Bhupendra Singh vs State Of Chhattisgarh

The short question involved in this writ appeal is, whether the status of the appellant as an Ex-serviceman is lost or watered down, once he gets an appointment to any category of civil post of the State by virtue of the Chhattisgarh Ex-Servicemen (Reservation of Vacancies in the State Civil Services and Posts Class III and Class IV) Rules, 1985 (for short, ‘the Rules of 1985’) virtually preventing him from making any application for a better or such other appropriate post by virtue of his qualification?

The aforesaid question of law arises in the following factual backdrop: -

The appellant was appointed in the year 1999 on the post of Rank Naik in the Indian Army. He retired from the said post on 30-9-2015. Thereafter, he applied for the post of Revenue Inspector pursuant to the advertisement issued by the Commissioner, Land Records, Raipur for the post of Revenue Inspector and ultimately, by order dated 5-2-2016, he was appointed on the said post of Revenue Inspector against the post reserved for Ex-serviceman. The Chhattisgarh Public Service Commission issued advertisement for State Service Examination in which the appellant again applied for the post of Tahsildar and appeared in the preliminary examination on 17-2-2019 and after clearance of the preliminary examination, he also appeared in the mains examination on 23-7-2019 which also he cleared and he was called for document verification and interview. On 14-1-2020, the appellant appeared for document verification, but on 15-1-2020, at the time of interview, he was declared ineligible to participate in the process of interview for the reason that he is Ex-serviceman candidate and he has already been appointed on the post of Revenue Inspector against Ex-serviceman quota, therefore, he does not fall in the category of Ex-serviceman which he challenged by way of writ petition being W.P.(S) No.722/2020. The learned Single Judge by its impugned order dated 10-2-2020 dismissed the writ petition holding that once the benefit of reservation has been taken by the petitioner / appellant herein in the Ex-serviceman category having availed the benefit of reservation once, he cannot take the benefit of reservation for the second time it being a special privilege. This impugned order is sought to be challenged by this writ appeal.

Reply has been filed on behalf of the State / respondent No.1 stating inter alia that the instant writ appeal in its form and content does not make out any case of interference and the present writ appeal has been filed against the action of respondent No.2 i.e. the Chhattisgarh Public Service Commission, Raipur, whereby the candidature of the appellant has been rejected on the ground that he being an ex-serviceman having retired on 30-9-2015 was, thereafter, appointed as Revenue Inspector and has therefore ceased to remain an ex-serviceman and thus, cannot claim the benefit of ex-serviceman category while participating in the recruitment process being conducted by respondent No.2. It has been further stated that as per the circular dated 12-3-2015 issued by the State / respondent No.1, ex-servicemen who are once appointed to any post or services after their retirement cannot be conferred with the benefits and cannot thereafter claim the benefit of ex-serviceman category for further / future appointments. It is also stated that reliance placed by the appellant on the Rules of 1985 would not render much assistance to the case of the appellant as the interpretation of the Rules cannot be construed in a manner which may confer benefits in excess of what has been conferred under the relevant Rules / statute. Finally, it is stated that the writ appeal is wholly misconceived and is liable to be dismissed.

No rejoinder has been filed on behalf of the appellant.

Mr. Ishan Verma, learned counsel appearing for the appellant, would submit that the appellant has proved his merit in the examination and in the interview, but appointment to the post in question based on his qualification was denied to him stating that he has already obtained a civil appointment as Revenue Inspector in the earlier selection process with reference to his status as Ex-serviceman and hence the benefit with respect to the earlier status as Ex-serviceman cannot be given to him. He would however, point out that insofar as the Central Government is concerned, there was a memorandum, which prohibited an Ex-serviceman who got reservation by virtue of civil employment will be prevented from claiming the benefit again i.e. benefit of Ex-serviceman cannot be claimed twice, however, subsequently, the condition has been relaxed and as such, there is no bar in claiming any number of appointments by virtue of status as Ex-serviceman which continues forever. He would rely upon a Full Bench decision of the Punjab and Haryana High Court in the matter of Harbhajan Singh v. The State of Punjab and another AIR 1978 P&H 33 and also in the matter of Bhulla Singh and others v. State of Punjab and others 2008 LabIC 279 as well as the decision of the Karnataka High Court in the matter of Chandrappa. E.T. and others v. The State of Karnataka and others 2013(2) KarLJ 70 to buttress his submission. He would further contend that the notification brought on record dated 12-3-2015 is simply an executive instruction which will not override the statutory Rules of 1985 and if there is variance in the advertisement and statutory rules, it is the statutory rules that shall prevail over the advertisement issued relying upon the decision of the Supreme Court in the matter of Malik Mazhar Sultan and another v. U.P. Public Service Commission and others (2006) 9 SCC 507 and also in the matter of Ashish Kumar v. State of U.P. (2018) 3 SCC 55. As such, the impugned order deserves to be set aside and the respondents be directed to consider the case of the appellant in accordance with law.

Mr. Ashish Tiwari, learned Government Advocate appearing for the State / respondent No.1, would submit that the benefit is not extendable to persons like the appellant herein who had already been appointed against the quota reserved for ex-serviceman. He would further submit that while interpreting the definition of “Ex-serviceman” in view of the definition contained in Rule 2(c) of the Rules of 1985, once the Ex-serviceman obtains a civil employment, he will stand removed from the category of an Ex-serviceman, particularly in view of notification dated 12-3-2015 issued by the State of Chhattisgarh clearly stating that once Ex-serviceman is appointed in Government service, he or she will not be entitled for the benefit of reservation under the said category in the subsequent application for appointment. Furthermore, the advertisement pursuant to which the appellant has applied for selection to the post of Naib Tahsildar was issued as per clause 15(iii) in which there was a specific clause and condition with respect to reservation regarding Ex-serviceman and the candidate was under obligation to provide an undertaking as specified in the table given in clause 15(iii). Moreover, the applicant who had already obtained a civil post was not given or conferred with the benefit of Ex-serviceman reservation. Furthermore, the appellant having participated in the selection process in view of the advertisement issued cannot be permitted to challenge the same after he was unsuccessful in getting selected as once a person takes part in the process of selection and is not found fit for appointment, he is estopped from challenging the process of selection. As such, the writ appeal deserves to be dismissed.

Mr. Anand Mohan Tiwari, learned counsel appearing for the Chhattisgarh Public Service Commission / respondent No.2, would submit with reference to definition of term “Ex-serviceman” under Rule 2(c) of the Rules of 1985, the reservation of vacancies under Rule 4 and the proviso thereunder that as per the Rules, benefit is actually intended to be given to those persons who have not obtained any civil employment and the appellant having obtained civil employment against the ex-serviceman category and holding the post of Revenue Inspector, selected and appointed in Ex-serviceman category under the Rules of 1985, is not entitled for selection and appointment on the post of Tahsildar and the writ appeal deserves to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Madhya Pradesh has framed the Madhya Pradesh (Chhattisgarh) Ex-Servicemen (Reservation of Vacancies in the State Civil Services and Posts Class III and Class IV) Rules, 1985, for regulating  the  reservation  of  vacancies in  the State  Civil Services and Posts Class-III and Class-IV for ex-servicemen. The term “Ex-serviceman” has been defined in Rule 2(c) of the Rules of 1985, which states as under: -

“(c) “Ex-serviceman” means a person who has served in any rank (whether as a combatant or non-combatant) in the Armed Forces of the Union including the Joint Armed Forces of the former Indian States, for a continuous period of not less than six months and-

(i) has been released, otherwise than at his own request or by way of dismissal or discharge on account of the misconduct or inefficiency, or has been transferred to the reserve pending such release, or

(ii) has to serve for not more than six months for competing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid,

(iii) has been released at his own request after completing five years service in the Armed Forces of the Union.”

A careful perusal of Rule 2(c) of the Rules of 1985 would show that “Ex-serviceman” means a person who has served in any rank in the Armed Forces of the Union including the Joint Armed Forces of the former Indian States, for a continuous period of not less than six months and has been released, otherwise than at his own request or by way of dismissal or discharge on account of the misconduct or inefficiency, or has been transferred to the reserve pending such release, or has to serve for not more than six months for competing the period service requisite for becoming entitled to be released or transferred to the reserve as aforesaid, has been released at his own request after completing five years service in the Armed Forces of the Union. Such Ex-servicemen will be entitled for the benefit of reservation and other special provisions regarding age limit and educational qualifications prescribed in the Rules. Rule 4(1) of the Rules of 1985 provides for 9% of the vacancies in each of the categories of Class-III posts and of such posts in each Class-III service, and 14% of the vacancies in each of the categories of Class-IV posts and of such posts in each Class-IV service including permanent vacancies filled initially on temporary basis.

The object of reservation of the ex-servicemen is to rehabilitate them after their discharge from the defence services (see Dilwan Singh and others v. State of Haryana and others (1996) 8 SCC 369). Further, object of granting reservation, age relaxation and relaxation in educational qualifications is to compensate the Ex-serviceman by relaxing the upper age limit and educational qualifications at the time of admissions to civil posts and service, to provide opportunities of employment to ex-servicemen who had served the country after their discharge from active service so that they come in the main stream of the society after having been discharged and the purpose is to grant them re-employment. As such, it is quite vivid that once an ex-servicemen joins a job at the State Government or the Central Government holding a civil post against  the  quota  reserved  for  ex-servicemen,  the  object sought by the Rules is achieved and his status of being an ex-serviceman ceases and he is deemed to be a civilian and he no longer remains as ex-serviceman to claim benefits under Rules of 1985 and therefore he cannot derive the benefit of reservation and other benefits reserved for ex-serviceman after having once availed the benefit and privileges, more particularly the benefit of reservation in getting appointment.

However, the State Government on 12-3-2015, in consonance with the circular dated 14-8-2014 issued by the Central Government, issued a circular clarifying that if an ex-serviceman, who has obtained Government job against reserved quota, applies subsequently for another post, then he will not be entitled for the benefit of reservation under the category of ex-serviceman. For ready reference paragraph 3 of the circular dated 14-8-2014 is reproduced herein-below: -

“3. An ex-serviceman at the time of his release or discharge from the armed forces normally applies for more than one vacancy, but in case he/she joins any civil employment due to early declaration of results/selection, he/she is not entitled for the benefit of reservation for ex-servicemen for subsequent employment. It has been brought to the notice of this Department that the aforesaid instructions are affecting the chances of ex-servicemen in the case of direct recruitment for subsequent suitable employment.

The matter has, therefore, been considered in consultation with Department of Ex-servicemen, Ministry of Defence. It has now been decided that if an ex-serviceman applies for various vacancies before joining any civil employment, he/she can avail of the benefit of reservation as ex-serviceman for any subsequent employment. However, to avail of this benefit, an ex-serviceman as soon as he/she joins any civil employment, should give self-declaration/undertaking to the concerned employer about the date-wise details of application for various vacancies for which he/she had applied for before joining the initial civil employment. Further, this benefit would be available only in respect of vacancies which are filled on direct recruitment and wherever reservation is applicable to the ex-servicemen.”

Similarly, circular dated 12-3-2015 issued by the State Government and has been filed by the State / respondent No.1 as Annexure R-1 clearly indicates and clarifies the Rules of 1985 holding that an ex-serviceman having been appointed on the State Civil Services on civil post, in subsequent application for civil post will not be entitled for the benefit of reservation. It states as under: -

As such, on perusal of memorandum dated 14-8-2014 read with circular dated 12-3-2015, it is vividly clear that ex-servicemen, who have been once appointed to any post or service after their retirement against reserved category of ex-serviceman and in Government service, cannot be conferred with the benefit of reservation and cannot claim the benefit of ex-serviceman category for further or future employment, as the rule of reservation will apply only to the post(s) applied prior to joining Government service. More particularly, the appellant herein has not questioned legality, validity and correctness  of  the  notification  dated  12-3-2015  which  is already in force prior to issuance of selection process for the post of Tahsildar for which advertisement was issued on 10-10-2018 vide Annexure P-3.  As such, the appellant is bound by circular dated 12-3-2015 issued by the State Government whereby he is not entitled for the benefit of ex-serviceman having been appointed on the post of Revenue Inspector by availing the benefit of reservation as ex-serviceman as per the Rules of 1985 and at present, in Government service.

A Division Bench of the Karnataka High Court in the matter of The Union of India and others v. Naveen P.N. 2019 SCC OnLine Karnataka 2656 has clearly held that the benefit of ex-serviceman reservation cannot be extended to the ex-serviceman more than one time under Rule 2 of the Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012, applicable therein, and observed as under: -

“13. Admittedly, the respondent-applicant retired and he was discharged from Armed Forces of Indian Navy on 31.08.2014 after completion of satisfactory tenure. The Release Certificate is dated 31.08.2014 issued by the Indian Navy. It is not in dispute that he applied for the post of Junior Engineer (Naval Quality Assurance) and accordingly, the applicant was selected for the said post and he joined the Quality Assurance Establishment, Bengaluru on 18.08.2015. This material aspect would clinch the issue and if the status of the respondent-applicant is examined in terms of the definition of ex-serviceman as contemplated under Rule 2 of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012, the applicant would continue to be an ex-serviceman till he was absorbed in Quality Assurance Establishment, on 18.08.2015. On 18.08.2015, the respondent ceased to be an ex-serviceman, since he was already employed in civil service and is to be treated as a civilian and he would automatically lose the status of an ex-serviceman.

The next question is whether his application seeking employment for the post of Engineer (Marine) is maintainable. On perusal of the material on records, it is evident that an advertisement was published by Directorate of Logistics, Custom and Central Excise in Delhi under Group 'B' Gazetted post and the recruitment was sought to be made on deputation/re-employment basis, since no applications were received for recruitment on deputation basis, recruitment of 100% was made on re-employment basis. As per applicable recruitment rules, all post were to be filled up from amongst eligible "ex-serviceman" when the recruitment is made on re-employment basis. Therefore, in the present case, said post were meant for ex-serviceman only and in that view of the matter, the respondent-applicant would not be eligible for the benefit despite of age relaxation. Since the recruitment is on the basis of re-employment for ex-serviceman and since the respondent-applicant does not satisfy the ingredients of ex-serviceman as defined under Rule 2 of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012, we are of the view that he was not qualified for the above said post and he was in fact not at all competent to participate in the recruitment process.”

At this stage, Mr. Ishan Verma, learned counsel for the appellant, submits that the Punjab & Haryana High Court in Harbhajan Singh (supra) and Bhulla Singh (supra) has clearly held that ex-serviceman can be given the benefit of ex-serviceman quota more than once in subsequent job. A careful perusal of the aforesaid judgment in Harbhajan Singh (supra) and Bhulla Singh (supra) would show that in those cases there was no such policy of the Punjab Government prohibiting ex-serviceman who has already secured civil post under the State against the reserved quota of ex-serviceman. Therefore, the principle laid down in Harbhajan Singh (supra) and Bhulla Singh (supra) would be of no help to the appellant herein and those judgments are clearly distinguishable to the facts of the present case.

Faced with this situation, Mr. Ishan Verma, learned counsel for the appellant, would submit that the executive instructions dated 12-3-2015 would not override the statutory Rules of 1985 and relied upon the decision of the Supreme Court in the matter of G.J. Fernandez v. The State of Mysore and others AIR 1967 SC 1753 and also in the matter of Paluru Ramkrishnaiah and others v. Union of India and another (1989) 2 SCC 541 to support his submission that an executive instruction would not override the Rules of 1985.

In Paluru Ramkrishnaiah (supra), their Lordships of the Supreme Court quoted with approval the principles laid down in the matter of Union of India v. Somasundaram Viswanath (1989) 1 SCC 175 wherein it has been held as under: (SCC p. 180, para 6)

“It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under the proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature, the law made by the appropriate legislature prevails.”

It is well settled that in absence of any legislation on the subject or a rule framed under the proviso to Article 309 of the Constitution of India, it is competent for Government to regulate its public services in the exercise of its executive power. (See Rajendra Narain Singh v. State of Bihar AIR 1980 SC 1246.)

In the matter of A.B. Krishna and others v. State of Karnataka and others AIR 1998 SC 1050, their Lordships of the Supreme Court have clearly held that under the scheme of Article 309 of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of “Doctrine of Occupied Field”. Their Lordships further held that if, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter.

As such, the executive instructions dated 12-3-2015 is in shape of clarification to the Rules of 1985 and it cannot be said that the said executive instructions contravenes the statutory rules framed under the proviso to Article 309 of the Constitution of India. Therefore, the argument in this respect deserves to be rejected.

The next submission raised on behalf of the appellant is that in case of conflict between the statutory rules and the advertisement, the statutory rules will prevail, relying upon the decisions of the Supreme Court in Malik Mazhar Sultan (supra) and Ashish Kumar (supra). It is well settled that where there is variance in the advertisement and in the statutory rules, it is the statutory rules that shall prevail over the advertisement issued and any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription.

In the instant case, the Rules of 1985 providing reservation to the ex-serviceman has been clarified by the executive instructions dated 12-3-2015 that reservation can be availed for the post which has already been applied for even twice, but before joining the Government post. But, in the present case, the appellant after joining the post of Revenue Inspector took permission and applied for another post i.e. Tahsildar seeking the benefit of reservation against the quota reserved for ex-serviceman, and as such, at the time when he applied for the post of Tahsildar after holding the post of Revenue Inspector, he had already ceased to be an ex-serviceman and not entitled for reservation as per circular dated 12-3-2015 and he would not be eligible for appointment as Tahsildar against the quota reserved for ex-serviceman and as such, there is no variance between the Rules of 1985 and the advertisement issued for the post of Tahsildar and there is no inconsistency between the advertisement and the statutory rules and therefore the subsequent advertisement dated 10-10-2018 is in consonance with the Rules of 1985 read with the executive instructions dated 12-3-2015. Therefore, the contention raised in this behalf also deserves to be rejected.

Reverting finally to the facts of the case in light of the aforesaid legal discussion, it is quite vivid that the appellant being an ex-serviceman firstly applied for the post of Revenue Inspector against the quota reserved for ex-serviceman under the Rules of 1985 read with executive instructions / clarification dated 12-3-2015 and to which he was appointed on the post of Revenue Inspector on 5-2-2016. He joined on the said post and is still working on the said post being a regular Government servant and thereafter, again he applied for the post of Tahsildar pursuant to the advertisement dated 10-10-2018 against the quota reserved for ex-serviceman and though he passed the examination, but he was not selected for the said post on the ground that he being an ex-serviceman joined the Government job on civil side after availing the benefit available to him as an ex-serviceman for his re-employment and as such, his ex-serviceman status for the purpose of re-employment in Government has ceased and the appellant having been appointed on the civil post of Revenue Inspector lost the status of ex-serviceman to claim benefit under the Rules of 1985 and becomes a civilian and as such, he cannot be given the benefit of reservation against the ex-serviceman quota again for the second time in light of the Rules of 1985 read with circular dated 12-3-2015 which he has not challenged in the writ petition. In these circumstances, the appellant’s non-selection was justified as he could not claim the benefit of reservation for ex-servicemen in State Government jobs after having availed the benefit of reservation against ex-serviceman and having been appointed on the post of Revenue Inspector on which he is working at present.

In view of the aforesaid analysis, we do not find any merit in the writ appeal and the order of the learned Single Judge is in accordance with law. We have no option except to dismiss the appeal and we hereby direct the dismissal of appeal leaving the parties to bear their own cost(s).