Chaturbhai Karshanbhai Devadiya vs State of Gujarat and Others

Abhilasha Kumari, J.—Rule. Mr. Maulik G. Nanavati, learned Assistant Government Pleader, waives service of notice of Rule on behalf of the Respondents. On the facts and in the circumstances of the case and with the consent of the learned Counsel for the respective parties, the petition is being heard and finally decided, today.

This petition, under Article 226 of the Constitution of India, has been filed with the following prayers:

(A) Your Lordship be pleased to admit this petition.

(B) Your Lordship be pleased to quash and set aside the impugned order passed by the Respondent No. 4 dated 13.09.2010 (Anx.E) and be pleased to direct Respondent Authority to consider in Ex-servicemen category in Lokrakshak in Gujarat State Police Force in the interest of justice.

(C) Your Lordship be pleased pending admission and final hearing and final disposal of this petition pleased to direct to Respondent authority to permit in oral interview on the basis of Ex-servicemen Certificate and also be pleased to direct Respondent Authority to consider the Petitioner as Ex-Servicemen in Lokrakshak in Gujarat State Police Force and direct the Respondent authority to reserve seat for Petitioner in Lokrakshak in the interest of justice.

(D) Your Lordship be pleased to grant such other and further relief(s) as deem fit to grant in the interest of justice.

Briefly stated, the case of the Petitioner is that he is an ex-serviceman, having worked in the Armed Forces of the Union for a period of ten months and six days. Respondent No. 3, Additional Director of Police, issued an advertisement for filling up the posts of Lok-Rakshak in the Gujarat State Police Force, a copy of which is annexed as Annexure-A to the petition. Pursuant thereto, the Petitioner applied in the category of "ex-serviceman". After scrutiny, the Petitioner received a Call Letter for the physical test, in which he was successful. Thereafter, the Petitioner was called upon to appear for the written examination. The Petitioner appeared in the said examination, and was successful. However, the Petitioner was not permitted to participate in the oral interview on the ground that, after scrutiny of the documents submitted by him, it came to light that the Petitioner has not served for a continuous period of not less than six months in the Armed Forces of the Union, "after attestation", as required by the Gujarat Civil Service (Reservation of Vacancies for Ex-Servicemen in Class III and Class IV Posts and Service) Rules, 1975 ("the Rules" for short). Aggrieved thereby, the Petitioner has approached this Court by filing the present petition.

Mr. V.H. Nangesh, learned advocate for the Petitioner, has submitted that the Petitioner has served in the Armed Forces of the Union for a total period of ten months and six days, which is more than the requirement of six months as per the relevant Rules. That the Petitioner has been given a certificate showing his status as that of an ex-serviceman, on 16.11.2006 and 08.02.2007, by the Indian Army, which shows that the Petitioner is an ex-serviceman and is eligible to be called for the interview. Lastly, it is contended that in the advertisement, there is no such condition that continuous service for a period of six months in Armed Forces of the Union should have been rendered after attestation, therefore, this condition cannot be imposed upon the Petitioner and, as such, the impugned order dated 13.09.2010, by which the Petitioner has not been permitted to appear in the interview ought to be quashed and set aside, being illegal and arbitrary.

Mr. Maulik G. Nanavati, learned Assistant Government Pleader for the Respondents, has submitted that Rule 2(c) of the Rules stipulates that in order to be an ex serviceman, the person has to serve in the Armed Forces of the Union for a continuous period of not less than six months, after attestation. A copy of the discharge-book of the Petitioner reveals that no attestation has taken place in the case of the Petitioner. It is further submitted that the communication dated 16.11.2006, which is being referred to as a certificate showing that the Petitioner is an ex-serviceman is, in fact, not a certificate but the Petitioner has been asked by the concerned office to return the old discharge certificate before any discharge certificate for ex-serviceman status can be issued. It is further pointed out by the learned Assistant Government Pleader that the communication dated 06.02.2007 also, is not a certificate showing that the Petitioner is an ex serviceman. This communication advises the Petitioner to return the old discharge certificate before any discharge certificate for the status of ex-serviceman can be issued. In the light of the above two communications, it is contended by the learned Assistant Government Pleader that, in fact, the Petitioner has no valid discharge certificate from the Armed Forces of the Union. It is reiterated that, in any case, the Petitioner has not rendered six months'' continuous service after attestation, as per the requirement of the relevant Rules, therefore, the impugned communication has been rightly issued.

Having heard the learned Counsel for the respective parties and upon perusal of the averments made in the petition and documents annexed thereto, the following aspects emerge for consideration.

It is not disputed that the service record of the Petitioner reveals that no attestation has taken place in his case. This is clear from the service particulars of the discharge-book, produced at running page-29 of the paper-book.

Rule 2(c) of the Rules, being relevant to the case of the Petitioner, is reproduced herein below:

2(c) "Ex-serviceman" means a person who has served in any rank (whether as combatant or as non-combatant), in the Armed Forces of the Union, including the Armed forces of the former Indian States but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Force, Jammu and Kashmir Militia, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation, and

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

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

It is clear from the above that the Petitioner, in order to be considered an ex serviceman, has to serve in the Armed Forces of the Union for a continuous period of not less than six months, after attestation. Admittedly, as no attestation has taken place as per the discharge-book of the Petitioner, the period of ten months and six days of service rendered by him in the Armed Forces of the Union is not attested. Therefore, the Petitioner does not meet with the requirement of Rule 2(c) in order to be considered in the category of "ex-serviceman".

It has been submitted by the learned advocate for the Petitioner that the Petitioner is receiving disability pension from the Indian Army which would also go to show that the Petitioner is an ex-serviceman. The Petitioner has been released from the service by the Indian Army, having been invalidated by the Medical Board, and as per Rules applicable to the Armed Forces of the Union. If an amount of disability pension is being received by him, that would not confer the status of ex-serviceman upon the Petitioner if he otherwise does not fulfil the criteria as laid down in the Rules.

It has also been contended by the learned advocate for the Petitioner that the advertisement does not contain any stipulation regarding six months'' continuous service after attestation, in order to be considered in the category of ex serviceman. In the considered view of this Court, the Rules would govern the advertisement and not vice-versa. The eligibility of the Petitioner is to be seen with regard to the relevant Rules and the advertisement is only a publication inviting applications from persons who are eligible to be considered for appointment to the post of Lok-Rakshak in the concerned Department.

It is clearly mentioned in the impugned order dated 13.09.2010 that the Petitioner is not being permitted to participate in the oral interview on the ground that he has not served for a continuous period of not less than six months "after attestation" in the Armed Forces of the Union. The record reveals that the service of the Petitioner has not been attested, therefore, no fault can be found with the impugned order which does not suffer from any infirmity or illegality so as to warrant interference.

Lastly, it clearly transpires from the record that the submission made by the learned advocate for the Petitioner that the Petitioner has been given a certificate to the effect that he is an ex-serviceman, is not borne out from the documents annexed at running pages 17 and 18 of the paper-book. By the said communications dated 06.02.2007 and 16.11.2006, the Petitioner has been asked to return the old discharge certificate before a discharge certificate for the status of "ex-serviceman" can be issued to him. From these documents it is clear that no certificate conferring the status of ex-serviceman has been issued to the Petitioner.

As noted above, the service rendered by the Petitioner in the Indian Army is not attested and neither does he possess the certificate of "ex-serviceman". As the requirement of the Rules are not complied with, no plausible ground exists warranting interference by this Court.

Viewed from all angles, there is no merit in the case of the Petitioner. The petition deserves to be dismissed. It is, accordingly, dismissed. Rule is discharged. There shall be no orders as to costs.