1. The petitioner, who claims to be an Ex-Serviceman made an application for the post of Clerk-cum-Cashier in response to the advertisement dated 16th April, 1983 (Annexure 'A' to the petition) given in local newspaper by the Regional Recruitment Board (State Bank Group), Ahmedabad (respondent No. 2 herein). The respondents do not dispute that there were 14 1/2 per cent. of the vacancies reserved for Ex-Servicemen and dependents of Ex-Servicemen killed in action/disturbed areas.
2. It appears that the petitioner's application was entertained. He was called for written test, wherein he was declared successful. However, by the impugned letter dated 31st March, 1984 (Annexure 'E' to the petition) the Secretary of respondent No. 2 Board informed the petitioner that he did not conform to the definition of Ex-Serviceman as given in the Ex-Servicemen (Re-employment in Central and Civil Services and Posts) Rules, 1979 (thereinafter referred to as 'the Rules') and, therefore, his application is rejected. Being dissatisfied with the said rejection order, the petitioner has filed this petition.
3. Mr. S. V. Raju, learned Advocate for the petitioner, has raised the following contentions :
(1) The case of the petitioner falls clearly within the definition of 'Ex-Serviceman' given in R. 2(c)(ii) of the Rules and, therefore, the respondents were bound to consider the petitioner under the category of Ex-Serviceman.
(2) The petitioner has been discriminated arbitrarily by not accepting the interpretation of R. 2(c) of the Rules which is applied to other two employees, viz. K. T. Changela and L. B. Singh, who were treated as Ex-Servicemen though they were actually in service.
4. I will consider the second contention of Mr. Raju first. In Para 6(5) of the petition, the petitioner has pointed out instances of the aforesaid two officers as under :
'The petitioner submits that in several instances, the respondents have recruited personnel as 'Ex-Servicemen' although such persons were in active service in the Armed Forces. By way of illustration, the petitioner submits that one K. T. Changela was appointed as Fire Controller by the respondents on 25th August, 1983 and was called for interview on 10th January, 1983 although the date of discharge of said Shri Changela was 31st July, 1983. Similarly, one L. B. Singh was appointed in the reserved category of Ex-Servicemen on 5th August, 1983 by the respondents having been called for interview on 10th January', 1983 although his date of discharge from the Air Force was 31st July, 1983. ....... The petitioner submits that the respondents be called to produce the relevant data pertaining to the recruitment of Ex-Servicemen. The petitioner submits that from the above two illustrations, it is clear that the respondents do not treat the date of the interview as the date for considering whether a person is 'Ex-Servicemen'. The petitioner states that in the case of the petitioner the respondents are arbitrarily and capriciously adopting a different yardstick for deciding whether the petitioner is 'Ex-Serviceman' or not. The petitioner submits that such hostile discrimination is arbitrary and violates the mandate of equality enshrined in Arts. 14 and 16 of the Constitution.'
5. The respondents have not controverted the aforesaid facts by filing an affidavit and, therefore, I shall have to take the said facts at their face value. It is, therefore, evident that on the date of interview both K. T. Changela and L. B. Singh were actually in service. Now, let us consider the facts of the case of the petitioner.
6. The petitioner was appointed on 5th October, 1968 as a Wireless Operator in the Indian Air Force. According to him, a person serving in Indian Air Force is discharged after the expiry of 15 years. Mr. Raju for the petitioner drew my attention to item No. 14 of Discharge Certificate, which reads :
'14. Term of engagement : Fifteen years of regular service.'
The petition appears to have completed 15 years of service on 4th October, 1983. Mr. Raju, therefore, submits that the date of discharge of the petition would be 5th October, 1983. According to the petitioner, he was attested on 24th September, 1970 in the Indian Air Force. Since the petitioner was enrolled in the Indian Air Force on 5th October, 1968, he was not entitled to be continued in service after 4th October, 1983. However, he was continued in service till 31st May, 1984 because of exigency of service and in national interest.
7. The petitioner in response to the advertisement dated 16th April, 1983 (Annexure 'A' to the petition) applied for the post of Clerk-cum-Cashier, reserved for the Ex-Serviceman, and appeared in the written test of respondent No. 2 Board on 21st August, 1983, and was declared successful in the said test by the result declared in the newspaper on 3rd January, 1984. The petitioner was thereafter called for interview on 16th February, 1984, but his application was rejected for the reasons stated in letter dated 31st March, 1984 (Annexure 'E' to the petition) of respondent No. 2 Board.
8. It is true that on the date of interview on 16th February, 1984 the petitioner was not released from service, but his term of 15 years having expired on 5th October, 1983, he can get Discharge Certificate at any time on his request. In the two cases referred to by the petitioner in his petition, same was the position. Both of them were in service on the date of interview and even then they were appointed prior to their actual discharge. If the appointment of the petitioner was made, the petitioner could have asked for his discharge. In my opinion, therefore, there is a clear discrimination in the case of the petitioner. The respondents have not explained as to why they have appointed K. T. Changela and L. B. Singh even though they were in actual service on the date of application and also at the date of their interview. The reason must be that on the date of actual appointment they were not in service. If the petitioner would have been given that opportunity, he would have also asked for his release on request.
9. Mr. Raju has also relied upon the provisions of R. 2(c) of the Rules which deals with the definition of 'Ex-Serviceman'. It reads :
'2(c) 'Ex-Serviceman' means a person, who has served in any rank (whether as a combatant or as a non-combatant) in the Armed Forces of the Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles, Defence Security Corps, General Reserved Engineering Force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation and
(i) xxx xxx xxx(ii) has to serve for not more than six months for completing the period of service required for becoming entitled to be released or transferred to the reserve as aforesaid : (iii) xxx xxx xxx
This definition of 'Ex-Serviceman' is artificial as is evident from Clause (ii) of R. 2(c) of the Rules. A person can be considered to be an Ex-Serviceman if he has served in the Armed Forces of the Union for a continuous period of not less than six months after attestation and has served (to serve ?) for not more than six months for completing the period of service required for becoming entitled to be released. In other words, if a person is in actual service, but is entitled to be released within six months, then he has to be treated as 'Ex-Serviceman'. The reason for introducing such artificial definition is for the benefit of the Ex-Servicemen who are going to be released or retired from service so as to enable them to find out a new job during this period of six months so that they may not remain without job or service. Rule 2(c) of the Rules imposes two conditions so far as this case is concerned, viz. (1) an officer must be in continuous service for a period of not less than six months after his attestation; and (2) for completion of service for becoming entitled to be released the period required is less than six months. In other words, he is entitled to be released within six months.
10. Now, the petitioner was admittedly appointed on 5th October, 1968, and he will be entitled to be released on completion of 15 years i.e. on 5th October, 1983, as averred in the petition. Therefore, the petitioner will be entitled to be considered as 'Ex-Serviceman' six months prior to the date of his entitled release, i.e. on 5th April, 1983. He will thus be Ex-Serviceman on and from 5th April, 1983. It is not disputed that the petitioner was attested on 24th September, 1970. It is, therefore, evident that the petitioner was satisfying both the conditions at the relevant time.
11. The only question, therefore, that arises for consideration is whether the petitioner was entitled to be released on 4th October, 1983. The petitioner has in para 2 of his petition stated that ordinarily he would have been discharged from service after the expiry on 15 years from 5th October, 1968, i.e. on or before 5th October, 1983. Mr. Raju for the petitioner states that sometimes on account of emergency of war etc. though the period of discharge is 15 years, a Sergeant may not be allowed to be released, and that is why he has used the word 'ordinary' in the petition. In para 6(1) of the petition also it has been categorically pointed out that the petitioner was enrolled in the Indian Air Force on 5th October, 1968, and he became Ex-Serviceman within the meaning of Clause (ii) of R. 2(c) of the Rules on 5th April, 1983. The petitioner has also relied on item No. 14 of the Discharge Certificate, referred to above. Since there is no denial to these facts by the respondents by filling an affidavit, for the purpose of this petition I shall have to accept the facts stated on oath by the petitioner in the petition, and on that basis, and having regard to the definition of 'Ex-Serviceman' given in R. 2(c) of the Rules, the petitioner would become Ex-Serviceman on 5th April, 1983, though he may continue in service, if so required by the Air Force Authorities. In my opinion, artificial definition of word 'Ex-Serviceman' is provided in order to help the persons of the Army to enable them to find out a job so that they may not suffer financial difficulties when they actually retire. In this view of the matter, the petition shall have to be allowed, and the decision of the respondents that the petitioner was not Ex-Serviceman at the relevant time shall have to be quashed and set aside.
12. In the result, the petition is allowed. The letter dated 31st March, 1984 (Annexure 'E' to the petition) is quashed and set aside, and the respondents are directed to treat the petitioner as 'Ex-Serviceman' for the purpose of appointment to the post of Clerk-cum-Cashier in pursuance of the advertisement (Annex. 'A') Rule is made absolute with no order as to costs.