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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 in relation  to the  out of  date by which an ex-service man who is  not a  graduate can  be deemed  to  be  graduate  on completion of 15 years of service in the Armed Forces.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  Tribunal,  Ernakulam  Bench  (O.S. Nos.542/94 and  622/94) the  Tribunal came to the conclusion that the out of date fixed as 1.8.92 under the advertisement is in  relation to  the educational qualification and not to the requirement  of minimum 15 years of service for an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.