Background Facts

The respondent was a medical officer who had worked with the Indian Air Force. He superannuated on 30 June 2019. Before superannuation, he applied for being regularly recruited as Teaching Faculty Professor in the ESIC Medical College. After interview, a notification was issued by the ESIC, listing the candidates who had been provisionally selected pursuant to the interview.

The name of the respondent figured at S. No. 3. He was provisionally selected to the post of Professor of Obstetrics and Gynaecology as a general category candidate. However, by a communication dated 8 July 2020, the respondent's candidature was cancelled on the ground that he did not satisfy the eligibility criteria for grant of age relaxation as an ex-serviceman candidate.

Aggrieved by the same, the respondent approached the Central Administrative Tribunal which allowed his OA. Challenging the Tribunal's judgment, the ESIC filed the writ petition before the Delhi High Court.

It was argued by the ESIC that Rule 5 of the Ex-servicemen Re-employment Rules, 1979 applies only to ex-servicemen. The respondent did not qualify as an ex-serviceman in terms of Office Memorandum dated 3 April 1991 read with OM dated 4 March 2019 issued by the Department of Personnel and Training. It was contended that the OM states that only those Armed Forces personnel could be considered ex-servicemen after their retirement who apply for re-employment within a period of one year before completing the prescribed period of service.

On the other hand, it was argued by the respondent that the prescribed period of 20 years expired much before the respondent had applied as an ex-serviceman for joining the ESIC. Therefore, he could not be treated as a person who had applied more than one year prior to expiry of the prescribed period. It was further submitted that persons who would apply after the expiry of the prescribed period would be as entitled to be treated as ex-servicemen as persons who would apply within one year of the expiry of the prescribed period.

It was further argued that the proscription against being treated as an ex-serviceman would apply only where the application was made more than one year prior to the expiry of the prescribed period. It was submitted that the respondent had applied for regular recruitment as Professor in the ESIC Hospital after he had completed his prescribed period in the IAF. Therefore, it would not be correct to hold that he was not an ex-serviceman.

Findings and Observations of the Court

It was observed by the Division Bench that the cancellation of the candidature of the respondent was on the ground that he did not satisfy the criteria for grant of age relaxation. It was further observed that Rule 5 of the Ex-servicemen Re-employment Rules, 1979 contains the stipulation regarding age relaxation. It was further observed that the prevailing criterion in order to decide whether a candidate would qualify as an ex-serviceman was whether his application for recruitment as an ex-serviceman was tendered within one year of completing the prescribed period.

It was held by the Division Bench that persons who would apply after the expiry of the prescribed period would be as entitled to be treated as ex-servicemen as persons who would apply within one year of the expiry of the prescribed period. It was further held that the proscription against being treated as an ex-serviceman would apply only where the application was made more than one year prior to the expiry of the prescribed period.

It was further observed that the intention of requiring that the applicant should have had less than a year to retire was obviously to deter persons who were in service and were not retiring in the near future to seek ex-servicemen benefits and persons who had already retired from the Armed Forces were obviously ex-servicemen.

It was held that as the respondent had applied for regular recruitment as Professor in the ESIC Hospital after he had completed his prescribed period in the IAF, it would not be correct to hold that he was not an ex-serviceman.

The judgments of the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji and Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, were relied upon wherein it was held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned. Further it cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.

It was further observed by the Bench that it was not a case of regularization of a contract employment. Therefore, the respondent's right to have been appointed on regular basis pursuant to the interview survived. It was held by the Division Bench that the respondent was entitled to regular employment as the cancellation of his candidature was not sustainable in law. Therefore, it was directed by the Bench that the respondent should be regularly appointed.

With the aforesaid observations, the writ petition filed by the ESIC was disposed of by the Division Bench.

Case Name : Employees State Insurance Corporation & Anr. v. G P Capt. Jagdish Chandra Sharma (Retd.) & Ors.

Case No. : W.P.(C) 5400/2024

Counsel for the Petitioners : Sitikanth Nayak, SPC

Counsel for the Respondents : Prabhat Kumar, Adv., Himanshu Pathak, SPC with Mohit Gupta, Adv