Full Judgment Text
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PETITIONER:
MILLS DOUGLAS MICHAEL & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 02/04/1996
BENCH:
G.B. PATTANAIK (J)
BENCH:
G.B. PATTANAIK (J)
AGRAWAL, S.C. (J)
CITATION:
1996 AIR 1905 JT 1996 (4) 189
1996 SCALE (3)393
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
PATTANAIK. J.
Leave granted.
These appeals raise a common question with regard to
interpretation of the advertisement issued for recruitment
to the post of Inspectors of Central Excise, Income-tax etc.
in relation to the out of date by which an ex-service man
who is not a graduate can be deemed to be graduate on
completion of 15 years of service in the Armed Forces.
In the first case which arose out of the judgment of
the Central Administrative Tribunal, Madras Bench (Original
Application No.658 of 1994) the Tribunal came to the
conclusion that since the appellant had not completed the
requisite 15 years of service in the Armed Forces as on
1.8.92 he was ineligible to apply for the post pursuant to
the advertisement in question, and therefore, rightly the
respondents were entitled to cancel the selection made.
In the second case which arose out of judgment of the
Central Administrative Tribunal, Ernakulam Bench (O.S.
Nos.542/94 and 622/94) the Tribunal came to the conclusion
that the out of date fixed as 1.8.92 under the advertisement
is in relation to the educational qualification and not to
the requirement of minimum 15 years of service for an under
graduate ex-defence service personnel and for them if they
would acquire 15 years experience within one year from the
closing date of submission of application then that would be
sufficient to hold the prescribed qualification and with
that conclusion the Tribunal having directed the applicants
before him to be qualified, the Staff Selection Commission
has approached this Court.
The appellant Douglas Michael in the first case applied
for the post of Inspector in Central Excise, Income-tax etc.
The last date for receipt of application was 7.9.92.
Paragraph 10 of the advertisement prescribed the minimum
educational qualification for being eligible to apply reads
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thus:
"10. Educational Qualification:-
Degree of recognized University
or equivalent. Candidates who have
yet to appear at the Degree
examination or whose result has
been withheld or not declared on or
before 1.8.1992 ARE NOT ELIGIBLE.
Ex-service men, who are not
graduates, are deemed to be
graduates on completion of 15 years
of service in the Armed Forces as
per sub-rule 4 of the Rule 6 of the
Ex-servicemen (Re-employment in
Central civil Services and posts)
Rules 1979."
After scrutiny of the application a written examination was
held and the appellant came out successful in the written
examination. The interview was held thereafter in October
1993 and the appellant was declared selected under ex-
servicemen quota for the post of Inspector of Central Excise
and the Selection List was published in the Employment News
of February 1994. While the appellant was waiting to receive
appointment letter, instead he was served with a letter from
the 4th respondent dated 28th March, 1994 informing that his
selection has been cancelled on the ground that he had not
completed 15 years of service in Armed Forces as on 1.8.92
which was the crucial date for educational qualification.
The appellant challenged the same by approaching the Central
Administrative Tribunal, Madras bench and by the impugned
judgment dated 9th November, 1994, the Tribunal having
dismissed the same the appellant has approached this Court.
The respondents in the second case similarly applied
for the recruitment to the post of Inspectors of Central
Excise, Income Tax etc. 1992. They became successful in the
written test and were finally declared to have been
provisionally selected after interview. But as their
candidature for recruitment was cancelled by order dated
28th March, 1994 on the ground that they did not possess the
educational qualification as on 1.8.1992 they also
approached the Central Administrative Tribunal, Ernakulam
Bench and the Tribunal having allowed their applications the
Staff Selection Commission has come in appeal to this Court.
Mr. Raju Ramachandran, the learned counsel appearing
for the appellant in the first case contended, that on a
plain reading of the advertisement it would be apparent that
the cut of date fixed as 1.8.92 in paragraph 10 of the
advertisement is only in relation to the acquisition of the
qualification of a degree of a recognized University. Said
cut of date has no application to acquiring the deemed
qualification after completion of 15 years of service in the
Armed Forces and, the before, the Tribunal wholly erred in
law in applying the cut of date as 1.8.92 even for the
purpose of the deemed qualification on completion of 15
years of service in the Armed Forces. Mr. Ramachandran,
learned counsel further urged that reading Sub-Rule 6 of the
Ex-servicemen (Re-employment in Central Civil Services and
posts) Rules 1979 (hereinafter referred to as ‘Rules’)
together with Note III and the Explanation thereto the
conclusion is inescapable that the necessary qualification
could be acquired within one year from the closing date on
completion of his assignment and, therefore, the Tribunal at
Madras Bench wholly erred in law in upholding the
cancellation of the appellant’s recruitment and in fact the
Tribunal at Ernakulam Bench has rightly interpreted the
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provisions of the advertisement.
The learned counsel for the respondents, on the other
hand contended, that the ex-servicemen under graduate on
completion of 15 years of service in Armed Forces having
been deemed to be a graduate and, therefore, is eligible to
apply for the post and paragraph 10 of the advertisement
having indicated that a candidate should be a graduate of a
recognized University on or before 1.8.92 the conclusion of
the Tribunal at Madras Bench is the only lawful conclusion.
The learned counsel further urged that the Tribunal at
Ernakulam Bench erroneously relying upon Sub Rule (4) of
Rule 6 of the Rules as well as Note III and the Explanation
thereto came to hold that under the advertisement in
question under graduate ex-serviceman could acquire the
deemed qualification of being a graduate within one year
from the last date of the submission of application and the
said conclusion is wholly unsustainable.
Having heard learned counsel for the parties and on
examining paragraph 10 of the advertisement, the question
that arises for consideration is whether the cut of date
indicated in the first part of paragraph 10 would also apply
to the case of an ex-serviceman who is not a graduate but is
deemed to be graduate on completion of 15 years of service
in the Armed Forces in accordance with Sub Rule(4) of Rule 6
of the Rules? For a better appreciation of the point in
issue Sub Rule (4) of Rule 6 of the Rules and Note III and
Explanation thereto is extracted hereinbelow in extenso:-
"4. For appointment to any
reserved vacancy in group "C"
posts, a matriculate Ex-serviceman
(which term includes an ex-
serviceman, who has obtained the
Indian Army Special Certificate of
Education or the corresponding
certificate in the Navy or the Air
Force) who has put in not less than
15 years of service in the Armed
Fores of the Union may be
considered eligible for appointment
to the posts for which the
essential qualification prescribed
is graduation"
"Note III : For any serviceman
of the three Armed Fores of the
Union to be treated as Ex-
serviceman for the purpose of
securing the benefits of
reservation, he must have already
acquired, at the relevant time of
submitting his application, for the
post/service, the status of ex-
serviceman and/or is in a position
to establish his acquired
entitlement by documentary evidence
from the competent authority that
he would be released discharged
from the Armed Forces within the
stipulated period of one year from
the closing date on completion of
his assignment"
"Explanation:
The persons serving in the
Armed Forces of the Union who on
retirement from service, would come
under the category of ex-serviceman
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may be permitted to apply for re-
employment one year before the
completion of the specified terms
of engagement and avail themselves
of all concessions available to ex-
serviceman but shall not be
permitted to leave the uniform
until they complete the specified
term of engagement in the Armed
Forces of the Union."
On a plain reading of the aforesaid advertisement makes it
crystal clear that minimum qualification for the post in
question is a degree of recognized University or its
equivalent and those candidates who either have not appeared
at the degree examination or whose result has been withheld
or not declared, they must pass the degree before 1.8.92.
The aforesaid cut of date has no application for acquiring
deemed qualification of a graduate in case of an ex-
serviceman on completion of 15 years of service in the Armed
Forces. In the case of Rekha Chaturvedi vs. University of
Rajasthan & Others (1993 supp.(3) Supreme Court Cases 168)
this Court has held that in the absence of fixed date
indicated in the advertisement/notification inviting
applications with reference to which the requisite
qualifications should be judged, the only certain date for
scrutiny of the qualifications will be the last date for
making the applications. In view of our conclusion that the
cut of date 1.8.92 has no application to the acquisition to
deemed qualification of a graduate for ex-serviceman on
completion of 15 years of service in the Armed Forces, and
applying the ratio in Rekha Chaturvedi’s case(supra) it must
be held that a candidate who is not a graduate but is an ex-
serviceman must complete 15 years of service by the last
date of receipt of application i.e. 7.9.92 for being
eligible to be considered for the recruitment to the post of
Inspectors in Central Excise and Income Tax etc. 1992. Since
admittedly, the appellant in the first case completed 15
years of service by 31.8.92 he was fully eligible for being
considered and, therefore, the order of cancellation of his
selection is wholly illegal. Accordingly the impugned order
of Tribunal at Madras Bench is set aside and O.A. No. 658 of
1994 stands allowed. The appellant Doglas Michale be allowed
to join the post for which he had been issued a letter of
appointment.
Coming to the second case we are also of the considered
opinion that the Tribunal erred in law in relying upon Note
III and Explanation thereto quoted earlier, to hold that the
eligibility qualification under the deemed provision could
be acquired within one year from the closing date on
completion of assignment. Note III as well as Explanation
thereto is in relation to the eligibility of a person to
apply for re-employment one year before the completion of
specified term of engagement. The said provision has no
correlations with the deemed qualification of graduate on
completion of 15 years of Defence service. The Tribunal at
Ernakulam Bench, therefore, wholly erred in law in extending
the period by which an ex-serviceman could complete 15 years
of service and become eligible for appointment to the post
of Inspector of Central Excise, Income-Tax etc. pursuant to
the advertisement in question. The Tribunal at Ernakulam
Bench has recorded the finding that the applicants therein
who are the respondents in the second case did not complete
15 years of service as Defence personnel by the date of the
submission of application but only completed the same on the
date of interview i.e. in September/October 1993. But
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applying Note III and Explanation thereto held them to be
duly qualified for the purpose on the relevant date. In view
of our earlier conclusion that the deemed qualification of
being a graduate must be acquired on the last date of
submission of application i.e.7.9.92 which, in other words,
would mean that the concerned person must have 15 years of
service in Defence by 7.9.92 for being eligible to be
considered for the post and admittedly, the respondents
having not completed 15 years of service by that date they
were ineligible for being considered and the cancellation of
their provisional appointment, therefore, was in accordance
with law and the Tribunal erred in law in interpreting the
provisions of the advertisement. The said appeals,
therefore, are allowed and O.S. Nos. 542/94 and 622/94 filed
before the Ernakulam Bench stand dismissed. All the appeals
are accordingly allowed, but in the circumstances there will
be no order as to costs.