D.P. Mohapatra, C.J. - (1.) The bottom-line question that quintessentially falls for determination by this Bench is whether a candidate, seeking direct appointment on the dint of being 'Ex-serviceman' to a post in Group 'A' and/or Group 'B' Service of the State Government, is required to fulfil the condition of 'at least five-years' military service' as a prerequisite to consideration of his candidature as against the posts reserved for 'ex-service men'? An ancillary question, which arises for consideration in this connection, is whether the prescription of five years' military service vide G.O. dated 28.2.1985 as a condition precedent to claim relaxation in upper age limit prescribed for direct appointment to Group 'A' and/or Group 'B' services of the State Government is equally essential condition for consideration of the candidature of an ex-serviceman against the quota reserved for 'ex-servicemen' and other defence personnel.
(2.) The question arose in Hari Shanker Upadhyay v. Public Service Commission, U. P. Allahabad and another. Civil Misc. Writ Petition No. 22029 of 1989, in which learned single Judge, reinforced by a Division Bench decision of this Court in Hari Shankar Tripathi v. State of U. P. and others, Civil Misc. Writ Petition No. 1090 of 1990, decided on 7.5.1990, held vide judgment dated 21.5.1991, that in a run-up to appointment against the posts reserved for 'ex-servicemen' at least five years' service in army is imperative. In that case, petitioner Hari Shanker Upadhyay an Army Officer involuntarily discharged from service on medical grounds, took the combined State Service Examination. 1987 conducted by Uttar Pradesh Public Service Commission. Having romped home in the written examination, he was called for interview. On the result of the examination being declared by the Commission, vide communique dated 24.2.1989, the petitioner was declared as a successful candidate, however, qualified with the restraint that the declaration of his result was made as a provisional measure. The petitioner was required to update the Commission with certain documents and after the requisite documents were submitted, the Commission by its letter dated 25.10.1989 communicated to the petitioner that his selection at the Combined Service Commission/Examination, 1987 had been rescinded as he had not discharged five years of service with the Armed Forces. The Commission converged to the view that since the petitioner had not discharged five years of service with the Armed Forces, he was not entitled to be considered for appointment as against quota reserved for 'Ex-servicemen'. It was against the said decision of the Commission that the petitioner Hari Shanker Upadhyaya landed in this Court by filing Civil Misc. Writ Petition No. 22029 of 1989, only to be greeted with dismissal by the learned single Judge vide judgment and order dated 21.5.1991 following decision in Hari Shanker Tripathi's case (supra). On the judgment and order dated 21.5.1991 of the learned single Judge being challenged in Special Appeal No. 40 of 1991, the Division Bench, on consideration of the matter, came to the conclusion that the State Government's Order dated 20.2.1985 only visualised relaxation in the prescribed upper age limit. The Division Bench held that the Public Service Commission fell in error in weeding out the candidature of the petitioner on the ground that he had not put in at least five years' military service and was not entitled to be considered for recruitment as against quota reserved for 'ex-servicemen'. The Division Bench held that the petitioner was entitled to be considered on merits as against the posts reserved for 'ex-servicemen' since he was not claiming relaxation in the upper age limit but in the same breath, the Division Bench reckoned it to be "in the public interest that the decision in this Special Appeal and in the case of Hari Shanker Tripathi be resolved harmoniously by referring the matter of the controversy in the two cases to a larger Bench". Since similar controversy manifested itself in the connected writ petitions which were placed before different Division Benches of this Court, similar orders were passed referring the matter for a decision by Larger Bench and it is in the backdrop of these orders that this Bench was constituted and that is how the matter has waded its way before us. Facts of the case being similar, we proceed to come to grips with the controversy by taking up Special Appeal No. 40 of 1991 as the leading case.
(3.) It brooks no dispute that the appellant and the petitioners in all these cases did not seek any age relaxation for consideration of their applications for appointment to Group 'A' and Group 'B' services under the State Government. Therefore, the question is whether they are required to fulfil the condition of at least five years' military service for being given the benefit of appointment to a post in the quota reserved for 'Ex-servicemen'. The answer to this question is interwoven with interpretation of the Government Orders dated 20.8.1977 and 28.2.1985 issued by the State Government and their interaction with the letters dated 20.3.1987 and 5.10.1989 of the Joint Secretary, Karmik Anubhag. Uttar Pradesh to the Secretary, Public Service Commission. Uttar Pradesh, Allahabad as well as the provisions of the U. P. (Reservation of Vacancies for Ex-servicemen in Class III and Class IV Services and Posts) Rules, 1977 (for short 1977 Rules) and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 (for short the Act). It is relevant to note here that the term 'ex-servicemen' has not been defined in the aforementioned Government Orders, but Rule 2 (c) of 1977 Rules defines 'Ex-servicemen' to mean "a person who had served in any rank (whether as a combatant or non-combatant in the Armed Forces of the Union for a continuous period not less than six months and (i) has been released, otherwise than by way of dismissal or discharge on account of misconduct) or inefficiency, or has been transferred to the reserve pending such release, or (ii) has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid. Section 2 (c) of the Act defines 'Ex-servicemen' as follows : "(c) 'ex-servicemen' means a person who has served in any rank, as a combatant or non-combatant, in the Indian Army. Navy or Air Force and : (i) has retired from such service after earning his pension, or (ii) has been released from service on medical grounds, in accordance with the requirements of such service, or because of circumstances beyond his control and has been granted medical or disability pension, or (iii) has been released, otherwise than on his own request, as a consequence of reduction in the establishment of such service, or (iv) has been released from such service after a fixed specified period, but has not been released on his own request or has not been dismissed or discharged on account of misconduct or inefficiency and has been granted gratuity : and includes the following categories of territorial Army personnel who : (i) get pension for continuous embodied service, (ii) have become medically unfit owing to military service, and (iii) are winners of gallantry award.";