Ex-Servicemen status applies to candidates applying after the prescribed service period despite DoPT time-stipulation clarifications.

The Respondent, an Indian Air Force (IAF) medical officer, applied for the post of Professor (Teaching Faculty) at ESIC Medical College while still in service

He was provisionally selected following interviews in October 2018

However, by a communication dated 08.07.2020, ESIC cancelled his candidature on the grounds that he did not fulfill the eligibility criteria for age relaxation as an Ex-Serviceman (ESM)

The Petitioner (ESIC) argued that under DoPT OMs dated 03.04.1991 and 04.03.2019, only personnel applying within one year before completing the "prescribed period" (20 years) of service qualify as ESM

The Respondent had already completed the 20-year period when he applied

The Central Administrative Tribunal (CAT) set aside the cancellation, leading to this writ petition

1. Whether the Respondent qualified as an "Ex-Serviceman" for the purpose of age relaxation despite applying after the completion of the 20-year prescribed service period

2. Whether the direction to appoint the Respondent amounted to an illegal regularization of contractual service in violation of the Uma Devi judgment

The Court applied Rule 5 of the Ex-servicemen Re-employment Rules, 1979, which provides that for Group A and B direct recruitment, the upper age limit shall be relaxed by the length of military service plus three years

It interpreted the Department of Personnel & Training (DoPT) Office Memorandum (OM) No. 36034/2/91-Estt.(SCT) dated 03.04.1991, which clarifies that personnel still in service can apply for civil posts under the ESM category if they are within one year of completing their prescribed service

Additionally, the Court relied on the evidentiary principle from Mohinder Singh Gill v. Chief Election Commissioner (applying Gordhandas Bhanji), which mandates that the validity of a statutory/executive order must be judged solely by the reasons mentioned in the order itself and cannot be supplemented by fresh reasons in subsequent affidavits

The Court rejected the Petitioner's interpretation of the DoPT OMs, holding that the "one-year" rule is a facilitative provision intended to allow serving personnel to seek employment shortly before retirement, rather than a restrictive bar for those who have already completed the minimum prescribed service

Since the Respondent had already served the 20-year "prescribed period" at the time of application, he was fundamentally an ESM and entitled to Rule 5 benefits

Regarding the Mohinder Singh Gill principle, the Court noted that the sole ground for cancellation was the denial of ESM status; since that ground failed, the cancellation was void

Finally, the Court dismissed the Petitioner's reliance on State of Karnataka v. Uma Devi, clarifying that this was not a matter of "regularizing" a contractual employee, but rather enforcing the Respondent’s independent right to regular appointment based on a successful direct recruitment process that predated his stop-gap contractual stint

The High Court dismissed the writ petition and upheld the Tribunal’s decision. Although the Respondent has since passed the age of superannuation for regular service, the Court directed the Petitioner to treat him as a regular employee from the date his peers were appointed for the purpose of pay fixation and re-computation of retiral benefits. All consequential benefits and arrears must be disbursed within four weeks