Punjab and Haryana High Court: In an intra-court appeal under Clause X of Letters Patent Appeal challenging judgment dismissing civil writ petition, the Division Bench of Ritu Bahri, ACJ and Aman Chaudhary*, J. considered held that the appellant being a Commissioned Officer of the Military Nursing Service was an ex-serviceman as per the Punjab Recruitment of Ex-Servicemen Rules, 1982.
Background
The Court highlighted that the ordinance dated 15-09-1943 reflected the emergency necessitating the constitution of a force called the ‘Indian Military Nursing Service’, raised and maintained as a part of the Armed Forces of the Union and for service with Military Forces. The members of the service were commissioned rank appointed by the Central Government and liable for service only with the forces and persons subject to the Army Act, 1950, bound to undergo training to perform duties pertaining to Indian Military Forces.
Brief Facts
The appellant was a Commissioned Officer of the Military Nursing Service, governed by the Military Nursing Service Ordinance, 1943. He participated in the selection process and was granted Short Service Commission as a Nursing Officer in the Military Nursing Service for 5 years as reflected in the appointment letter dated 12-08-2013. A notification was published for the appellant and similarly appointed Nursing Officers in the official gazette between 25-07-2015 and 31-07-2015 with the heading ‘REGULAR ARMY’. After 5 years of service, she was released on 4-09-2018 and was paid gratuity as per the entitlement.
Thereafter, she applied for an advertisement issued by the Punjab Public Service Commission for appointment of various posts under the Punjab State Civil Services Combined Competitive Examination 2020, under the category of ‘ex-servicemen’ to take up the preliminary and main examinations. However, her candidature was cancelled stating that she was not covered under the said category.
When her grievance was brought before the Single Judge, she was allowed to participate in the interview process, with directions to keep a post vacant and result in a sealed cover.
Court’s Analysis
The Court considered whether the appellant was an ex-serviceman as per the Punjab Recruitment of Ex-Servicemen Rules, 1982. The Court noted that the conditions for eligibility and benefits regarding reservations were the employer’s prerogative, which was not the Central Government in the instant matter but the Government of Punjab. It further highlighted that the Punjab Government had notified its own 1982 Rules in exercise of powers under proviso to Article 309 read with Articles 234 and 318 of the Constitution of India. The Court explained that the said rules could not be overridden vide administrative instructions of Punjab Government, much less by those of Central Government.
The Court further pointed towards the response of Secretary (Examinations) to Punjab Public Service Commission through an affidavit affirming that they follow 1982 Rules for granting reservation benefits to ex-servicemen as was mentioned in Clause 15.3 of General Information for candidates in advertisement dated 12-12-2020 for recruitment on 75 posts through Punjab State Civil Services Combined Competitive Examination 2020.
The Court further referred to Clause 2(c)(iv) of 1982 Rules which were framed for regulating recruitment of ex-servicemen to State Civil Services and Posts connected with State of Punjab affairs. The Court explained that the said provision expressis verbis revealed that the sole criterion for the same was to be in receipt of gratuity upon release from service and noted that the appellant had complied with the said requirement. The said fact coupled with her appointment under the ordinance, her service being governed by Army Act, 1950, and the gazette notification for ‘Military Nursing Service’ under the heading of ‘Regular Army’ left no doubt against her being covered under the ‘ex-serviceman’ category.
The Court refused to concur with the Single Judge’s decision and held the appellant entitled to be considered as an ‘ex-serviceman’ for the purpose of said recruitment. Therefore, the instant appeal was allowed, the Court directed for granting appointment if she was found to be in merit, and further clarified that she would be entitled to notional benefits of service.
[Capt. Gurpreet Kaur v. Punjab Public Service Commission, 2024 SCC OnLine P&H 328, decided on 3-02-2024]
Judgment by: Justice Aman Chaudhary
Advocates who appeared in this case :
For Appellant: Advocate Navdeep Singh, Advocate Roopan Atwal
For Respondent: Additional Advocate General Saurav Verma, Senior Panel Counsel for Union of India Shivoy Dhir, Advocate M.S. Doabia
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