Court No. 45 Reserved
Case :- SPECIAL APPEAL No. - 645 of 2019 Appellant :- Bhanu Pratap Singh Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Siddharth Khare,Sri Ashok Khare Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Pankaj Kumar Shukla Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
(Delivered by Hon'ble Piyush Agrawal, J) The present appeal has been filed against the order dated 19.4.2019 passed by learned Single Judge in Writ-A No. 5657 of 2019 dismissing the petition of the appellant.
Heard Mr. Ashok Khare, learned senior counsel assisted by Mr. Siddharth Khare, learned counsel for the appellant, Mr. Gyanendra Srivastava, learned Standing Counsel for respondent No. 1, Mr. Abhishek Srivastava, learned counsel for respondent No. 2 and 3 and Mr. P.K. Shukla, learned counsel for the respondent No. 4.
The brief facts of the case are that an Advertisement No. 05/VSA/2017/JE was issued by Electricity Service Commission, inviting applications for filling up posts of Junior Engineer-Electrical (Trainee) in U.P. Power Corporation Limited and U.P. Power Transmission Corporation Limited.
In the said advertisement the last date for submission of application form was 31st October, 2018. The applicant submitted his application in response to the said advertisement and claimed the benefit of horizontal reservation of ex-serviceman category.
The appellant was allotted his Roll No. as 20041600322. The written examination was held, result was declared and thereafter the appellant participated in document verification on 29.10.2018. The final result of selected candidates were published but the Roll No. of the appellant was not reflected in it.
Thereafter, the appellant filed an application under Right to Information Act, 2005, requisite information was communicated to him on 13.12.2018. It is stated that the appellant has submitted his application under the category of ex-serviceman and that till 31.10.2017 he had not retired.
The appellant challenged the action of the respondent by means of Writ-A No. 5657 of 2019 which was dismissed with observation as under:
"8. Argument advanced by Sri Khare that petitioner had retired from Indian Army on 30th November, 2017 would not be relevant, inasmuch as, the last date for making of application was 31st October, 2017, by when petitioner was in active service of the Indian Air Force, as is clearly admitted in paragraph 3 of the writ petition.
9. Law is settled that it is on the last date of making of application that the eligibility of a person would have to be examined. Once it is found that petitioner was in active service of Indian Air Force, he would not be covered within the meaning of 'ex-serviceman' as per the definition contained under the Act of 1993 on the last date of making of application for employment. There would thus be no illegality in the action of the State in refusing to accord consideration to petitioner's claim in the category of ex-serviceman."
Feeling aggrieved by the said order the present appeal has been preferred by the appellant.
Learned counsel for the appellant submits that, the appellant has duly been discharged from service within the period of six months from the last date of submission of application form and therefore he was eligible for consideration in the selection in question.
On perusal of the documents on record we are of the opinion that the reservation for ex-serviceman in employment of State is governed by the provisions of Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993.
The ex-servicemen who are entitled to reservation under the aforesaid Act, are defined under Section 2(c) of the Act, 1993.
The learned Single Judge in his order has observed in para 6 as under:
".....As per definition of ex-serviceman contained under Section 2(c), the ex-serviceman would be a person who has served in any rank in the Indian Army, Navy or Air Force and has retired; or has been released from such service on medical grounds; or has been released, otherwise than on his own request; or has been released from such service after a fixed specific period; and includes the categories of territorial Army personnel who get pension for continuous embodied service and have become medically unfit; and are winners of gallantry award."
The Section is very clear and confined to the person who are no longer in employment of the Indian Army, Navy, Air Force or the Territorial Army. Once the benefit is claimed under the Act of 1993, the definition of ex-servicemen as is contained in Section 2(c) of the Act, 1993 alone, would be relevant for the purpose of determining the appellant's entitlement.
Admittedly, on the last date of submission of form i.e., 31st October, 2018, the appellant was in active service of Indian Air Force. Hence it cannot be said by any stretch of imagination, that the appellant was an ex-serviceman.
In view of the said fact, the view taken by the learned Single Judge is absolutely correct and is in accordance with law.
Hence, no interference is called for in the judgment of the learned Single Judge and the present appeal is, accordingly, dismissed.
Order Date :- 22.8.2019 SY