Serving Armed Forces officers can't be deemed to be Ex-Servicemen from a prospective date, said the Supreme Court while rejecting the claim of three appellants for appointments as Village Development Officers in the Uttar Pradesh State Service.

The appellants, even while serving the Armed Forces, applied to the posts of Village Development Officers, advertised by the UP Subordinate Services Selection Commission in 2016, under the category of Ex-Servicemen. The appellants were released from Armed Forces in 2016 itself, but few months after the last date for application for the post (10.02.2016).

Though the appellants were issued appointment letters in 2019. But, their appointments were later declared to be null and void by the UP Subordinate Services Selection Commission on two grounds - (1) they were not ex-servicemen at the time of applications, (2) they did not possess the requisite qualification. The appellants approached the Supreme Court after the Allahabad High Court refused to interfere with the Commission's decision.

The Bench of Justices Vikram Nath and Ahsanuddin Amanullah, while dismissing their appeal, reiterated the established position of law that the basic question on eligibility has to be determined on the basis of the cut-off date.

The Court concluded that at the time of the advertisement none of the appellants can be said to have been Ex Servicemen and they were still in service.

Imperatively, the Court also examined the relevant rules and clarification(s) to the advertisement and opined that the same do not indicate that the appellants can be deemed Ex Servicemen from a prospective date, despite being in actual service on the relevant date.

“As such, in the case at hand at least, there is no concept of serving personnel being deemed Ex-Servicemen. It would not be proper for this Court to hold or interpret otherwise.,” the Court added. 

Contentions
On one hand, the counsel, appearing for appellants, contended that when the appointment letters were actually issued in May, 2019, the appellants stood released, from the Armed Forces.

On the contrary, it was argued on behalf of the State that the stance of the appellants for consideration as Ex-Servicemen on the date of appointment is clearly in teeth of the settled principle of law where the advertisement itself was very clear that only Ex-Servicemen were eligible to even apply.

Further, it was also contended that the appellants could not have taken any civil employment unless they were actually relieved, superannuated or retired, which ultimately would be a decision to be taken by the employer and mere indication in the certificate ipso facto would not mean that on the date indicated they would automatically come within the category of ExServicemen.

Court's Observations 

Inter-alia, the Court, after referring to the case of Rakesh Kumar Sharma v State (NCT of Delhi), (2013) 11 SCC 58, observed that if the relevant rules are interpreted in any other manner, as mentioned above, then the same would be unjust to a large number of other persons who, similarly placed as the appellants, were not Ex-Servicemen as on the date of advertisement but came under the category later however, they did not apply at the relevant time.

Supporting these observations, the Court also noted that even if a certification is given to a person indicating a prospective date till when he would be in employment, circumstances could intervene between the date of such certificate and the prospective date of relieving. For instance, there can be circumstances for which the person cannot be relieved from his post. Thus, such date indicated in the certificate cannot be taken as the date of being finally and actually relieved from service.

Apart from Rakesh Kumar, the Court also cited several other judgments on the same issue including the decision of State of Bihar v Madhu Kant Ranjan, 2021 SCC OnLine SC 1262, wherein it was observed that ‘As per the settled proposition of law, a candidate/applicant has to comply with all the conditions/eligibility criteria as per the advertisement before the cut-off date mentioned therein unless extended by the recruiting authority.’

In this backdrop, the Court, dismissed the appeal while directing that any payments made to the appellants for the period they have actually worked as Village Development Officers, shall not be recovered.