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Judgment
Invoking the jurisdiction of this Tribunal under Section 14 of the Armed Forces Tribunal Act 2007, the applicant has filed this 0.A and the reliefs claimed in the 0.A read as under:
(i) Direct the respondents to set aside the cancellation of call up order vide letter No.CA-2/1667/Re-Emp/CU/J-84/Gen dt 27 Sep 2021 by which applicant is sent back from ongoing course and therefore is being denied joining re-enrolment to DSC;
(ii) Direct the respondents to provide re-employment to the applicant for the post of ex-JCOs in DSC to join ongoing course (J-84 course) or to the next course; and
(iii) Pass such other or such further order or orders as deemed fit to this Tribunal in order to secure the ends of justice in favour of the applicant.
The facts of the case briefly stated are that the applicant was enrolled in the Indian Army and after 30 years of colourful service, he was released from service in the rank of Subedar on 31.08.2019. Thereafter, he applied for re-employment in the DSC and his application was accepted vide letter dated 09.11.2019. He was called for selection test vide letter dated 23.10.2020. On 01.08.2021, he got a telephone call from Artillery Centre to report on 04.08.2021. He was selected by his Regiment Centre for re-employment in DSC as Sub (GD) and directed to report at DSC Centre, Kannur on 18.09.2021 or 19.09.2021 for re-employment in DSC and to attend Re-Orientation Training for JCOs Course Ser No 3-84 commencing from 20.09.2021 to 30.10.2021 at DSC Centre, Kannur (Kerala) vide letter dated 17.09.2021. Accordingly, the applicant joined the Re-Orientation Training for JCOs Course Ser No 3-84 commenced from 20.09.2021 to 31.10.2021 as instructed. However, to his surprise, he got cancellation of call up order dated 17.09.2021 due to exceeding two years gap period from the date of retirement as per the policy in vogue. Thereafter, the applicant was issued a show cause notice which reads as under:
SHOW CAUSE NOTICE: JC0
On scrutiny of your application on 2709.2021, it is observed that you are not eligible for re-enrolment into DSC as the gap between your discharge from former service i.e. 31 Aug 2019 and supposed date of re-enrolment into DSC i.e. wef 20 Sep 2021, exceeds more than two years.
You are therefore, required to show cause as to why you should be re-enrolled into DSC without meeting eligibility criteria which is in contravention with the policy laid down vide IHQ of MoD (Army) letter quoted above. If you have any reason or objections, you may reply in writing to the under signed by -4 Oct 2021 failing which it will be assumed that you have no plea to make as you have reported in DSC Centre with intention to get re-enrolment irregularly.
In reply to the show cause notice, the applicant had stated that initially when he got the call letter in 2019, due to Covid-19 pandemic, his selection process got delayed for about two years. That apart, since the delay was due to reasons beyond his control, he sought for condonation of delay on the aforesaid ground. He also made a request in the reply to the show cause notice to permit him to continue the re-orientation course. Annexure A4 (CoIly) are the show cause notice and the reply to the show cause notice. However, the said request of the applicant was not considered favourably by the authorities and the applicant was removed from the training on 28.09.2021, which, according to the applicant, is illegal. Thereafter, though the applicant submitted a representation, when nothing happened, he has invoked the jurisdiction of this Tribunal seeking the aforesaid reliefs. In support of his case, he placed reliance on the judgment by a Coordinate Bench of this Tribunal in the case of Sub Adynath Ghosh (Retd) v. Union of India and others (O.A No. 1051 of 2021 decided on 01.09.2021).
On the other hand, the respondents contended that as per Para 1(b) of the IHQ of MoD (Army) Letter No.B/10185/DSC/MP-3 dated 20.06.2016, the maximum gap between the date of discharge from former service and enrolment into DSC in respect of 3COs and OR will not be more than two years. The applicant was discharged from Regiment of Artillery on 31.08.2019 and completed the two-year gap on 31.08.2021, therefore, according to the respondents, the applicant is not eligible for re-enrolment into DSC.
The issue of cancelling the re-employment of a person with regard to second engagement in the DSC and the disqualification on account of reasons beyond the control of the employee due to Covid-19 pandemic has been the subject matter of consideration of this Tribunal in the case of Adyanath Ghosh (supra), wherein, the issue was discussed in detail in the following manner:
Considering the fact that the only objection raised by the respondents in the counter affidavit is that the applicant was over age and, therefore, he cannot be permitted to participate in the course, we find that the applicant became over age because of reasons beyond his control which were cancellation of the first examination and the pandemic of COVID 2019 which adversely affected certain rights of the applicant in the manner of postponement of course and thereby making him ineligible. There being extra ordinary situation in the matter, the respondents should have risen to the occasion by exercising their discretion, which, prima facie, they have not done.
Taking note of the aforesaid, we direct that subject to final decision of this OA, the respondents shall permit the applicant to participate in the course commencing from 20'Y September, 2021. Taking note of the aforesaid principle and the objection raised by the respondents that at the time when the course was actually commenced, the applicant became over age, which issue already stands concluded by the decision in the case of Adyanath Ghosh (supra), the applicant is entitled to participate in the next course to be commenced.
Viewed thus, the impugned order dated 27.09.2021 is quashed and the respondents are directed to permit the applicant to participate in the next Re-Orientation Training JCOs Course to be commenced from 09.05.2022. With this direction, the O.A stands allowed. No costs.
At this stage, learned counsel for the respondents made an oral prayer seeking leave to appeal to the Hon'ble Supreme Court. As there is said oral prayer is rejected.