IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 10TH DAY OF DECEMBER 2019 PRESENT THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO.30495/2019 (S-CAT) BETWEEN:
1. THE UNION OF INDIA REP. BY ITS SECRETARY TO MINISTRY OF FINANCE DEPT. OF REVENUE NEW DELHI – 110001 2. THE PRINCIPAL COMMISSIONER DIRECTORATE OF LOGISTICS CUSTOMS & INDIRECT TAXES 4TH FLOOR, ‘A’ WING KHAN MARKET, NEW DELHI – 110 511 3. ADDITIONAL DIRECTOR (MARINE) DIRECTORATE OF LOGISTICS CUSTOMS & INDIRECT TAXES 4TH FLOOR, ‘A’ WING LOK NAYAK BHAWAN KHAN MARKET NEW DELHI – 110 511 ...PETITIONERS (BY SRI B.PRAMOD, CGC) AND:
NAVEEN P.N S/O P.N. NAMBIATHAN NAMBOOTHIRI AGED ABOUT 40 YEARS JUNIOR ENGINEER (NQA) QUALITY ASSURANCE ESTABLISHMENT (WARSHIP EQUIPMENT) IN SHORT QAE (WE) JALAHALLI CAMP ROAD YESHWANTHPUR PO BENGALURU – 560 022 R/AT: P-21/3, CQAE (WE) RESIDENTIAL COMPLEX JALAHALLI CAMP ROAD YESHWANTHPUR PO BENGALURU – 560022 ...RESPONDENT (BY SRI H.BASAVARAJU, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 31.01.2019 [ANNEXURE-A] PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH, BENGALURU IN OA NO.170/01433/2018 AND DECLARE IT TO BE ILLEGAL, ARBITRARY AND UNREASONABLE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 15.10.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:
O R D E R The petitioners are questioning the order dated 31.01.2019 passed by the Central Administrative Tribunal (for brevity referred as ‘CAT’) in O.A.No.170/01433/2018.
2. The case of the respondent-applicant before the Tribunal is that he served as Master Chief Engine Room Artificer II (MCERA II) in the Armed Forces of Indian Navy and he was discharged from the Armed Forces on 31.08.2014 after completion of satisfactory tenure vide Release Certificate dated 31.08.2014. At the time of his retirement, he was holding the rank of MCERA-II with pay scale of PB-2 with Grade Pay of Rs.4,600/-. He applied to the post of Junior Engineer (Naval Quality Assurance) (JE(NQA), Directorate of Quality Assurance (Naval) (DQA(N), New Delhi, under the cadre of Directorate General of Quality Assurance (DGQA) and subsequently he was called for interview for the said post on 16.03.2015 and was selected. The appointing authority having issued the appointment letter dated 24.7.2015 posted him to Quality Assurance Establishment (Warship Equipment) [QAE(WE)], Jalahalli, Camp Road, Bengaluru, and he joined service on 18.8.2015. He utilized the privilege of age relaxation only and has not utilized the benefits available to him as an Ex-serviceman. His further case is that post retirement and before getting employed at the O/o QAE(WE), Bangalore, in response to the employment Notice dated 21.11.2014 he had in fact applied for the post of Engineer (Marine) under Group ‘B’ Gazetted Post. He further contended that the post of Engineer (Marine) which is a Group ‘B’ post does not come under the purview of reservation. The second petitioner having short listed him vide letter dated 15.2.2016 directed him to appear personally for verification of service documents on 3.2.2016. However, the petitioners demanded self declaration which is in contravention of the procedure laid down under DOPT OM dated 3.4.1991 certifying his present employment in lieu of the undertaking dated 1.3.2016.
3. It is the further case of the respondent- applicant that in spite of thorough clarification submitted by him, the concerned Officers insisted him to produce necessary documentary evidence from the present employer i.e. QAE(WE), Bengaluru, to confirm the details of his present employment. However, subsequently he was informed that his candidature is not considered. He again requested to review and consider his grievance. However, the second petitioner vide order dated 21.4.2016 replied that his case has been examined once again and the case stands closed. Being aggrieved by the order passed by the second petitioner, the applicant filed O.A.No.363/2016 before the Central Administrative Tribunal, Ernakulam Bench, which came to be dismissed vide order dated 31.08.2016 for want of jurisdiction and as such the respondent-applicant was compelled to approach the CAT, Bengaluru Bench, by filing O.A.No.975/2016. The Tribunal referring to para 2 of the order dated 10.10.1994 issued by the Government of India, Ministry of Personnel, P.G. and Pensions, Department of Personnel and Training (New Delhi) held that the respondent-applicant is eligible for age relaxation but not reservation as Ex-serviceman. If the applicant is meeting the first consideration, he need not be given the second consideration and therefore will be eligible for consideration for age relaxation, if found suitable for appointment and therefore the Tribunal directed the petitioners herein to consider the case of respondent-applicant within one month in terms of the said order. Accordingly, O.A.No.975/2016 was allowed to the said limited extent vide order dated 09.01.2018. The time granted stood extended on several occasions at the request of petitioners herein for a period of four months and after lapse of five months, the second petitioner served an intimation to the respondent-applicant vide letter/communication dated 6.6.2018 declining his prayer and ignoring the orders of the Tribunal dated 09.01.2018. He therefore submitted another representation dated 25.06.2018 to the second petitioner for review of its decision and consider his candidature but the same was not replied. Hence, the respondent-applicant was constrained to file the present original application in O.A. No.170/01433/2018.
4. The present petitioners on receipt of notice contested the proceedings before the Tribunal and filed reply statement and took a specific contention that since the applicant had already utilized the benefit of his status of ex-serviceman for securing employment with his current employer i.e. Quality Assurance Establishment, Min. of Defence (DGQA), Bengaluru, in term of DOPT OM. dated 02.05.1985 (Annexure-R3 to the OA), he ceases to be an ex-serviceman and as such his candidature was not considered. Therefore, they contended that the present application is not maintainable.
5. In the light of the submissions made by the petitioners, the Tribunal reiterating the mandate issued in O.A.No.170/00975/2016 directed the petitioners herein to give the age relaxation to the respondent-applicant for consideration of appointment to the post of Engineer (Marine) and accordingly, proceeded to record a finding that the Official Memorandum dated 14.08.2014 is to be liberally considered and broaden the opportunities to ex-serviceman to secure employment rather to deny them. The Tribunal also proceeded to hold that in view of 26 vacancies existing for the post sought by the respondent- applicant defies logic as to why they should keep fighting this case unnecessarily. Accordingly, O.A.No.170/01433/2018 came to be allowed. Being aggrieved by the said order, the present writ petition is filed.
6. The contention of the petitioners before this Court is that the benefits available to Ex-serviceman seeking government jobs are (1) age relaxation and (2) reservation for post. It is not in dispute that the respondent-applicant has agreed to take age relaxation as ex-serviceman for his re-employment. In view of Official memorandum No.36034/27/84-Esttt/(SCT) dated 2.5.1985, ‘once’ an ex-serviceman has joined the Government job on civil side after availing of the benefits given to him as an ex-serviceman for the purpose of his re-employment, his ex-serviceman status for the purpose of re-employment in Government ceases and on joining the civil employment, he is deemed to be a civil employee. The petitioners also specifically contended that the method of recruitment as per the notified Recruitment Rules for the post of Engineer (Marine) is “promotion failing which by deputation or re-employment failing both by Direct Recruitment”. Since no candidate in the post of Engineer- Mate, the feeder cadre, was eligible for “promotion”, the second petitioner with the approval of the Ministry advertised for recruitment of Engineer (Marine) on “Deputation or Re-employment” basis. In this context, the petitioners would contend that the respondent-applicant is not at all eligible since he has lost the benefit of reservation under the quota of ex-serviceman in view of securing employment and as such the petitioners were justified in not considering him for the post of Engineer (Marine). The petitioners would also contend that the respondent-applicant has deliberately not submitted the undertakings as required by them since he was already absorbed in civil service. The petitioners on the above said grounds of objections prayed to the Tribunal to reject the application. The Tribunal vide order dated 31.1.2019 has allowed the application on the ground that there are 26 vacancies for the post sought for and as such the petitioners would not be justified in denying the employment to the respondent-applicant. The Tribunal while allowing the application has not at all dealt with the official memorandum dated 14.08.2014.
7. Heard the counsel appearing for the petitioners and the respondent-applicant and on examination of the material on record, the following points would arise for consideration:
1) Whether the respondent-applicant having secured employment in Quality Assurance Establishment, Bengaluru, by availing the benefit of age relaxation given to ex-serviceman would be entitled for appointment in Engineer(Marine) wherein the recruitment is on the basis of the re-employment amongst Ex-serviceman of Indian Navy?
2) Whether the order dated 31.1.2019 passed in O.A.No.170/01433/ 2018 is in contravention of official memorandum dated 14.08.2014, Rule 2 of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012 and also contrary to the earlier order of the CAT passed in O.A.170/ 00975/2016?
8. The material on record would reveal that admittedly the respondent-applicant was selected in Quality Assurance Establishment of Defence, Bengaluru, for the post of Junior Engineer and the Appointing Authority vide Appointment letter dated 24.07.2015 posted the applicant to Quality Assurance Establishment, Jalahalli Camp Road, Bengaluru and he reported to duty on 18.08.2015. From the records it is also borne out that the respondent-applicant post retirement and before he got employed with Quality Assurance Establishment had applied for the post of Engineer (Marine) and the second petitioner on receipt of the application from the respondent-applicant, short listed and the applicant was called for to submit his declaration. The second petitioner having examined the records found that the respondent- applicant was already employed and since he ceased to enjoy the ex-serviceman status, rightly rejected the application of the respondent by order dated 21.04.2016.
9. Being aggrieved by the order dated 21.04.2016 passed by the second petitioner, the respondent-applicant questioned the same before the CAT, Ernakulam in O.A.No.363/2016 which was dismissed for want of jurisdiction and as such, the respondent-applicant was compelled to file O.A.No.975/2016 before the CAT, Bengaluru. On perusal of the order passed by the CAT, Bengaluru, it is found that the Tribunal disposed of the application by holding that the ex-serviceman who has already secured regular employment under the Central Government in a civil post would be only entitled for the benefit of age relaxation as admissible for ex-serviceman for securing another appointment in any higher post or service under the Central government. However, such candidates will not be eligible for the benefit of reservation, if any, for ex-serviceman in Central Government.
10. The aforesaid order passed by the CAT, Bengaluru, has attained finality. The order passed by the Tribunal is in terms of modification of the provisions of the petitioners’ department Official Memorandum dated 02.05.1985.
11. We have also examined the Official Memorandum dated 14.08.2014 which is furnished along with the writ petition. Paragraph 4 of the said Memorandum reads as under:
“4. The matter has, therefore, been considered in consultation with Department of Ex-servicemen, Ministry of Defence. It has now been decided that if an ex-serviceman applies for various vacancies before joining any civil employment, he/she can avail of the benefit of reservation as ex-serviceman for any subsequent employment. However, to avail of this benefit, an ex-serviceman as soon as he/she joins any civil employment, should give self-
declaration/undertaking to the concerned employer about the date-wise details of application for various vacancies for which he/she had applied for before joining the initial civil employment. Further, this benefit would be available only in respect of vacancies which are filled on direct recruitment and wherever reservation is applicable to the ex-servicemen.”
12. On reading of the above memorandum, ex-serviceman once discharged from service, would be entitled for re-employment on two grounds, i) age relaxation and ii) reservation as an ex-serviceman. Who can claim to be an ex-serviceman is also defined under Notification dated 04.10.2012 and the same is extracted hereunder:
“2. In the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, (1) in rule 2, for clause (c), the following clause shall be substituted, namely:-
(c) An ‘ex-serviceman’ means a person – (i) who has served in any rank whether as a combatant or non-combatant in the Regular Army, Navy and Air Force of the Indian Union, and (a) who either has been retired or relieved or discharged from such service whether at his own request or being relieved by the employer after earning his or her pension; or (b) who has been relieved from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (c) who has been released from such service as a result of reduction in establishment;
or (ii) who has been released from such service after completing the specific period of engagement, otherwise than at his own request, or by way of dismissal, or discharge on account of misconduct or inefficiency and has been given a gratuity; and includes personnel of the Territorial Army, namely, pension holders for continuous embodied service or broken spells of qualifying service;
or (iii) personnel of the Army Postal Service who are part of Regular Army and retired from the Army Postal Service without reversion to their parent service with pension, or are released from the Army Postal service on medical grounds attributable to or aggravated by military service or circumstance beyond their control and awarded medical or other disability pension;
or (iv) Personnel, who were on deputation in Army Postal Service for more than six months prior to the 14th April, 1987;
or (v) Gallantry award winners of the Armed forces including personnel of Territorial Army;
or (vi) Ex-recruits boarded out or relieved on medical ground and granted medical disability pension.”
13. Admittedly, the respondent-applicant retired and he was discharged from Armed Forces of Indian Navy on 31.08.2014 after completion of satisfactory tenure. The Release Certificate is dated 31.08.2014 issued by the Indian Navy. It is not in dispute that he applied for the post of Junior Engineer (Naval Quality Assurance) and accordingly, the applicant was selected for the said post and he joined the Quality Assurance Establishment, Bengaluru on 18.08.2015. This material aspect would clinch the issue and if the status of the respondent- applicant is examined in terms of the definition of ex-serviceman as contemplated under Rule 2 of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012, the applicant would continue to be an ex-serviceman till he was absorbed in Quality Assurance Establishment, on 18.08.2015. On 18.08.2015, the respondent ceased to be an ex-serviceman, since he was already employed in civil service and is to be treated as a civilian and he would automatically lose the status of an ex-serviceman.
14. The next question is whether his application seeking employment for the post of Engineer (Marine) is maintainable. On perusal of the material on records, it is evident that an advertisement was published by Directorate of Logistics, Custom and Central Excise in Delhi under Group ‘B’ Gazetted post and the recruitment was sought to be made on deputation/re-employment basis, since no applications were received for recruitment on deputation basis, recruitment of 100% was made on re-employment basis. As per applicable recruitment rules, all post were to be filled up from amongst eligible “ex-serviceman” when the recruitment is made on re-employment basis. Therefore, in the present case, said post were meant for ex-serviceman only and in that view of the matter, the respondent-applicant would not be eligible for the benefit despite of age relaxation. Since the recruitment is on the basis of re-employment for ex-serviceman and since the respondent-applicant does not satisfy the ingredients of ex-serviceman as defined under Rule 2 of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012, we are of the view that he was not qualified for the above said post and he was in fact not at all competent to participate in the recruitment process.
15. The Tribunal has totally given a total go by to the Rules. The reasoning of the Tribunal that on account of vacancy, the respondent-applicant has to be considered for appointment to the post is erroneous and suffers from perversity. The petitioners being the Appointing Authorities have formulated requisite qualifications and eligibility for recruitment of ex-serviceman on re-employment basis. It is prerogative and authority of the employer to lay down certain prescriptions and qualifications and the prescribed qualifications have nexus with the requirements and has to be deemed constitutionally valid unless challenged. In that view of the matter, the reasoning of the Tribunal that the Official Memorandum dated 14.08.2014 is to be liberally considered and broaden opportunities to Ex-serviceman is erroneous and is contrary to the Official Memorandum issued by the petitioners and also contrary to Rule 2 of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012. If any question arise to the interpretation of these rules, the same vests with the Appointing Authority and the Official Memorandum dated 14.08.2014 contemplates the benefit of reservation to ex-serviceman to apply for various examinations / vacancies before joining civil posts. The respondent-applicant having joined the Government job on civil side after availing the benefit of age relaxation, has strangely not submitted self declaration to the concerned employer as required under the Official Memorandum dated 14.08.2014 and adverse inference is to be drawn in that regard.
16. In the light of the above said findings, we answer point No.1 in the affirmative and hold that the respondent-applicant is not eligible for the post of Engineer (Marine), since he ceased to be the ex-serviceman on account of getting an employment with Quality Assurance Establishment, Bengaluru.
17. In view of the findings recorded by us while answering point No.1, we proceed to hold that the Tribunal has not examined the Rules of Ex-serviceman (Re-employment in Central Civil Services and Posts) Amendment Rules, 2012, the earlier order of the Tribunal passed in O.A.No.170/00975/2016 dated 09.01.2018 and admitted set of facts in regard to respondent-applicant having joined the service and as such, the findings of the Tribunal in allowing the original application suffers form serious infirmities and the same is liable to be set aside by this Court and accordingly, point No.2 is answered in the affirmative.
For the reasons stated supra, since the applicant has joined the government job on civil side, his ex-serviceman status for the purpose of re-employment in Government establishment ceases. Accordingly, the writ petition is allowed. The order of the Central Administrative Tribunal, Bengaluru, in O.A.No.170/01433/2018 dated 31.01.2019 is quashed.
Sd/- JUDGE Sd/- JUDGE alb*/CA