Inderjit Kaushik vs The Punjab Public Service Commission and Another

S.S. Sandhawalia, C.J.—Whether an Ex-serviceman discharged on fulfilling the conditions of his enrolment under Rule 15(2)(b) of the Air Force Rules, 1939--is within the meaning of a person released on demobilization under Rule 2(d) of the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Non-Technical Services) Rules, 1968, as amended, is the significant and indeed the solitary question in this set of three connected writ petitions.

Learned Counsel for the parties being agreed that the facts and issues of law are closely similar, it suffices to advert to those in C.W.P. No. 5339 of 1981 Inderjit Kaushik v. The Punjab Public Service Commission Patiala and Anr. On his own showing, the Petitioner joined the Indian Air Force on June 19, 1964 as a Corporal and after putting in 15 years regular service, was released on fulfilling conditions of his enrolment with reserved liability for two years, under Rule 15(2)(b). The discharge certificate from the regular Air Force Service issued to him is annexure P/1 to the petition. During his tenure of service, the Petitioner had secured his L.L.B., degree and later enrolled himself as an Advocate in July, 1979. Meanwhile, an advertisement, dated January 20, 1979 was published in the Tribune by the Punjab Public Service Commission for, the holding of a competitive examination for recruitment to the Punjab Civil Service (Executive Branch) and other allied services. The examination was scheduled to be held in September, 1979 though it was later postponed to November 1, 1979., There were in all 64 posts out of which 13 were reserved for the Released Indian Armed Forces, Personnel under the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service (Executive Branch) Rules, 1972. However, as far as allied services are concerned, the admitted position is that the reservation for the posts is done under rules known as Demobilised Armed Forces Personnel (Reservation of Vacancsies in the Punjab State Non-Technical Services) Rules, 1968, as amended,--vide 1st Amendment Rules, 1977 (hereinafter called the Rules). The Petitioner''s claim in that he was entitled for being considered to one of the reserved posts in the P.C.S. (Executive Branch) as well as allied services subject to the condition of passing the competitive examination held by the Commission, Accordingly, in response to the advertisement aforesaid, the Petitioner applied for sitting in the competitive examination and also indicated his preference for the various services therein. Later the Petitioner appeared in the examination held by the Commission in November, 1979, but when the result thereof was published in May, 1980, he did not figure amongst the candidates who had passed the same.

It is the Petitioner''s stand that there is no provision for getting the answer books re-checked to know whether the result has been correctly declared and it was as late as October 1, 1981 that he came to learn from the photo-stat copy of the detailed marks card, annexure P/3, that the Petitioner had obtained more than 45 per cent marks in each paper and was, therefore, entitled to be called for a Viva-Voce examination against the reserved vacancies. On this basis, the Petitioner served a demand notice on Respondent No. 1, vide annexure P/4, which had remained unacknowledged. The Petitioner then preferred the writ petition claiming a mandamus for holding a viva-voca test for him and accordingly recommended him for appointment to one of the reserved posts in the P.C.S. (Executive Branch) or other allied services, according to his merit.

In the return filed on behalf of the Respondent--Public Service Commission, the firm stand taken both by way of preliminary objection and merits is that the Petitioner having been discharged from the Air Force, was not covered by the definition of the Released Indian Armed Forces Personnel, under Rule 2(d) of the Rules. It is highlighted that the Petitioner served in the Air Force on regular basis and was discharged after putting in 15 years'' and 10 days of service and he had not been released on demobilization under the Phased Programme of Demobilization approved by the Government of India, Ministry of Defence. It is clarified that the Petitioner was only allowed to sit in the examination on a provisional basis as some clarifications with regard to the definition of Released Indian Armed Forces Personnel were being made. After a thorough consideration of the matter, the answering Respondent had held that the Petitioner''s case was not covered by the definition. Therefore, his result was not declared along with the successful candidates and consequently there was no question of calling the Petitioner for interview. Respondent No. 2 has taken a stand in line with that by the Respondent-Commission.

As already noticed, the case of the writ Petitioners in C.W.P. No. 4939 of 1981 Manohar Lal v. Punjab State etc. and C.W.P. No. 5516 of 1981 Rup Chand v. Punjab State etc. is identical as both of them have been discharged (after putting in a regular service for a number of years) on fulfilling their conditions of enrolment This judgment will, therefore, govern all these writ petitions.

In a vain attempt to bring the case of the Petitioners within the ambit of Rule 2(d) of the Rules, it was sought to be argued by their learned Counsel that ''Released'' and ''Discharged'' are synony-mous terms under the Indian Air Force Act and the Rules framed there under and consequently even though the Petitioners had been discharged from regular service on fulfilling the conditions of their enrolment they must be deemed to have been ''Released'' as such. The further stand in this context is that despite the fact that the Petitioners had been discharged under Rule 15(2)(b) of the Air Force Rules, 1969, they must be deemed to be ''Released'' on demobilization as spelt in Rule 2(d) of the Rules.

Inevitably, the controversy here revolves wholly around Rule 2(4) of the Rules. It is, however, apt to construe these rules against the backdrop of their legislative history. When originally enacted on June 17, 1968, the rules did not lay down any definition of the Released Indian Armed Forces Personnel. Rules 2 and 3(1) thereof read as under:

Non-technical posts mean all posts under the State Government other than the posts in the Medical and Engineering Services.

3(1) Twenty percent of the non-technical posts to be filled-up through direct recruitment shall be reserved for being filled-up by the Released Indian Armed Forces Personnel who joined service or were commissioned on or after the 1st day of November, 1962, and are released at any time thereafter.

(2) * * *

However, significant and meaningful amendments in both the aforesaid rules were introduced by the (First Amendment) Rules, 1977,--vide notification, dated April 20, 1977, whereby Rules 2 and 3(1) aforesaid were entirely abrogated and substituted as under:

Definition.--In these rules, unless the context otherwise requires:

(a) ''Indian Armed Forces Personnel'' means the Emergency Commissioned Officers, the Short Service Regular Commissioned Officers, the Junior Commissioned Officers, the Non-Commissioned Officers, and other ranks of the Armed Forces of the Union;

(b) ''Non-technical posts'' means all posts under the State Government, other than the posts in the Medical and Engineering Services;

(c) ''release'' (with its grammatical variations means release as per the Scheduled year of release after a spell of services, from the Armed Forces of the Union, but does not include release during or at the end of training, or during or at the end of Short Service Commission granted to cover periods of such training prior to being taken in actual service or release on account of misconduct or inefficiency or at the request of a released Jndian Armed Forces Personnel himself;

(d) ''Released Indian Armed Forces Personnel'' means the Indian Armed Forces Personnel who were commissioned to or who joined the Armed Forces of the Union, as the case may be on or after the first day of November, 1962, but before the 10th day of January, 1968 and who were released on demobilisation thereafter but does not include:

(i) Volunteer Reserved Forces Personnel of the Armed Forces of the Union called upon for temporary service; or

(ii) Indian Armed Forces Personnel who, before their appointment against vacancies reserved under these rules,--

(a) are granted permanent commission; or

(b) joined or join a civil service of the Union or a civil service of a State or ''a civil post under. the Union or a State after their release from the Armed Forces of the Union;

(c) ''Scheduled year of release'' means:

* * * *

3(1) Twenty percent of the non-technical posts to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel.

In the light of the aforesaid amendment and the existing provisions, the twin counter-attack of the Respondent-State against the claim of the Petitioners may be noticed at the out-set. The stand, firstly is, that the Petitioners have been specifically discharged (on fulfilling the conditions of their enrolment) and are, therefore, not within the ambit of the word ''Released''. In the alternative, it is contended that in any case, they have not been released on demobilisation, which is a necessary pre-requisite of the definition under Rule 2(d) of the Rules. In sum, the learned Additional Advocate-General, Punjab, has submitted that discharge on fulfilling the conditions of his enrolment, is a thing apart if not a contradiction in terms with ''released on demobilisation'' from the Armed Forces.

There is patent merit in the forceful and incisive stance taken on behalf of the Respondent-State. Reference in this connection may first be made to sections 22 and 23 of the Air Force Act, 1950, which read as under:

Any person subject to this Act may be retired, released or discharged from the service by such authority and to such manner as may be prescribed.

Every warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother-tongue of such person and also in the English language setting forth--

(a) the authority terminating his service;

(b) the cause for such termination; and

(c) the full period of his service in the Air Force.

Now a plain reading of the aforesaid Sections would indicate that the statute draws clear distinction betwixt the three categories of retirement, release and discharge. Though the language of the Sections itself seems to be unequivocal, yet all doubts, on this point are further set at rest when reference is made to rules 13, 14 and 15 of the Air Force Rules, 1969. Rule 13 separately provides for release from the Air Force, in accordance with the Air Force Rules or in accordance with any orders or the instructions made in that behalf by or under the authority of the Central Government The succeeding Rule 14 deals with retirement of persons subject to the Act and in accordance with the terms and conditions of his service by or under the authority of the Central Government Rule 15 is more detailed to which a table is annexed, and specifies the authorities empowered to authorise ''discharge''. The particular provision under which the Petitioners have been so discharged is spelt out as follows in the said table:

Table missing Page 182 Now the specific language used above has been employed in discharge certificates given to the Petitioners and it would thus be plain that they would come within the ambit of a person discharged, from service. ''Release'' as already noticed is the subject-matter of the specific Rule 13. It would inevitably follow that the Petitioners are persons discharged from the Armed Forces and prima facie not within the ambit of the ''Released Indian Armed Forces Personnel'' in its general sense, far from being so in its more particular sense of having been released on a demobilisation as such.

What next calls for consideration is the factum of "the meaningful change made in the Rules by the amendment in 1977. As already noticed above, the originally enacted Rules 1968 neither contained any definition of the phrase ''Released Indian Armed Forces Personnel'' nor did it particularise the mode of such ''release''. The original Rule 3(1) merely talks of personnel who joined service on Commission on or after the first day of November, 1982 and were released at any time thereafter. By the amendment in 1977, detailed and specific changes were introduced in the Rules by the total substitution of Rule 2. A mere look at it shows the meticulous precision with which new definitions have been inserted-including therein those of the "Indian Armed Forces Personnel" itself, as also of "release" and in greater detail even of the "scheduled year of release." Plainly enough, the vague concept of ''release'' at any time after commissioning on. or after the first day of November, 1962 has undergone a metamorphosis and apart from other changes, the Specific concept of ''released on demobilisation'' has been introduced. Not only that, certain categories of release coming within the ambit have been specifically excluded by Sub-clauses (i) and (ii) to Clause (d) of Rule 2 of the Rules. Clearly enough, the framers of the rules were not indulging in an exercise in futility and obviously intended, to make significant changes by amending the 1968 Rules. The crux of the matter, therefore, is to construe the correct meaning of the phrase ''released on demobilisation''. In Corpus Juris Seconded (Volume 26-A) the meaning attributed thereto is as under:

Demobilization.--In military Law, the dismissal of an army or body of troops from active service,

Again the dictionary meaning of the word is equally a pointer to the same effect. In Webster''s Third New International Dictionary, the meaning of ''demobilization'' is as under:

...the reduction (as of force, equipment or resources) from a war basis to a peace basis, the disarming of troops previously mobilized; release from the armed services.

It would be thus plain that demobilization even if widely ''Construed, cannot become an equivalent of mere retirement on superannuation from defence services. The framers of the Rules deliberately introduced this condition as against a ''release'' simplicities from the Armed Services in the unamended rules. Consequently, a mere discharge on fulfilling the specific conditions of his enrolment in the regular service of the Air Force, in my opinion, cannot, be treated as synonymous with release on demobilisation.

The aforesaid view is further buttressed on a larger perspective of Rule 2(d) of the Rules. The definition does not include within its ambit all and every Indian Armed Forces Personnel, but drastically cuts it down. It first includes only those within its ambit, who were commissioner in the Armed Forces on or after the 1st day of November, 1962 till the 9th day of January, 1968. Clearly, this is related to the proclamation of the emergency made by the President of India under Article 352 of the Constitution on October 26, 1962 in the wake of the Chinese aggression at that time. This had put the country on a virtual war footing which continued for a considerable time and this later merged again with the tension on the western front culminating in the Indo-Pakistan war of 1965. It is in this context that the second date of the tenth day of January, 1968 has relevance. Clearly enough, the definition, therefore, pertains to the Indian Armed Forces Personnel who were mobilised during the declaration of emergency and then demobilised thereafter. The provision was enacted to give benefit to those demobilised consequent upon the reduction of Armed Forces from a war-basis to a peace basis thereafter. A somewhat similar matter had come up before the Full Bench in Dei Chand Phaugat v. State of Haryana 1980 (2) ILR P&H 252, wherein, it was held as under:

To conclude, I am of the view that the volunteers who willingly come forward to render military service, in times of war, and those of emergency form a distinct class and the Respondent-State was fully within its rights to confer the benefits and concessions of the statutory rules on this limited class. The classification rests on a clearly intelligible differentia and has a direct nexus with the object and purpose sought to be achieved by the Rules.

It would appear that therein also the framers of the Rules primarily intended to give the benefit to those valiant volunteers who had willingly answered the call to arms in case of war and emergency and had subsequently been demobilised with the return of normalcy. This view gets added support from the stand of the Respondent-State and the following averment in the written statement:

...The Petitioner had not been released on demobilization under the phased programme of demobilization approved by the Government of India, Ministry of Defence.

In fairness to the learned Counsel for the Petitioners, Mr. R.S. Mongia and Mr. J.L. Gupta, I would notice their stand that ''released on demobilization'' includes within its ambit superannuation discharge, release or dismissal and indeed any mode of going out of the Armed Forces. In essence, it was contended that the word demobilization'' was a mere surplus age and every and any withdrawal from the Armed Forces Personnel, was within the definition. It is not easy to accede to a contention of this kind. This is plainly violative of the settled canon of construction that a meaning must be attributed to every word of the statute unless the strongest reasons point to the contrary. Herein, far from there being any such reason, it is significant that these words along with other significant changes had been deliberately inserted by the Amendment of 1977 in order to deliberately cut down the generality of every kind of release after commissioning as earlier. There is thus no option but to reject the contention of the learned Counsel for the Petitioners.

To conclude, it is held that an Ex-Serviceman discharged on fulfilling the conditions of his enrolment under Rule 15 (2)(b) of the Air Force Rules, 1969 does not come within the ambit of an Indian Armed Forces Personnel released on demobilization under Rule 2(d) of the Rules. The answer to the question, posed at the out-set, is rendered in the negative.

Applying the above, it is plain that the Petitioners would not come within the ambit of Rule 2(d) of the Rules and would consequently be ineligible for the benefits accorded thereby. The Respondents were justified in excluding them from consideration against the reserved vacancies. All the three writ petitions are, therefore, without merit and are hereby dismissed. The parties are, however, left to bear their own costs.

J.V. Gupta J.

I agree.