Madhavnath B. Tamboli vs The State Of Maharashtra, Through ...
2003 Latest Caselaw 712 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule. Respondents waive service. By consent taken up for hearing forthwith.

2. The petitioner joined the Indian Air Force on 4th February 1964 and was employed until he was discharged on 28th February 1985. The Certificate of Discharge issued to him in accordance with the provisions of Section 23 of the Air Force Act, 1950, sets out that the discharge was on the petitioner "fulfilling the regular engagement". The character and general behaviour of the petitioner during the services is recorded as "exemplary" and the trade proficiency as "exceptional".

3. On 11th October 1985, the petitioner was appointed as Surveyor in the Revenue and Forests Department of the State Government and he joined duty shortly thereafter, on 18th October 1985. By a representation dated 16th September 1995 submitted to the Settlement Commissioner and Director of Land Records, the petitioner claimed that he was entitled under the Maharashtra Released Defence Services Personal (Fixation of Pay and Seniority) Rules, 1974, to seniority with effect from 4th February 1964 which was the date on which he was engaged in the Air Force. According to the petitioner, on 26th July 1996, the Taluka Inspector of Land Records recommended his case to the Superintendent and on 1st August, 1997, the Deputy Director of Land Records, Pune submitted a report to the Director of Land Records favourably recommending the case of the petitioner.

4. Since no decision was taken by the Government, the petitioner moved the Maharashtra Administrative Tribunal, seeking relief to the effect that he was entitled to the benefit of the past service rendered by him during his engagement in the Air Force. On that basis, the petitioner claimed a deemed date of promotion in the Class III Cadre to the post of Maintenance Surveyor and with effect from 10th February 1987 in the post of Taluka Inspector of Land Records from the date on which his junior was so promoted with consequential benefits.

5. The Tribunal by its judgment dated 22nd January 2001 held on a construction of the Rules that since the petitioner had not been "released" from the Air Force but, was "discharged", he was not entitled to the benefit of the Rules of 1974 and that the break in service could not accordingly be condoned. Consequently, the Tribunal held that the previous service rendered by the petitioner under the Air Force could not be counted under the Rules of 1974. The petitioner filed a Review Application before the Tribunal which has been dismissed by an order dated 13th September 2002.

6. The submission of Counsel for the petitioner is that the Tribunal has misconstrued the provisions of the Maharashtra Released Defence Services Personnel (Fixation of Pay and Seniority) Rules, 1974. Counsel urged that under Rule 3(9), the break in service of upto one year of released defence service personnel has to be condoned. The Tribunal, it is urged, has erred in making a distinction between the case of a 'release' and 'discharge'. Moreover, it was urged that the Discharge Certificate which was issued to the petitioner under Section 23 of the Air Force Act, 1950 would ex-facie demonstrate that the petitioner was not discharged on any ground of misconduct, but on the fulfillment of his regular engagement. The Discharge Certificate, it was urged, shows that the petitioner was regarded as having the exemplary character.

7. In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor of Maharashtra has framed the Maharashtra Released Defence Services Personnel (Fixation of Pay and Seniority) Rules, 1974. The object of the Rules is to make provisions for the fixation of pay and seniority of personnel who have served in and have been released from the defence services. The Rules inter alia contemplate a situation where personnel who had been engaged in the defence services may not immediately, upon their release, obtain employment under the State. In such case, Rule 3(9) stipulates that the break in service after release from the defence services upto one year shall be treated as condoned. In the event that the break in service exceeds one year, but does not exceed three years, it may be condoned for the purposes of pension under special orders of the State Government. Rule 3(9) provides thus:

"(9) In the case of released defence services personnel who cannot be appointed to a civil service or post immediately after their release the break in service upto one year between the military service and civil service shall be treated as condoned. The break in service exceeding one year but not exceeding 3 years may for purposes of pension be condoned under special orders of the State Government. The break in service will not however, be condoned for purpose of grant of notional increments."

The expression "released defence services personnel" is defined in Rule 2(b) thus:

"(b) "released defence services personnel", means Emergency Commissioned Officers/Short Service Regular Commissioned Officers and other ranks who have been released by the defence services after completing fixed tenure."

8. The Discharged Certificate which has been issued to the petitioner is under Section 23 of the Air Force Act, 1950. Section 23 provides thus:

"23. Certificate on termination of service.-Every warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother-tongue of such person and also in the English language setting forth-

(a) the authority terminating his service;

(b) the cause for such termination; and

(c) the full period of his service in the Air Force.

Under Section 23 a certificate that is issued on termination of service has to inter alia specify the cause of such termination.

9. The Air Force Rules, 1969 provide in Rule 10 that every person enrolled under the Act shall as soon as he becomes entitled under the conditions of his enrolment to be discharged, be so discharged with all convenient speed. Under Rule 11 a certificate furnished in accordance with the provisions of Section 23 of the Act, or a discharge certificate, has to be furnished by or on behalf of the Commanding Officer to the person dismissed removed, discharged, retired or released. Section 23 of the Air Force Act, 1950 similarly provides for the issuance of a certificate to every warrant officer or enrolled person who is dismissed, removed, discharged, retired or released from the service. In the present case, the Discharge Certificate stipulates that the petitioner was being discharged on the fulfilment of his regular engagement. As already noted earlier, the character and general behaviour of the petitioner has been termed as 'exemplary' and his trade proficiency as 'exceptional'.

10. The claim of the petitioner before the Tribunal was that the break in service between 28th February 1985 when he has discharged from the Air Force and 11th October 1985 when he was appointed as a Surveyor in the Revenue Department has to be condoned. The Tribunal, while construing the expression "release" that has been used in Rule 3(9) of the Rules proceeded on the basis that the aforesaid expression must be attributed a meaning in contradistinction to the expression "discharge" that is used in Section 23 of the Air Force Act, 1950. We do no find any warrant for the said interpretation. The Rules of 1974 have been framed by the Governor under Article 309 for governing the fixation of pay and seniority of released defence services personnel. These Rules must be given a purposive interpretation to fulfil the object which they are intended to subserve. Rule 2(b) defines released defence services personnel to mean inter alia "other ranks who have been released by the defence services after completing fixed tenure." The expression 'released' for the purposes of Rule 2(b) ought not to be regarded as not including a member of the defence service who has been discharged, so long as the discharge was after completing a fixed tenure. We should not, however, be understood to have held that a member of a defence service who has been dismissed or removed on the ground of unsuitability or misconduct would be entitled to the benefit of Rule 2(b). Plainly such a person cannot be regarded as released from defence service after completing a fixed tenure. There is, however, no reason why by a process of restrictive interpretation, a person in the position of the petitioner should be denied the benefit of Rule 3(9). Moreover, there is no reason why the expression 'released' in Rule 2(b) should be imported the same technical meaning as in Section 23 of the Air Force Act. The expression "released" is not defined by the Rules and must bear its ordinary grammatical connotation. The petitioner who was discharged from the Air Force on the fulfilment of his regular engagement must be regarded as a person who has been released by the defence services after completing a fixed tenure within the meaning of Rule 2(b).

11. In Sansar Chand Atri v. State of Punjab 2002 SCC (L&S) 770, the appellant was discharged under the Army Rules on his own request after rendering a little more than 18 years of serice and was drawing pension as an ex-servicemen. The appellant applied for a post in the Judicial branch of the Punjab Civil Service which was reserved for ex-servicemen, but he was informed that his request could not be considered as he had been discharged at his own request. The High Court declined to grant relief to the appellant, holding that under the provisions of the Army Rules, a distinction was made between expression "discharge" and "release". The High Court held that under the Punjab Recruitment of Ex-Servicemen Rules, 1982, a person released from service on his own request was excluded from the purview of the term 'ex-servicemen'. Allowing the appeal and setting aside the judgment of the High Court, the Supreme Court held that the reservation for ex-servicemen in the service rules was meant for the benefit of ex-servicemen. The purpose of the provision, held the Supreme Court, was to provide them with suitable jobs in the Civil Services so that they would not face difficulties of adjustment in civil society after leaving the defence forces. The Supreme Court held that interpretation of the Rules should be purposive and reasonable so that the intent and purpose of the provision was served. The Supreme Court held thus:

"From the provisions in the Rules it appears that a distinction has been made for persons who are released from the army on the ground of medical disqualification or on the ground of inefficiency or misconduct. Such distinction is reasonable keeping in view the purpose of reservation of posts made under the Rules. All the ex-defence service personnel are to be treated as a class separate from other candidates for the purpose of offer of jobs and no differentiation or discrimination can be made amongst them unless such differences are real and substantial. Testing the provisions in this context we are of the view that a person in the army who has earned pension after putting in the requisite period of service before leaving the army whether at his own request or on being released by the employer or on any ground should be treated as an ex-serviceman who has retired from the army. Such treatment is to be meted out to all such persons irrespective of whether the nomenclature used is "relieved" or "discharged" or "retired". If the contention raised on behalf of the Service Commission and the State Government that since the appellant has been discharged from the army at his own request, he cannot be treated as an ex-serviceman, is accepted then it will create a class within a class without rational basis and, therefore, becomes arbitrary and discriminatory. It will also defeat the purpose for which the provision for reservation has been made."

(emphasis supplied).

The Supreme Court held that while it is true that the Service Rules governing the armed forces make a distinction between retirement, release and discharge, yet, in the context of the Rules framed under Article 309 by the Governor of Punjab, a broader meaning must be given to the word "retired". The Supreme Court held that there was no rational basis for excluding those discharged or released from service after earning pension. The mere fact that a member of the armed forces had after a long period of service voluntarily quit the service with the consent of the employer should not place him in a disadvantageous position for claiming the benefit of reservation for ex-servicemen.

12. The rationale on the basis of which the Supreme Court held that the expression "retirement" should be given a wider meaning, in order to effectuate the objective behind the Punjab rules must apply in relation to the construction to be placed on the expression "release" in the Maharashtra Rules of 1974. The object of the Rules is to ensure that persons who have devoted long years of service in the defence of the nation as members of the armed forces should have the benefit of their service in the armed forces counted on their subsequent re-employment by the State. The object in counting the service in the defence services is to ensure that the long years spent by a member of the service should not be obliterated. That being the object, the Court must adopt a purposive interpretation that would advance the underlying purpose. The interpretation of Rules should not be such as would restrict the benefit which is conferred on a proper construction.

13. In the circumstances, we hold that the expression "released" in Rule 3(9) and the reference to "released defence service personnel". in Rule 2(b) will comprehend and does not operate to exclude defence personnel who have been discharged from service on the completion of a fixed tenure. Again, it must be clarified that the reference to the completion of a fixed tenure does not mean that the appointment should have been for a fixed tenure. Rule 2(b) postulates that the release must be upon the completion of a fixed tenure. So long as a member of a defence service has completed the required tenure and has been duly released on the fulfilment of his engagement, there is no reason why he or he should be deprived of the benefit which was sought to be protected by the Rules of 1974. The benefit of the Rules cannot be available to a person whose services have been terminated for reasons of misconduct, but that is not the case here.

14. The impugned orders of the Maharashtra Administrative Tribunal dated 22nd January 2001 and 13th September 2002 are quashed and set aside. The Respondents are directed to condone the break between 28th February 1985, the date on which the Petitioner was discharged from the Air Force and 11th October 1985, the date of his appointment as a Surveyor in the Revenue Department. The petitioner will be entitled to the benefit of the provisions of Rule 3(9) of the Maharashtra Released Defence Service Personnel (Fixation of Pay and Seniority) Rules, 1974. The Respondent shall take necessary steps to grant consequential benefits to the petitioners to which he may be entitled in law, on the basis of the aforesaid determination.

15. The petition is allowed in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs.