JUDGMENT D.P. Mohapatra, C.J.
1. The bottom-line question that quintessentially falls for determination by this Bench is whether a candidate, seeking direct appointment on the dint of being 'Ex-serviceman' to a post in Group 'A' and/or Group 'B' Service of the State Government, is required to fulfil the condition of 'at least five-years' military service' as a prerequisite to consideration of his candidature as against the posts reserved for 'ex-service men'? An ancillary question, which arises for consideration in this connection, is whether the prescription of five years' military service vide G.O. dated 28.2.1985 as a condition precedent to claim relaxation in upper age limit prescribed for direct appointment to Group 'A' and/or Group 'B' services of the State Government is equally essential condition for consideration of the candidature of an ex-serviceman against the quota reserved for 'ex-servicemen' and other defence personnel.
2. The question arose in Hari Shanker Upadhyay v. Public Service Commission, U. P. Allahabad and another. Civil Misc. Writ Petition No. 22029 of 1989, in which learned single Judge, reinforced by a Division Bench decision of this Court in Hari Shankar Tripathi v. State of U. P. and others, Civil Misc. Writ Petition No. 1090 of 1990, decided on 7.5.1990, held vide judgment dated 21.5.1991, that in a run-up to appointment against the posts reserved for 'ex-servicemen' at least five years' service in army is imperative. In that case, petitioner Hari Shanker Upadhyay an Army Officer involuntarily discharged from service on medical grounds, took the combined State Service Examination. 1987 conducted by Uttar Pradesh Public Service Commission. Having romped home in the written examination, he was called for interview. On the result of the examination being declared by the Commission, vide communique dated 24.2.1989, the petitioner was declared as a successful candidate, however, qualified with the restraint that the declaration of his result was made as a provisional measure. The petitioner was required to update the Commission with certain documents and after the requisite documents were submitted, the Commission by its letter dated 25.10.1989 communicated to the petitioner that his selection at the Combined Service Commission/Examination, 1987 had been rescinded as he had not discharged five years of service with the Armed Forces. The Commission converged to the view that since the petitioner had not discharged five years of service with the Armed Forces, he was not entitled to be considered for appointment as against quota reserved for 'Ex-servicemen'. It was against the said decision of the Commission that the petitioner Hari Shanker Upadhyaya landed in this Court by filing Civil Misc. Writ Petition No. 22029 of 1989, only to be greeted with dismissal by the learned single Judge vide judgment and order dated 21.5.1991 following decision in Hari Shanker Tripathi's case (supra). On the judgment and order dated 21.5.1991 of the learned single Judge being challenged in Special Appeal No. 40 of 1991, the Division Bench, on consideration of the matter, came to the conclusion that the State Government's Order dated 20.2.1985 only visualised relaxation in the prescribed upper age limit. The Division Bench held that the Public Service Commission fell in error in weeding out the candidature of the petitioner on the ground that he had not put in at least five years' military service and was not entitled to be considered for recruitment as against quota reserved for 'ex-servicemen'. The Division Bench held that the petitioner was entitled to be considered on merits as against the posts reserved for 'ex-servicemen' since he was not claiming relaxation in the upper age limit but in the same breath, the Division Bench reckoned it to be "in the public interest that the decision in this Special Appeal and in the case of Hari Shanker Tripathi be resolved harmoniously by referring the matter of the controversy in the two cases to a larger Bench". Since similar controversy manifested itself in the connected writ petitions which were placed before different Division Benches of this Court, similar orders were passed referring the matter for a decision by Larger Bench and it is in the backdrop of these orders that this Bench was constituted and that is how the matter has waded its way before us. Facts of the case being similar, we proceed to come to grips with the controversy by taking up Special Appeal No. 40 of 1991 as the leading case.
3. It brooks no dispute that the appellant and the petitioners in all these cases did not seek any age relaxation for consideration of their applications for appointment to Group 'A' and Group 'B' services under the State Government. Therefore, the question is whether they are required to fulfil the condition of at least five years' military service for being given the benefit of appointment to a post in the quota reserved for 'Ex-servicemen'. The answer to this question is interwoven with interpretation of the Government Orders dated 20.8.1977 and 28.2.1985 issued by the State Government and their interaction with the letters dated 20.3.1987 and 5.10.1989 of the Joint Secretary, Karmik Anubhag. Uttar Pradesh to the Secretary, Public Service Commission. Uttar Pradesh, Allahabad as well as the provisions of the U. P. (Reservation of Vacancies for Ex-servicemen in Class III and Class IV Services and Posts) Rules, 1977 (for short 1977 Rules) and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 (for short the Act). It is relevant to note here that the term 'ex-servicemen' has not been defined in the aforementioned Government Orders, but Rule 2 (c) of 1977 Rules defines 'Ex-servicemen' to mean "a person who had served in any rank (whether as a combatant or non-combatant in the Armed Forces of the Union for a continuous period not less than six months 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 for 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. Section 2(c) of the Act defines 'Ex-servicemen' as follows :
"(c) 'ex-servicemen' means a person who has served in any rank, as a combatant or non-combatant, in the Indian Army. Navy or Air Force and :
(i) has retired from such service after earning his pension, or
(ii) has been released from service on medical grounds, in accordance with the requirements of such service, or because of circumstances beyond his control and has been granted medical or disability pension, or
(iii) has been released, otherwise than on his own request, as a consequence of reduction in the establishment of such service, or
(iv) has been released from such service after a fixed specified period, but has not been released on his own request or has not been dismissed or discharged on account of misconduct or inefficiency and has been granted gratuity :
and includes the following categories of territorial Army personnel who :
(i) get pension for continuous embodied service,
(ii) have become medically unfit owing to military service, and
(iii) are winners of gallantry award."
4. According to Rule 2 (c) of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, the term 'ex-servicemen' means a person, who has served in any work (whether as a 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 Riffles. Defence Security Corps, General Reserves Engineering Force, 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 at his own request or 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 for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforestated or has been released at his own request, after completing five years' in the Armed Forces of the Union.
5. The Government Order dated 20.8.1977 which deals with reservation of posts in different categories of services under the State Government, in so far as it is relevant, is quoted below :
oxZ&1 izfr'kr oxZ&2 izfr'kr oxZ&3 izfr'kr oxZ&4 izfr'kr 5& lsuk ds fodykax vf/kdkfj;kss rFkk bejtaslh deh'kUM] 'kkVZ lfoZl deh'kUM vQljksa ds fy, 8 8 3 3 The subject-matter of the Government Order dated 28.2.1985 which specifically deals with relaxation in upper age limit for Emergency Commissioned Officers/Short Service Commissioned Officers as well as Ex-servicemen and Commissioned Officers for appointment to Group 'A' and Group 'B' posts by direct recruitment reads:
lh/kh HkrhZ }kjk Hkjs tkus okys lewg ^^d** rFkk lewg **[k** inksa esa fu;qfDr ds fy, vkikrdkyhu deh'ku izkIr vf/kdkfj;[email protected] lsok deh'ku izkIr vf/kdkfj;ksa lfgr HkwriwoZ lSfudksa rFkk deh'ku izkIr vf/kdkfj;ksa dks Åijh vk;q lhek esa NwV fn;k tkukA Paragraph 2 of the said Government Order reads :
^^2**- HkwriwoZ lSfud ds iquZfu;kstu ls lacaf/kr vf/kdkfj;ksa ds dk;Zny dh fofHkUu flQkfj'kksa ij Hkkjr ljdkj }kjk fy;s x;s fu.kZ;
dks n`f"Vxr j[krs gq,] jkT;k/khu [email protected] ij lh/kh HkrhZ }kjk lewg ^^d** rFkk lewg **[k** ij fu;qfDr ds fy, p;ud lacaa/k esa vkikrdkyhu deh'ku izkIr vf/kdkfj;[email protected] lsok deh'ku izkIr vf/kdkfj;ksa lfgr HkwriwOkZ lSfudksa rFkk deh'ku izkIr vf/kdkfj;ksa ds ekeyksa esa Åijh vk;q lhek esa NwV fn;s tkus ds laca/k esa yksd lsok vk;ksx m-iz- ds ijke'kZ ls 'kklu }kjk fuEufyf[kr fu.kZ; fy;s tkrs gSa% ¼d½ lewg ^^d** rFkk lewg **[k** ds inksa esa ftlesa lh/kh HkrhZ izfr;ksxkRed ijh{kk ds vk/kkj ij dh tkrh gS ftlesa fu;qfDr ds fy, lsuk ds vkikrdkyhu deh'ku izkIr vf/kdkfj;[email protected] lsok deh'ku izkIr vf/kdkfj;ksa lfgr HkwriwoZ lSfudkas rFkk deh'ku izkIr mu vf/kdkfj;ksa dh] ftUgksau lsuk esa de ls de ikap o"kZ dh lsok dj yh gks] fu/kkZfjr vf/kdre vk;q lhek ls vf/kdrd ikap o"kZ rd dh NwV lsok dky dks vk/kkj ekudj nh tk;sxhA ;g NwV mu [email protected]/kdkfj;ksa dks Hkh vuqeU; gksxh tks N% ekg dh vof/k esa dk;ZeqDr gksus okys gksa ijUrq fuEufyf[kr dks vuqeU; ugha gksxh% ¼1½ tks dnkpkj vFkok vdq'kyrk ds dkj.k c[kkZLr gq, gks] ¼2½ tks lsuk dh lsok esa voxq.k le>h tkus okyh 'kkjhfjd v;ksX;rk vFkok vLoLFkrk ds dkj.k lsok eqDr gq, gksaA ¼[k½ lewg ^^d** rFkk lewg **[k** ds ftu inksa ij lh/kh HkrhZ izfr;ksxkRed ijh{kk ls vU; izfdz;k ls dh tkrh gS] mu ij vkikrdkyhu deh'ku izkIr vf/kdkfj;[email protected] lsok deh'ku izkIr vf/kdkfj;ksa lfgr HkwriwoZ lSfudksa rFkk deh'ku izkIr vf/kdkfj;ksa dks orZeku esa ykxw vkns'kksa ls fu;qfDr ¼[k½ foHkkx ls dk;kZy;&i= la[;k [email protected]@66&fu;qfDr ¼x½ fnukWad 24 vxLr] 1996 esa izlkfjr fd, x,s Fks ds vuqlkj lsuk esa dh xbZ lsokvksa ds vfrfjDr rhu o"kZ dh NwV vuqeU; jgsxh The English translation of the said letter reads :
"Subject: Relaxation in upper age limits to Emergency Commissioned Officers/Short Service Commissioned Officers with Ex-Servicemen and Commissioned Officers in appointment to Group "A" and Group "B" posts by direct recruitment.
...................................................................................
2. Keeping in view the decision taken by the Government of India on the basis of various recommendations of working groups of Officers pertaining to re-employment of ex-servicemen, the following decision has been taken in consultation with the U. P. Public Service Commission for granting relaxation in upper age limit in making appointment by direct recruitment to Group "A" and Group "B" posts included in the State Government Services/Posts with regard to ex-servicemen including Emergency Commissioned Officers/Short Service Commissioned Officers and Commissioned Officers.
(a) For appointment of Group "A" and Group 'B" post which are filled up by direct recruitment on the basis of competitive examinations Ex-servicemen including Emergency Commissioned Officers, short Service Commissioned Officers of the Army and Commissioned Officers who have put in a minimum service of 5 years in the Army would be entitled to a maximum of 5 years' relaxation in the prescribed maximum age limit, taking the period of service to be the basis. Such relaxations would also be available to such Service men/Officers who would be discharged within a period of 6 months, but would not be available to the following :
(i) who have been dismissed on account of misconduct or inefficiency,
(ii) who have been discharged on the basis of such physical disability or infirmity which is treated to be a disqualification for Army services.
(b) For such Group 'A' and Group 'B' posts in which direct recruitment is made by a procedure other than a competitive examination for the Ex-servicemen including Emergency Commissioned Officer/Short Service Commissioned Officers and Commissioned Officer would be entitled to 3 years' additional relaxations over and above the length of service rendered in the Army under the existing order circulated by Office Order No. 5/1/66-appointment (kha), dated 24.8.1966, issued by the appointment (kha) department."
6. Next we come to the letter dated 5.10.1989 of the Joint Secretary, Karmik Anubhag II, Uttar Pradesh Shashan, in which the Government Order dated 28th February. 1985 has been construed to mean that minimum five years' service is sine qua non for a candidate seeking appointment in Group 'A' and Group 'B' posts reserved for 'Ex-servicemen'. The relevant portion of the letter reads:
fo"k;&lfEefyr jkT; lsok ijh{kk] 1985 o 1987 esa lewg ^^[k** ds inksa gsrq lSU; fo;ksftr vf/kdkfj;ksa lfgr HkwriwoZ lSfudksa ds fy, o vkjf{kr inksa gsrq p;fur vH;fFkZ;ksa Jh vjfoUn dqekj flag ij fd;s x, fujLrhdj.k ds fo:) izkIr izR;kosnuksa ds fuLrkj.k ds laca/k esa egksn;] mi;qZDr fo"k;d vkids i= la-
bZ&[email protected]@27bZ&[email protected]&85 ¼oh-lh-½ fnukWad 18 tqykbZ] 1989 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd pWawwfd 'kklukns'k la[;k [email protected]@81&dk&2] fnukWad 28 Qjojh]1985 esa de ls de 5 o"kZ dh lsok okys lSU; fo;ksftr vf/kdkfj;ksa dks gSA fu/kkZfjr vf/kdre vk;q lhek ls vf/kdru 5 o"kZ rd dh NwV fn;s tkus dk izko/kku gS] vr% mlh dks vk/kkj ekudj 5 o"kZ ls de dh lsok okys lSU; fo;ksftr vf/kdkfj;ksa dks vkjf{kr inksa dk ykHk ughs fn;k tk ldrk gSA pWWawfd Jh vjfoUn dqekj flag dh lSU; lsok dsoy 3 o"kZ 14 fnu dh gS vr% mudks HkwriwoZ lSfud ekurs gq, vkj{k.k dk ykHk ugha fn;k tk ldrk gSA**
7. In this connection the learned standing counsel brought to our notice a letter dated 20.5.1987 from Joint Secretary, Karmik Anubhag-2. Uttar Pradesh Shashan in which it has been generally stated that in order to claim a post reserved for 'Ex-servicemen' in Group 'A' and Group 'B' services, the candidate must satisfy the precondition of at least five years' military service. The letter reads as under:
^^lsok esa] lfpo] yksd lsok vk;ksx] m-iz-]bykgcknA fo"k;% 'kklukns'k la-
[email protected]@1981&dkfeZd&2] fnukWad 28 Qjojh] 1985 ds lanHkZ esa HkwriwOkZ lSfudksa dh ifjHkk"kkA egksn;] mi;ZqDr fo"k;d] dSEi y[kuÅ ls izf"kr vkids i= la- 'kwU; fnukWad 7 ebZ] 1987 ds lanHkZ esa eq>s ;g dgus dk funZs'k gqvk gS fd iz'uxr 'kklukns'k esa vk;q lhek rFkk lsokdky dk Li"V rkRi;Z ;g gS fd 'kklukns'k esa bafxr ftu lSU; fo;ksftr vf/kdkfj;ksa lfgr HkwriwoZ lSfudksa esa de ls de ikap o"kZ dh lSU; lsok iwjh dj yh gks mUgsa vf/kdre vk;q lhek ls ikap o"kZ rd dh NwV vuqeU; gksxhA** ikap o"kZ rd dk rkRi;Z ;g gS fd fdlh vH;FkhZ ds ekeys esa vk;q lhek rhu o"kZ de gks jgh gksxh] fdlh ds ekeys esa nks o"kZ vkSj fdlh vU; ds ekeys esa ,d ;k pkj o"kZA vr% vko';drkuqlkj vf/kd ls vf/kd ikap o"kZ rd dh NwV nh tk ldrh gSA tgka rd lewg ^^x** rFkk ^^?k** ds fy, N% ekl gh lSU;
vof/k dk lEcU/k gS] ;g ;Fkkor ykxw gS] fdUrq lewg ^^d** rFkk ^^[k** ds lanHkZ esa HkwriwoZ lSfud os gh ykHk ik ldsaxaas ftUgksaus de ls de ikap o"kZ dh lSU; lsok dh gksA g-ts-Mh-iqjh] la-
lfpoA**
8. The question that arises for consideration is whether these letters have correctly interpreted and construed the Government Orders, dated 20.8.1977 and 28.2.1985 referred to above? On a fair reading of the Government Orders, dated 20.8.1977 and 28.2.1985, it is manifest that the subject-matter dealt with in the two orders are distinct and separate. In the former, the matter of reservation of posts for 'ex-servicemen' and other categories of persons in Class-I, Class-II, Class-III and Class IV services of the State Government is dealt with whereas in the latter Government Order, the matter dealt with relates to relaxation in the prescribed upper age limit for 'ex-servicemen' and other personnel of Armed Forces. Significantly enough, in the former there is no mention whatsoever of any period of military services to be put in by an applicant claiming appointment to a post reserved for 'ex-servicemen' etc.; but in the latter Government Order a condition precedent is laid down that a candidate claiming relaxation in upper-age limit must have put in at least five years' military service and the maximum period of relaxation as provided is five years. As noted earlier, in neither of the two Government Orders the term 'ex-servicemen' has been defined or explained. In the circumstances, in our considered view it is neither fair nor reasonable to import the condition of five years' military service into the Government Order dated 20th August, 1977 in respect of candidates falling under item No. 5 of the said Government Order. If such were the intention of the State Government, nothing prevented it from specifically making a provision to this effect in the Government Order itself. In the latter Government Order while making provision for relaxation of the upper age limit in Group 'A' and Group 'B' services of the State Government, the State Government specifically incorporated the condition of five years' military service as a condition precedent to be satisfied in order to claim relaxation in the upper age limit--subject to the maximum of five years. It is clear to us that for claiming a post in the quota reserved for 'ex-servicemen' and other defence personnel, no specific period of military service is required as eligibility condition. All that is required to be fulfilled by the candidate is that he is either ex-serviceman or belongs to any other category of officers mentioned at item No. 5 of the Government Order, dated 20.8.1977, but if such a candidate also seeks any relaxation in the upper age limit, he has to fulfil the condition of minimum five years' military service before his candidature is considered for appointment as against reserved quota. This view gets fortified from the definition of the term 'ex-servicemen' in 1993 Act in which no minimum period of military service is specified for enabling an 'ex-serviceman' to get the benefit of the provision regarding reservation of vacancies/posts for 'ex-service men'. In the statute coming more than six years after the communication dated 5.10.1989, the omission could have easily been provided in the definition of the term 'ex-servicemen' if the letters dated 20.5.1987 and 5.10.1989 had the purport and import sought to be put upon them by the counsel for respondents.
9. In the case of Hari Sankar Tripathi (supra), the Division Bench relying upon the letter dated 5.10.1989 and the definition of the term 'ex-servicemen' in the Central Rule, 1979 held the view that completion of not less than five years' Army service was necessary requirement for claiming five years' relaxation in upper age limit prescribed for appearing in the examination, and that there was nothing wrong on the part of the State Government for having adopted and applied the principle for claiming post/service against the quota reserved for 'ex-servicemen'. The question, therefore, is whether it can be said that the State Government has adopted and applied the requirement of five years' minimum military service visualised by the Government Order, dated 28.2.1985 as a condition precedent to seeking consideration of candidature of 'ex-servicemen' for appointment on a post in the reserved quota in Group 'A' and Group 'B' services under the State Government. On a bare reading of the letter dated 5.10.1989, it is clear to us that it was written by way of clarification of certain doubts about the question of claim of certain individuals who had applied for appointment in reserved quota in Group 'A' and Group 'B' posts through recruitment examination. The letter dated 5.10.1989 does not show, and no other material has been produced before us by the State Government or the Public Service Commission to show, that it was issued as a Government Order in the manner prescribed by Article 166 of the Constitution of India. The said letter as also the letter dated 20.3.1987 are merely departmental correspondence. It was not disputed before us that the Government Orders, dated 20.8.1977 and 28.2.1985 were issued in the manner prescribed by Article 166 of the Constitution of India and have the force of law being not in conflict with any statutory rules in the same field. If it was intended by the State Government that the Government Orders aforestated should be amended or modified so as to include the condition of at least five years' military service as a condition of eligibility for direct recruitment to a post in the quota reserved for 'ex-servicemen' in Group 'A' and Group 'B' services of the State Government, then a properly constituted Government Order following the procedure prescribed in Article 166 of the Constitution should have been issued. No Officer of the Government is empowered to add to or amend a Government Order while answering a query of a departmental authority on the question. In this view of the matter, no assistance can be drawn from the letters of the Joint Secretary dated 20.5.1987 and 5.10.1989 addressed to the Secretary of the Public Service Commission for determination of the question.
10. On the foregoing discussions, we are clearly of the view that Hari Shankar Tripathi's case was not correctly decided. The Division Bench in the present case was right in taking the view that if a candidate "is accepted as an ex-serviceman, then, inevitably whatever quota stands reserved for ex-servicemen from the Armed Forces, he receives the benefit of it." In other words, it was rightly held that for the purpose of claiming a post in the quota reserved for 'ex-servicemen', five years' minimum military service is not necessary and that fulfilment of such a condition is necessary only if the candidate seeks relaxation in the upper age limit prescribed for the purpose. Though the Division Bench also held that the condition of six months' military service after attestation is to be satisfied as a condition precedent for claiming consideration of candidature as against a post reserved for 'ex-servicemen', we are of the view that in view of the definition of the term 'ex-service men' as contained in the Act, six months' service after attestation is not a necessary condition of being an ex-serviceman from the Armed Forces. The requirement of six months' service after attestation, as noted earlier, is prescribed in the Central Rule which has no application to recruitment on posts in State services.
11. The question formulated earlier is answered in the manner aforesaid. All the cases, including Special Appeal No. 40 of 1991 will now be placed before the appropriate Bench for disposal in the light of this judgment and in accordance with law.