B.Shalini Devi Vs the Director of Ex-Servicemens

PRAYER : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the respondent to consider the petitioner application dated 30.03.2019 to the recruitment for the post of Assistant Director of Ex-Servicemen's Welfare within the stipulated period by this Court.

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For Petitioner : Mr.Mohamed Sherbudeen

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For Respondent : Mr.G.V.Vairam Santhosh Additional Government Pleader

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W.P.(MD)No.11536 of 2019

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ORDER

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The Writ Petition is filed to direct the respondent to consider the writ petitioner's application dated 30.03.2019 to the recruitment for

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the post of Assistant Director of Ex-Servicemen's Welfare.

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It is the case of the writ petitioner that the writ petitioner studied B.Sc. Nursing and served as a Captain in Indian Military Service as short service Military Nursing Officer and retired from service on 05.03.2015. The respondent has called for eligible candidates for the appointment of Assistant Director of Ex-Servicemen's Welfare by Notification dated 12.01.2016. The writ petitioner applied for the said Post and waiting for the respondent's response. The said Notification dated 12.01.2016 was cancelled and another Notification came to be published in the Newspapers on 04.03.2019 for the recruitment of Post of Assistant Director of Ex-Servicemen's Welfare. As on 04.03.2019, the writ petitioner has crossed the period of three years from the date of retirement from the Military Service and as per G.O.Ms.No.831, he disqualified from applying to the said Post. The writ petitioner sent an

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W.P.(MD)No.11536 of 2019

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application to the said Post based on the Newspapers advertisement given on 04.03.2019. Hence, this Writ Petition.

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The learned counsel appearing for the writ petitioner would submit that as per G.O.Ms.No.831, the writ petitioner disqualified from applying to the said Post and prays to consider the writ petitioner's application dated 30.03.2019 to the recruitment for the Post of Assistant Director of Ex-Servicemen's Welfare.

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Per contra, the learned Additional Government Pleader appearing for the respondent would submit that as per the Joint Director (Policy), Kendriya Sainik Board, New Delhi letter dated 06.10.2020, it has been clarified that as per the definition of Ex-Servicemen status as promulgated by Department of Personnel and Training (DoPT) retired Military Nursery Service (MNS) Officers are not covered under ExServicemen status. He drew the attention of this Court by way of additional counter affidavit filed by the respondent.

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This Court considered the rival submissions made on either

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side and also gone through the materials available on records.

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It is seen from the typed set of papers that the writ petitioner had submitted his application dated 30.03.2019 based on the notification issued in the Newspapers dated 04.03.2019.

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The learned Additional Government Pleader appearing for

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the respondent would submit that the selection process has already been dropped and moreover, the writ petitioner's application could not be considered in view of the clarification issued by the Department of Personnel and Training (DoPT).

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Without going into the merits of the case, it is relevant to

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extract Para No.8 in the counter affidavit filed by the respondent, which reads as follows:-

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“8. I submit that the notification for the

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recruitment to the post of Assistant Director was published on 12.01.2016, but the recruitment could not be conducted due to administrative reasons. The

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petitioner had applied for the post of Assistant Director in response to the notification dated 04.03.2019. As prayed by the petitioner, one post of Assistant Director will be kept vacant till further orders of Hon'ble court.”

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It is also relevant to extract Para No.4 in the additional

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counter affidavit filed by the respondent, which reads as follows:-

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“4. I further submit that the petitioner had served as Military Nursing Service Officer in Indian Army and as per the clarification issued by DoPT, retired Military Nursing Service Officers are not covered under Ex-Servicemen status. As such, the petitioner is a non-ExServiceman and the status of application submitted by the petitioner for the post of Assistant Director in the Department of Ex-Servicemen's Welfare becomes 'ineligible'.”

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The learned counsel appearing for the writ petitioner made

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a request before this Court to consider the writ petitioner's application, which is still pending for consideration.

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The learned Additional Government Pleader appearing for

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the respondent has no serious objection to consider the request made on the petitioner side.

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It is pertinent to mention that calling for applications for concern Posts, scrutinizing applications and selection process are purely vested with respondent on administrative side. This Court has no jurisdiction to consider those aspects. It is for the respondent to consider the application pending with him to pass an order on it, as per their service rules in force.

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In view of the above, this Court is inclined to consider the

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prayer sought for in this petition, without going into the merit of the case. Accordingly, this Court directs the respondent to consider the writ petitioner's application dated 30.03.2019 to the recruitment for the Post of Assistant Director of Ex-Servicemen's Welfare on merits and in accordance with law, if there is no legal impediment, within a period of four weeks from the date of receipt of a copy of this order. It is made clear that this Court has not given any observation on merits of the matter.

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