The Uttarakhand High Court has struck down Clause 8 of a May 2020 Government Order, which denied ex-servicemen (Purva Sainik) the right to claim reservation benefits on the grounds that if an ex-serviceman got civil employment due to his status, he shall not be entitled to avail reservation benefits.
The Division Bench of Justice Manoj Kumar Tiwari and Justice Subhash Upadhyay held that benefits conferred to ex-servicemen by a State Legislation could not be taken away by executive instructions.
It referred to Section 2(1)(c) of the Uttar Pradesh Public Service (Reservation For Physically Handicapped, Dependents of Freedom Fighters and (Ex-Servicemen) Act, 1993.
As per the Act, a ‘Purva Sainik’ could be defined as (i) a domicile of Uttarakhand, who served in the Indian Army, Navy or Air Force and who retired from such service, after earning pension; or (ii) released from service on medical grounds or who was released under circumstances beyond his control and was given medical or other eligibility pension; or (iii) who was released from service for reasons other than his own request; or (iv) who was released from service after completing a specific period for reasons other than termination or removal from service and who was paid gratuity.
The High Court observed that an ex-serviceman did not cease to be an ex-serviceman merely by accepting employment under the State/Central Government. He retained his status of ex-serviceman, even after availing the benefit meant for him during selection.
When the Legislation did not impose any restriction regarding the number of times benefit could be availed by ex-servicemen, then such restriction could not be imposed by executive instructions, it noted, adding that Clause 8 of the Government Order dated May 22, 2020 sufferered from vice of artificial classification.
As per the High Court, the legislation, which covered the field, did not permit classification of Purva Sainik (Ex-servicemen) based on their re-employment status.
The definition included all persons falling in any one of the four categories enumerated in Section 2(c) of the Act within the fold of Purva Sainik. Therefore, the classification made by the state government between those who eere yet to be appointed vis-à-vis those who were employed by or under the Government, by executive instructions, could not but be castigated as discriminatory, it added.
The High Court passed the order on a writ petition filed by an ex-serviceman appointed as an Assistant Teacher in a Government Primary School, on a post reserved for ex-servicemen.
The petitioner challenged Clause 8 of Government Order dated May 22, 2020, which provided that the benefit of ex-servicemen status would be available only once and if an ex-serviceman obtained civil employment due to his ex-servicemen status, then he would no longer be entitled to such benefit for future employment.
The ex-serviceman challenged the clause on the grounds that the 1993 Act already provided reservation to ex-servicemen in State Services, and therefore, the benefits available to them under the said legislation could not be restricted or taken away by the state government merely by a Government Order.