, sought discharge and had not completed five years of service, was not entitled to avail the benefit in the services of Zilla Parishad. As stated above, the Rule deals with the Re-employment of Ex-servicemen in Central Civil Services and Posts. The appointment of the petitioner as an assistant teacher in Zilla Parishad School can no way be termed as a re-employment in Central Civil Services and the Posts. Thus, in my opinion, the reliance placed on this notification to oust the petitioner from the cadre of ex-servicemen is untenable and unsustainable. Apart from this, it will be useful to refer to a decision of the apex Court in the case of Sansar Chand Atri Vs. State of Punjab and Another, AIR 2002 SC 1618 : (2002) 93 FLR 665 : (2002) 3 JT 470 : (2002) LabIC 1501 : (2002) 3 SCALE 257 : (2002) 4 SCC 154 : (2002) 2 SCR 881 : (2002) 3 SCT 61 : (2002) 3 SLJ 13 : (2002) AIRSCW 1528 : (2002) 3 Supreme 41 . The appellant before the Apex Court joined Indian Army on 08.10.1972 as Hawaldar and after rendering a little more than 18 years service, he was discharged on 01.11.1990 on his own request. In response to an advertisement issued by the Punjab Service Commission, the appellant had applied for one of the posts reserved for ex-servicemen. The Punjab Service Commission informed him that he cannot be considered as an ex-serviceman as he has been discharged from the Indian Army at his own request. The appellant had approached the Hon''ble High Court against rejection of his claim. The High Court accepted the Punjab Service Commission''s interpretation on the ground that in the provisions of the Army Rules, a distinction is maintained between "discharge", "retire" and "release" of army personnel from service. The High Court considering that the appellant was released from the service on his own request, was excluded from the purview of the term "ex-servicemen". Thus, the High Court refused to hold that the appellant was an "ex-serviceman". The Apex Court dealing with the Punjab Recruitment of Ex-Servicemen Rules, 1982 its scope and applicability, observed thus:-

"8. The answer to the question formulated earlier depends on a fair interpretation of the Rules, particularly the Rule laying down the definition of the term "ex-servicemen". The Public Service Commission was not inclined to consider the appellant''s candidature in the posts reserved for ex-servicemen because the appellant had been discharged from service at his own request and had not retired from the service. The High Court accepted the interpretation made by the Commission mainly on the ground that in the provisions of the Army Rules a distinction is maintained between "discharge", "retire" and "release" of army personnel from the service. The High Court took the view that under the 1982 Services Rules, as amended in 1992, a person who has been released from the service on his own request as provided in Rule 2(c)(iv) is specifically excluded from the purview of the term "ex-servicemen". Relying on the said provision the High Court took the view that the appellant has neither retired from the service nor has been released from service as contemplated under the aforementioned provision but has been "discharged" from service on his own request. Because of the exclusory definition of the term "ex-servicemen" the High Court was not persuaded to accept the claim of the appellant that he should be considered as an ex-serviceman.

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 for ex-serviceman. The purpose is to provide them with suitable jobs in the 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 Rules 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 for persons who are released from the army on the ground of medical disqualification or on the 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 or 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."

(emphasis supplied).

In view of the Apex Court judgment, on the backdrop of the fact that neither the respondent/Zilla Parishad authorities nor the State Government is claiming that the State Government has formulated such rules in the State of Maharashtra nor the Government Notification issued by the State of Maharashtra and the notifications issued by the Government of India on which the learned Senior Counsel for the respondents placed reliance are applicable in case of the present petitioner, in my opinion, the action taken by the respondent/authorities against the petitioner is clearly unsustainable.

In the result, the writ petition is allowed. The show cause notice, dated 21.01.1999, the order dated 14.10.1999 and the order dated 19.06.1999 issued by respondent No. 2-Chief Executive Officer, Zilla Parishad terminating the services of the petitioner are quashed and set aside.