Ex-Serviceman Not Employed When Applying For Recruitment Can Claim Concession While Applying For Multiple Posts: Madras High Court

The Madras High Court recently observed that the proviso to Section 3(j) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 which prohibits an ex-serviceman once recruited from claiming concession for further recruitment, should be interpreted as applying to ex-servicemen who are already recruited on the date of the application. Thus, the court clarified that the proviso would not apply to an ex-serviceman who was not recruited at the time of the application but was subsequently recruited before the result of the recruitment for a higher post was published.“In light of these principles, the proviso to Section 3(j) should be interpreted as applying only to ex-servicemen who were already recruited as of the date of their application. It does not extend to individuals who had not been recruited at the time of application but were subsequently recruited before the results were published. Such an interpretation ensures that eligibility and concessions are assessed based on the date of application, safeguarding the rights of deserving candidates against procedural delays,” the court said.The Madurai bench of Justice MS Ramesh and Justice AD Maria Clete observed that when an ex-serviceman has accepted employment in a lower post due to its immediate availability, he should not be held ineligible to claim the ex-serviceman concession for a higher post, especially when the disqualification was not expressly provided and when there was no fault on the part of the applicant. The court added that the concession given to ex-servicemen for their services to the nation should be reasonably interpreted in a manner that does not penalize them for procedural delays. “The reservation of posts for ex-servicemen by the Central and State Governments reflects a recognition of the sacrifices made by individuals in service of the nation. The concessions granted to them must be applied reasonably and in a manner that does not penalize candidates for procedural or administrative delays. Accepting employment in a lower post due to immediate availability should not render an individual ineligible to claim the concession for a higher post, especially when the disqualification is not expressly provided for and when there is no fault on the part of the applicant,” the court said. The court was hearing an appeal filed by the Tamil Nadu Public Service Commission challenging an order of a single judge directing TNPSC to consider the entitlement of some ex-servicemen to be appointed under the Ex-Serviceman category for Group-II posts after taking up employment in Group-IV posts. The case of the ex-servicemen was that they had applied for various positions notified by the TNPSC including posts under Group II and Group IV. Since the result of the Group IV post was declared before, the ex-servicemen secured posts under the notification and joined the respective services. When the results for the Group II post were published and the ex-servicemen found themselves to have been selected, they claimed appointment but the same was denied. TNPSC contended that the ex-servicemen were precluded from claiming the ex-serviceman concession a second time. Reliance was placed on proviso to Section 3(j) of the TN Government Servants (Conditions of Service) Act, 2016 which explicitly bars ex-servicemen, who have already been recruited to any service, from claiming the benefit of the concession for subsequent recruitments. The court noted that while the proviso prohibited ex-servicemen, who were already recruited from claiming further concession, the proviso did not prohibit an ex-serviceman, who was not recruited, to apply for concession to more than one post. Thus, the court opined that the proviso left unrecruited individuals free to assert the concession for multiple posts or categories. The court observed that the eligibility of an applicant to avail of ex-serviceman concession should be assessed at the date of relevant advertisement or notification, on which date the rights get crystallized and subsequent developments, such as recruitment to another post cannot retroactively negate those rights. “The proviso prohibits claiming any concession after recruitment but does not prohibit pursuing the claim already made at the time the ex-servicemen were not recruited. Further, the eligibility of an applicant to avail of the ex-serviceman concession must be assessed as of the date of the relevant advertisement or notification. The rights of a candidate are crystallized on that date, and subsequent developments, such as recruitment to another post under a later notification, cannot retroactively negate those rights,” the court said. The court explained that the proviso did not explicitly define the critical date on whether the status of the applicant should be assessed on the date of application or the date of appointment. Thus, the court said that in the absence of...

Ex-Serviceman Not Employed When Applying For Recruitment Can Claim Concession While Applying For Multiple Posts: Madras High Court

Upasana Sajeev

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