Satyabrata Sinha, J. - (1.) This application is directed against an order dated 27.3.97 passed by a Bench of the West Bengal Administrative Tribunal in O.A. 833 of 1997, whereby and whereunder the application filed by the petitioner herein for grant of the following reliefs - "(a) A declaration that the applicant being a qualified ex-serviceman is entitled to be appointed as Wireless Operator or any other equivalent post under the reserved vacancies earmarked for ex-serviceman ; (b) Issuance of any other order or orders and/or directions as this Hon'ble Tribunal deem fit and proper" was dismissed stating - "It appears from paragraph 7, of his petition that his name was not sponsored by the Employment Exchange against any regular vacancy. This Tribunal can entertain application relating to State Govt, employees or cases of recruitment against regular vacancies under State Govt, obviously, the petition is not within such category and, hence, this Tribunal has no jurisdiction to entertain the petition '
(2.) The learned Counsel appearing on behalf of the petitioner has raised a short question in support of this application. According to the learned Counsel, as the petitioner was an ex-serviceman within the meaning of the provisions of Ex-Serviceman (Reservation of Vacancies in the State Services and Posts, Group "C" and Group "D") Rules, 1982 which had been made in exercise of the State's power conferred under the proviso appended to Article 309 of the Constitution of India, the impugned order cannot be sustained. The learned Counsel appears to be right. Ex-Serviceman has been defined in Rule 2(c) of the said Rule to mean a person who has served in any rank in the Armed Forces of the former Indian States but excluding those which had been specified herein for a continuous period of not less than six months after attestation. Rule 3 of the said Rule provides that the same would apply to the State Services and Posts, Group 'C' and Group 'D'. Rule 4 provides for reservation of vacancies. The learned Tribunal thus, in our opinion, completely misdirected itself in passing the impugned order on the ground that the petitioner had not been sponsored by the Employment Exchange against any regular vacancy.
(3.) When a person claims appointment and/or right to be considered for appointment in terms of the statutory rules framed by the State, in our opinion, the State Tribunal has the jurisdiction to entertain the application.The learned Counsel for the State, however, submits that the petitioner is not entitled to any relief. This may be so ; but on that ground alone, the petition could not have been thrown out without considering the merit of the matter. A distinction must be drawn between the inherent lack of jurisdiction on the part of the learned Tribunal to entertain an application and denial of any relief to an applicant upon considering the case on merit. In this case the learned Tribunal has failed to exercise its discretion which it possessed.;