'Executive Cannot Impose Restriction On Number Of Times An Ex-Serviceman Can Avail Reservation Benefits': Uttarakhand High Court

The Court referred to Section 2(1)(c) of Uttar Pradesh Public Service (Reservation For Physically Handicapped, Dependents of Freedom Fighters and (Ex-Servicemen) Act, 1993 (“the 1993 Act”) which defines 'Purva Sainik' as (i) a domicile of Uttarakhand, who served in Indian Army, Navy or Air Force and who retired from such service, after earning pension; or (ii) released from service on medical grounds or who was released under circumstances beyond his control and was given medical or other eligibility pension; or (iii) who was released from service for reasons other than his own request; or (iv) who was released from service after completing a specific period for reasons other than termination or removal from service and who was paid gratuity.

Noting that benefits conferred to ex-servicemen by a State Legislation cannot be taken away by executive instructions, a Division Bench comprising Justice Manoj Kumar Tiwari and Justice Subhash Upadhyay observed,

“… a “Ex-servicemen” does not cease to be ex-servicemen merely by accepting employment under the State/Central Government. He retains his status of ex-servicemen, even after availing the benefit meant for ex-servicemen, in a selection. In other words, when the Legislation does not impose any restriction regarding the number of times benefit can be availed by ex- servicemen, then such restriction cannot be imposed by executive instructions.”

The Court added, “Clause 8 of Government Order dated 22.05.2020 suffers from vice of artificial classification. Legislation, which covers the field, does not permit classification of Purva Sainik (Ex-servicemen) based on their re-employment status. The definition, as given in the Act, includes all persons within the fold of “Purva Sainik”, who fall in any one of the four categories enumerated in Section 2(c) of the Act. Thus, the classification made by State Government between those who are yet to be appointed vis-à-vis those who are employed by or under the Government, by executive instructions, cannot but be castigated as discriminatory.”

Background

The Court was dealing with a writ petition where the petitioner was an ex-serviceman appointed as an Assistant Teacher in a Government Primary School, on a post reserved for ex-servicemen. Essentially, the petitioner challenged Clause 8 of Government Order dated 22.05.2020, which provided that the benefit of ex-servicemen status would be available only once and if an ex-serviceman obtains civil employment due to his ex-servicemen status, then he would no longer be entitled to such benefit for future employment.

The petitioner challenged the clause on the grounds that the 1993 Act already provided reservation to ex-servicemen in State Services, and therefore, the benefits available to them under the said legislation cannot be restricted or taken away by the State Government merely by a Government Order.

The Division Bench referred to Section 2(1)(c) of the 1993 Act– which defines 'Purva Sainik', and Section 3(1)(i)-- which prescribes reservation in State Services up to 5% of vacancies to 'Purva Sainik' and held,

“There is no provision, either in the definition clause or in other Sections of the Act, which excludes a person from benefits of the Act merely because he secured appointment in State Service with or without the benefit available to ex-servicemen. As per Scheme of the Legislation, an ex-servicemen will remain so, even after getting employment under the State or the Central Government after availing the benefits meant for ex-servicemen.”

Additionally, the Court noted that the 1993 Act was already enacted to provide reservation to ex-servicemen and without amending the said legislation, benefits available to ex-servicemen cannot be curtailed. The Court thus stated,

“Under the Act, Ex-servicemen form a homogeneous class and they cannot be further classified as State Government has attempted to do.”

Allowing the petition, the Court set aside the impugned Clause.

Case Details:

Case Number: Writ Petition Service Bench No. 491 of 2021

Case Title: Dinesh Chandra Kandpal v. State of Uttarakhand & another

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