HARBHAJAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner passed the LL. B. examination of the Punjab University in the First Division in the year 1962 and started practising as an Advocate at Sangrur. He responded to the call of the nation and joined the Army as a Commissioned Officer in July 1963. He was released from the Army on 1-8-1968. He resumed practice as an Advocate at Dassuya. He was selected as an Assistant at District Attorney and worked in the capacity from September 1970 to May 1975. In December 1973, he appeared at a competitive examination held by the Punjab Public Service Commissioner for recruitment to the Punjab Civil Service (Judicial Branch). Ten posts had been advertised, of which two were reserved for released personnel of the Armed Forces. The results of the examination were published in May 1974. The petitioner was placed at No. 82 in the general order of merit. He was No. 2 in the order of merit in so far as it related to released Armed Forces Personnel. One Sampuran Singh who was placed at No. 34 in the first successfully claimed that he also belonged to the category of released. Armed Forces Personnel, in a writ petition filed by him. The result was that the petitioner was relegated to the third place in the category of released Armed Forces personnel. Though the number of posts advertised originally was only ten, it is now not disputed that in addition to the ten originally advertised, fifteen more posts have been filled up from the non-Armed Forces Personnel category. The petitioner claims that the number of posts reserved for released Armed Forces Personnel should correspondingly be increased by another three and that he should be appointed to one such post. The answer of the respondent is that the Demoblised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Service (Judicial Branch) Rules, 1969, have been repealed and the Demoblised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Services (Judicial Branch)Rules, 1975, as amended, which are now in force, excluded from the category of released Armed Forces Personnel, persons who have joined a civil service of the Union of a State or a civil post under the Union or a State after their release from the Armed Forces of the Union.

(2.) At the competitive examination held in December 1973 three candidates Shri R. N. Moudgil, Shri Sampuran Singh and Shri Harbhajan Singh (petitioner) belonging to the category of released Armed Forces Personnel came out successful. Under the rules, which were in force at that time, all the three were eligible to be appointed-in fact it was only on that basis that they were allowed to appear at the examination-depending upon the vacancy-position. The rules, which were then in force ceased on 14-9-1974 and new rules came into force with effect from 15-9-1974. Rule 5 of the 1975 Rules provided that no released Indian Armed Forces Personnel shall be eligible to compete for the reserved vacancies unless he possessed the educational and other qualifications prescribed in the Punjab Civil Service (Judicial Branch) Rules, at the time of joining the pre-commission training or at the time of getting the commission where there is only post-commission training. Had the rule been in force in 1973, Shri Mudgil would not have been eligible to appear at the competitive examination which was held in December 1973 but since the 1975 Rules did not apply to the examination held in 1973. Shri Moudgin was in no way affected by the making of the 1975 Rules. Nonetheless Shri Moudgil was not appointed to the Service and he, therefore, filed C. W. P. No. 1464 of 1976.* After notice of motion had been issued and after the State Government had taken repeated adjournments on one pretext or the other, R. 1(2) of the 1975 Rules was amended so as to say that the Rules was amended so as to say that the Rules should be deemed to have come into force on 15-9-1969. Another rule which was amended along with R. 1(2), was R. 3(iii)(cc) by which, among other things, it was provided that released Indian Armed Forces Personnel did not include Indian Armed Forces Personnel who, 'before the appointment against vacancies reserved under the rules, joined or join a civil service of the Union or a civil service of a State or a civil post under the Union or a State after their release from the Armed Forces of the Union.' In the writ petition filed by Shri Moudgil, this Court struck down Cls. (2) and (5) of the Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab) Civil Service (Judicial Branch)(First Amendment) Rules, 1976. Rule 3(iii)(cc) was not in question in that writ petition.

(3.) It was the contention of the State Government that the new definition of released Armed Forces Personnel introduced by the 1976 amendment disentitled the petitioner from being appointed to the Punjab Civil Service (Judicial Branch) as he had accepted employment as Assistant District Attorney from September 1970 to May 1975. The argument of the learned counsel for the petitioner was that Clause (2) of the notification introducing the amended rules and making them effective from 15-9-1969 having been struck down, the amended rules cannot apply to the petitioner who passed the competitive examination long before the coming into force of the amended rules. In any case it was contended that the amended definition did not, in terms, apply to persons who were not holding any civil post on the date of the coming into force of the amended rules or join any such post thereafter. It was contended that R. 3(iii)(cc) was, like amended R. 1(2), aimed at excluding the three candidates belonging to the category of released Armed Forces Personnel who had passed the competitive examination, and should be struck down.