W.P.(C) 3427/2023 Page 1 of 25

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 18 December 2025

Pronounced on: 9 March 2026

+ W.P.(C) 3427/2023 & CM APPL. 13237/2023

GHUNNA RAM .....Petitioner

Through: Mr. Avinash K Sharma, Mr.

Ankur Vyas and Mr. R Abhishek and Ms.

Garima Joshi, Advs.

versus

UNION OF INDIA AND ORS .....Respondents

Through: Mr. Ravinder Agarwal, Manish

Kumar Singh, Vasu Agarwal, Lekh Raj

Singh, Advocates for UPSC

Mr. Ankit Siwach, Adv. with Mr. Naginder

Benipal, SPC with UOI

Major Anish Muralidhar Army

Insp Athurv and Mr. Ramniwas Yadav,

CRPF

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

HON'BLE MR. JUSTICE OM PRAKASH SHUKLA

% JUDGMENT

09.03.2026

C. HARI SHANKAR, J.

A. Facts

I. Uncontested facts

W.P.(C) 3427/2023 Page 2 of 25

1. The petitioner joined the Indian Army

1

as Sepoy on 28 August

2004. He was promoted as Havildar Major (Technical) on 27

September 2015. At the time of his promotion, he had executed a five

year bond with the Army, which was discharged on 27 September

2020.

2. Vide letter dated 14 March 2019, the Ministry of Home Affairs

2

nominated the Central Reserve Police Force

3

as the nodal force to

conduct a Physical Standard Test

4

, Physical Efficiency Test

5

and

Medical Standard Test

6

of candidates who qualified the written test

forming part of the CAPFs

7

(AC

8

s) Examination 2019

9

for recruitment

to the post of AC in the CAPFs

10

.

3. The examination was to consist of a written test followed by

PST/PET followed by MST, followed by interview/personality test.

4. On 15 April 2019, the commanding officer of the petitioner

issued “a Form of Certificate for Serving Personnel

11

”, below which

the petitioner subscribed to an undertaking, pertaining to the 2019

examination. The Certificate and Undertaking read thus:

1

“the Army” hereinafter

2

“MHA” hereinafter

3

“CRPF” hereinafter

4

“PST” hereinafter

5

“PET” hereinafter

6

“MST” hereinafter

7

Central Armed Police Forces

8

Assistant Commandant

9

“the examination” hereinafter

10

“CAPFs” hereinafter

11

“the Serving Personnel Certificate” hereinafter

W.P.(C) 3427/2023 Page 3 of 25

“FORM OF CERTIFICATE FOR SERVING PERSONNEL

(Applicable for serving personnel who are due to be released

within one year)

I herby certify that, according to the information available with me

No. 14672122N Rank HMT Name Ghunna Ram is serving in the

Army from 28 Aug 2004 and is due to complete the specified term

of his engagement with the Armed Force on the date 31 Dec 2020.

Sd/-

Commanding Officer

Place: C/o 56 APO

Date: 15 Apr 2019

Candidate furnished certificate as above will have to give the

following undertaking:-

UNDERTAKING TO BE GIVEN BY THE CANDIDATE

I, understand that if selected on the basis of the recruitment/

Examination to which this application relates, my appointment will

be subject to my producing documentary evidence to the

satisfaction of the appointing authority that I have been duly

released/ retired/ discharged from Armed Forces and that I am

entitled to the benefits admissible to ex-servicemen in term of the

Ex-servicemen (Re-employment in Central Civil Service and

Posts) Rule, 1979, as amended from time to time.

Sd/-

Signature of candidates

Place: C/o 56 APO

Date: 12 Apr 2019”

5. Vide notification dated 24 April 2019, the Union Public Service

Commission

12

notified the 2019 CAPFs (Acs) examination.

6. The petitioner applied as an Ex-Serviceman

13

. He cleared the

written test, the PST/ PET and the MST and was called for interview.

12

“UPSC” hereinafter

13

“ESM” hereinafter

W.P.(C) 3427/2023 Page 4 of 25

7. Thus far, the parties before us are ad idem on the facts.

II. Stand of the petitioner in the writ petition

8. According to the petitioner, on or around 6 November 2019, the

bag which contained all his documents was stolen. This resulted in

considerable mental anguish to the petitioner. As a result, though the

petitioner lodged a First Information Report

14

on 6 November 2019

with the Police authorities, regarding the theft of his bag and the

documents contained therein, the petitioner, instead of stating that the

Serving Personnel Certificate issued by the Commanding Officer had

been stolen, mistakenly stated that his ESM ID had been stolen.

9. On 5 February 2021, the results of the written test were declared

by the UPSC. The petitioner was among the successful candidates.

10. Having come to know that he had qualified in the written test,

the petitioner, on the very next day, i.e. 6 February 2021, applied for

discharge from the Army. The petitioner’s case was recommended by

the Army in March 2021.

11. According to the petitioner, his discharge from the Army was

delayed on account of the intervening COVID-19 pandemic. On 5

October 2021, a list of candidates who could be permitted discharge

from army service on compassionate grounds in March 2022 was

released by the Army. The petitioner’s name figured in the list.

14

“FIR” hereinafter

W.P.(C) 3427/2023 Page 5 of 25

Ultimately, the petitioner was discharged from the Army on 31 March

2022.

12. In the interregnum, on 17 August 2021, the UPSC addressed a

detailed communication to the petitioner, levelling the following

allegations:

(i) The petitioner had, by earlier communications dated 16

March 2021, 20 May 2021 and 29 June 2021 of the UPSC, been

requested to submit Proforma IV, but had failed to do so.

(ii) 10% of vacancies following the 2019 examination were

earmarked for ESM, as per the MHA Notification dated 24

April 2019 whereby the examination was notified. “Ex-

serviceman” was defined in the Ex-servicemen (Re-

employment in Central Civil Services and Posts) Rules, 1979

15

.

The 1979 Rules had been amended by the Ex-servicemen (Re-

employment in Central Civil Services and Posts) Amendment

Rules, 2012

16

, notified by the DOPT on 4 October 2012. Rule

5(c) of the 1979 Rules as amended in 2012, read thus:

“For appointment to any vacancy in Group ‘A’ and Group

‘B’ services or posts filled by direct recruitment on the

results of an All India Competitive Examination, the Ex-

servicemen and Commissioned Officers including

Emergency Commissioned Officers or Short Service

Commissioned Officers who have rendered at least five

years military services and have been released –,(i) on

completion of assignment (including those whose

assignment is due to be completed within one year)

otherwise than by way of dismissal or discharge on account

15

“The 1979 Rules”, hereinafter

16

“The 2012 Amendment Rules”, hereinafter

W.P.(C) 3427/2023 Page 6 of 25

of misconduct or inefficiency.”

The period of one year, for reckoning the completion of the

assignment with the Armed Forces, of the candidate, as

envisaged by Rule 5(c), was required to be reckoned from the

last date for submission of the application. The last date for the

submission of the application being 20 May 2019, the ESM was

required to have been released/discharged from the Armed

Forces on or before 19 May 2020. No such decision had been

taken by the Army in respect of the petitioner by the said date.

The petitioner’s candidature, therefore, ipso facto stood

disqualified by operation of Rule 5(c)(i) of the 1979 Rules as

amended in 2012.

(iii) At the time of undergoing the PET/PST, the petitioner

had stated that he had lost his Discharge Certificate on 6

November 2019 and also tendered the FIR lodged by him on the

said date. This was obviously untrue, as the petitioner had, by 6

November 2019, not yet been discharged from the Army.

(iv) In para 9(i) of the Detailed Application Form

17

, submitted

by the petitioner while applying for participating in the 2019

examination, the petitioner had stated that he was an ESM. In

para 11(i) of the same Form, however, he stated that he had

never been employed. These statements were contradictory.

(v) The petitioner’s candidature additionally, therefore, stood

17

“DAF” hereinafter

W.P.(C) 3427/2023 Page 7 of 25

disqualified as he had made false submissions and suppressed

information.

The petitioner was, therefore, directed to show cause as to why his

candidature be not cancelled under Rule 14 of the CAPF (ACs)

Examination 2019 Rules

18

.

13. The petitioner replied to the aforesaid communication of the

UPSC on 24 August 2021. With respect to the various

allegations/queries contained in the letter of the UPSC, the petitioner

submitted that (i) the Army had, vide its NOC dated 15 April 2019,

clearly stated that the petitioner could be released/discharged after 31

December 2020 as, by then, his assignment with the Army would be

over, (ii) the delay in discharge/release of the petitioner by the Army

was only due to the COVID pandemic and the then existing stay on

voluntary retirements, (iii) after his bag had been stolen, the petitioner

had, in his FIR, mistakenly referred to the document which was

lodged as his ESM ID, instead of the Serving Personnel Certificate,

(iv) para 9(i) of the DAF provided, against the query requiring the

candidate to declare whether he was, or was not, an ESM, only two

options, “yes” and “no”, and the petitioner clicked “yes” in view of

the undertaking/certificate dated 15 April 2019, (v) the petitioner

stated that he had never been employed earlier, as he had never been

employed in the CAPFs at any prior point of time, (vi) however, the

petitioner provided all details of the medals and encomiums earned by

him in the Army, so that no suppression could be alleged, and (vii)

the interpretation being placed by the MHA on Rule 5(c) of the 1979

18

“the 2019 Rules”, hereinafter

W.P.(C) 3427/2023 Page 8 of 25

Rules as amended in 2012 was incorrect. Additionally, the petitioner

points out, in the writ petition, that Proforma IV had already been

submitted by him, and the earlier communications from the UPSC to

the petitioner were to submit his ESM Discharge Book. In these

circumstances, the petitioner requested that no coercive action be

taken against him.

14. There was no response to the aforesaid communication from the

UPSC.

15. The petitioner was discharged from the Army on 31 March

2022.

16. The UPSC released the revised results twice; firstly, on 5

September 2022 and later on 19 January 2023. The petitioner’s name

was not figuring in the list of successful candidates. Rather, a

Scheduled Tribe candidate was recommended for appointment in his

place.

17. It is in these circumstances that the petitioner has approached

this Court by means of the present writ petition, praying that the

cancellation of his candidature in the ESM category for recruitment as

AC, following the 2019 examination, be quashed and set aside and

that he be appointed as AC in the BSF in the ESM quota.

18. Counter-affidavits have been filed by the DOPT, the UPSC and

the CRPF. The counter-affidavit of the CRPF merely adopts the

averments in the counter-affidavits of the UPSC and the DOPT. The

W.P.(C) 3427/2023 Page 9 of 25

petitioner has also filed rejoinders to the counter-affidavits of the

UPSC and the DOPT.

III. Counter-affidavit by UPSC

19. The UPSC, in its counter-affidavit, has re-asserted Rule 5(c) of

the 1979 Rules as amended in 2012. It is submitted that the period of

one year, under Rule 5(c), has necessarily to be reckoned from the last

date for submission of applications for participation in the

examination. The said clause, it is pointed out, is not under challenge

and the petitioner is bound thereby. Reliance is placed on the

undertaking accompanying the applications submitted by the

petitioner at the time of applying for participation in the examination,

agreeing that the appointment would be subject to production of

documentary evidence by him, to the satisfaction of the Appointing

Authority, that he had been released/retired/discharged from the

Armed Forces.

20. The UPSC further submits that the ESM status of the petitioner

could not be verified at the time of scrutiny of his DAF, as the

supporting documents had not been uploaded by him. Instead, the

petitioner uploaded an FIR dated 6 November 2019, which purported

to state that the documents had been stolen. The original documents,

which were submitted by the petitioner after he had qualified the

PST/PET and the MST, and was appearing for interview on 11

November 2020 included the Serving Personnel Certificate issued by

the Commandant, which clearly stated that the petitioner’s

engagement with the Army was coming to an end only on 31

W.P.(C) 3427/2023 Page 10 of 25

December 2020. Rule 5(c) of the 1979 Rules, as amended in 2012,

required the candidate to be discharged from the Armed Forces within

a year of the last date for submission of the application, i.e., on or

before 19 May 2020. As the petitioner was completing his

engagement with the Army only on 31 December 2020, he was not

eligible for the post of AC.

IV. Counter-affidavit of DOPT

21. The DOPT, in its counter-affidavit, has echoed the stand of the

UPSC insofar as the interpretation of Rule 5(c)(i) of the 1979 Rules is

concerned, and has stated that the candidate was required to be

released/discharged from the Armed Forces mandatorily on or before

19 May 2020. Reliance has been placed on paras 23 and 24 of the

judgment of a Division Bench of this Court in Mukesh Kumar v.

UOI

19

which, it is stated, involved an identical issue.

22. The UPSC also relies on DOPT OM dated 3 April 1991, the

opening paragraph of which reads as under:

“The undersigned is directed to refer to the explanation below Rule

2 (c) of the Ex-Servicemen (Re-employment in Central Civil

Services and Posts Rules, 1979 and the Notification of Personnel

and Training Department No. 36034/5/85-Estt.(SC), dated

27.10.1986, according to which officials, who are working in

Armed Forces and would come under Ex-Servicemen category

after their retirement are permitted to apply for the re-employment,

a year before their completing the prescribed period. The matter of

applying uniform procedure for accepting the status of Ex-

Servicemen for such employees as are working in Armed Forces

Service and applying for civil posts on Reemployment basis, has

been under consideration in this Department for some time. It has

19

2020 SCC OnLine Del 1908

W.P.(C) 3427/2023 Page 11 of 25

now been decided that in accordance with the above "clarification",

a candidate working in Armed Forces would become eligible for

applying civil posts only when he completes the prescribed period

of Army Service within a year from the last date for receiving

application in connection with Special Recruitment/Examination,

etc., prescribed by the Competent Authority.”

(Emphasis supplied)

23. It was only consequent to the observations and directions

contained in the judgment in Mukesh Kumar, submits the DOPT, that

the OM dated 3 April 1991 was amended by adding a proviso in Para

3 of the OM dated 27 February 2023. The OM, after addition of the

proviso, reads as under:

“Candidate working in Armed Forces would become eligible for

applying civil posts only when he completes the prescribed period

of Armed Forces Service within a year from the last date for

receiving application in connection with Special Recruitment/

Examination, etc., prescribed by the Competent Authority.

Provided when selection process takes more than one year, from

the last date of receiving of applications, the candidate will not be

declared ineligible under Ex-servicemen category only on the

ground that he has got himself released from Armed Forces after

one year from the last date of receiving application.”

24. In tune with the OM dated 27 February 2023, a revised

Proforma IV and undertaking were also provided. It is submitted that

the OM was not in existence at the time when the petitioner filled the

application form and that he cannot, therefore, seek to derive the

benefit thereof.

V. Petitioner’s rejoinder to UPSC

25. The petitioner, in his rejoinder to the UPSC, questioned the

correctness of the manner in which Rule 5(c) was being interpreted by

W.P.(C) 3427/2023 Page 12 of 25

the UPSC and by the DOPT. The petitioner submitted that Rule 5(c)

commenced with the words “for appointment”, and referred to “direct

recruitment on the results of the AICE”. In other words, submitted the

petitioner, the earliest date, from which the period of one year for the

purposes of Rule 5(c) could be reckoned, could only be the date of

declaration of the results.

26. It was submitted that any other interpretation would lead to an

incongruous consequence in the event of discharge of the candidate

from the Armed Forces predating the announcement of the results, by

the UPSC, of the CAPF (ACs) examination. In case the candidate did

not qualify the Examination, he would be left neither with his job in

the Armed Forces nor with the job for which he aspired while

undertaking the Examination. Rule 5(c), it was submitted, could

never be intended to result in such an iniquitous and unhappy

outcome.

VI. Petitioner’s rejoinder to DOPT

27. Responding to the counter affidavit of the DOPT, the petitioner

submitted that the decision in Mukesh Kumar proceeded on a

concession, as it specifically noted that the petitioner before this Court

did not controvert the stand that the period of one year under Rule 5(c)

of the 1979 Rules was required to be computed from the last date for

submission of the application. The petitioner, on the other hand, was

seriously disputing the correctness of this interpretation.

28. Apropos the DOPT OM dated 3 April 1991, the petitioner

W.P.(C) 3427/2023 Page 13 of 25

submitted that (i) once the 1979 Rules had been amended on 4

October 2012, the DOPT OM dated 3 April 1991, which was issued

prior to the amendment of the 1979 Rules, ceased to have any

relevance, (iii) prior to the 2012 amendment, Rule 2(c) of the 1979

Rules required ESMs to apply for re-employment one year before

completion of their engagement with the armed forces, (iv) on the

other hand, the 2012 amendment amended Rule 5 of the 1979 Rules to

include recruitment in Group-A and Group-B of the CAPF through the

AICE and (v) a similar view had been taken by the Division Bench of

this Court in Mukesh Kumar.

VII. Submissions before this Court

29. During oral arguments before us, learned Counsel have more or

less reiterated the aforesaid submissions.

30. Additionally, Mr. Avinash, appearing for the petitioner, submits

that his client had applied for discharge from the Army on 6 February

2021, and his case for discharge had also been recommended by the

Army in March 2021 itself. The delay in discharge of the petitioner

was attributable to the Army – albeit due to the COVID pandemic.

Had the Army discharged the petitioner in time, he could have joined

the CAPFs.

31. Moreover, submits Mr. Avinash, the parentheses in Rule 5(c) of

the 1979 Rules uses the words “due to be completed”, and not

“completed”. There is no dispute that the petitioner’s assignment with

the Army was due to be completed on 31 December 2020. The actual

W.P.(C) 3427/2023 Page 14 of 25

date of completion was irrelevant.

32. Mr. Ravinder Agrawal, appearing for the UPSC, additionally

places reliance on Note II under the head “Eligibility Conditions” in

the UPSC Notification dated 24 April 2019 notifying the Examination,

which reads:

“Note II: The term Ex-Servicemen will apply to the persons who

are defined as Ex-Servicemen in the Ex-Servicemen (Re-

employment in Civil Services and Posts) Rules, 1979, as amended

from time to time.”

Mr. Agarwal reads, with this Note, the following definition of “ex

serviceman” in the 1979 Rules as amended in 2012:

“(c) An ‘ex-serviceman’ means a person –

(i) who has served in any rank whether as a combatant

or non-combatant in the Regular Army, Navy and Air Force

of the Indian Union, and

(a) who either has been retired or relieved or

discharged from such service whether at his own

request or being relieved by the employer after

earning his or her pension; or

(b) who has been relieved from such service on

medical grounds attributable to military service or

circumstances beyond his control and awarded

medical or other disability pension; or

(c) who has been released from such service as

a result of reduction in establishment;

or

(ii) who has been released from such service after

completing the specific period of engagement, otherwise

than at his own request, or by way of dismissal, or

discharge on account of misconduct or inefficiency and has

been given a gratuity; and includes personnel of the

Territorial Army, namely, pension holders for continuous

embodied service or broken spells of qualifying service;

W.P.(C) 3427/2023 Page 15 of 25

ог

(iii) personnel of the Army Postal Service who are part

of Regular Army and retired from the Army Postal Service

without reversion to their parent service with pension, or

are released from the Army Postal service on medical

grounds attributable to or aggravated by military service or

circumstance beyond their control and awarded medical or

other disability pension;

or

(iv) Personnel, who were on deputation in Army Postal

Service for more than six months prior to the 14th April,

1987;

or

(v) Gallantry award winners of the Armed forces

including personnel of Territorial Army;

or

(vi) Ex-recruits boarded out or relieved on medical

ground and granted medical disability pension.”

33. Mr. Agrawal further relies on the DOPT OM dated 3 April

1991, already cited supra. He finally draws attention to the

“Compendium on Reservation, Concessions and Relaxations for Ex-

Servicemen in Central Government Services” circulated by the DOPT

under OM dated 25 February 2014, which, referencing the DOPT OM

dated 3 April 1991, states thus:

“A candidate working in Armed Forces would become eligible for

applying civil posts only when he completes the prescribed period

of Army Service within a year from the last date for receiving

application in connection with Special Recruitment/Examination,

etc. prescribed by the competent authority. The pro-forma of the

certificate to be submitted along with the application form is given

O.Μ. No.36034/2/91-Estt (Res) dated 3rd April, 1991. Since the

appointment of such a candidate is subject to his submitting

documentary evidence that he has been duly

released/retired/discharged from the Armed Forces and qualified as

an Ex-Servicemen, such a candidate shall be required to submit

along with his application an undertaking duly signed by him in the

format as mentioned in (O.M. 36034/2/91-Estt(Res) dated 3rd

April, 1991.”

W.P.(C) 3427/2023 Page 16 of 25

B. Analysis

34. The dispute substantially pivots around Rule 5(c) of the 1979

Rules as amended in 2012, though the UPSC has also sought to

defend the cancellation of the candidature of the petitioner on the

ground that he had misstated facts and suppressed material.

35. Both sides relied, before us, on Mukesh Kumar, rendered by a

Division Bench of this Court. The facts, and the dispute before the

Court, were nearly identical to those before us. That decision cannot,

however, be of any substantial precedential value, as the interpretation

placed by the UPSC on Rule 5(c)(i) of the 1979 Rules as amended in

2012 was not controverted by the petitioner Mukesh Kumar. This is

specifically noted in para 13 of the report:

“13. We are unable to agree. The aforesaid Rule only defines an

‘ex-serviceman’ for the purposes of Ex-servicemen (Re-

employment in Central Civil Services and Posts) Rules but does

not provide the date on which the applicant should qualify as an

ex-serviceman. The counsel for the petitioner has not controverted

the plea and contention of the counsel for the respondents UPSC,

of the cut-off date in the present case being of one year from

21

st

May, 2018. The petitioner was thus required to be an ex-

serviceman within one year of 21

st

May, 2018. The contention of

the petitioner in this regard is, that since he was to complete 15

years of service within one year of 21

st

May, 2018 and whereafter

he could have sought release from the India Army at any time, he

so qualified. However the Rule aforesaid relied upon by the

counsel for the petitioner, does not provide so.”

(Emphasis supplied)

Kulwant Kaur v. Gurdial Singh Mann

20

clearly holds that a decision

which proceeds on a concession, which is accepted by the Court, has

no precedential value whatsoever:

20

(2001) 4 SCC 262

W.P.(C) 3427/2023 Page 17 of 25

“2. Concession, if made and in the event the court proceeds on

the basis of such a concession, the decision cannot by any stretch

be termed to be a binding precedent and as such the previous

decision

21

does not and cannot have the sanctity and solemnity of a

binding precedent.”

Having thus conceded to the UPSC’s interpretation of Rule 5(c)(i) of

the 1979 Rules as amended in 2012, the petitioner before this Court in

Mukesh Kumar did not produce any material to show that his

assignment with the Army was to be completed within one year of the

cut-off date, which was conceded, ad idem, to be the last date for

submission of applications. Ergo, the Court held that no relief could

be granted to him.

36. The Division Bench, in Mukesh Kumar, proceeded on the basis

of the concession regarding the interpretation of Rule 5(c)(i). The

decision cannot, therefore, constitute a useful precedent for the

controversy before us, in which the petitioner seriously joins issue

with the respondent regarding Rule 5(c)(i) and its proper meaning and

construction.

37. We also agree with Mr. Avinash that the DOPT OM dated 5

April 1991 is also of no relevance, as it was issued prior to the

amendment of Rule 5 of the 1979 Rules in 2012. The paragraph from

the said OM, on which Mr. Agrawal relies, is in the context of the

explanation below Rule 2(c) of the 1979 Rules. This Explanation

formed part of Rule 2(c) of the 1979 Rules as amended by the Ex-

servicemen (Re-employment in Central Civil Services and Posts)

21

Banarsi Dass v. Brig. Maharaja Sukhjit Singh, (1998) 2 SCC 81

W.P.(C) 3427/2023 Page 18 of 25

Amendment Rules, 1986

22

. Rule 2(c) of the 1979 Rules, which

defined “ex-servicemen”, read, post the 1986 Amendment, thus:

“2. In Rule 2 of the Ex-servicemen (Re-employment) in

Central Civil Services and Posts), Rules 1979, for clause (c), the

following clause shall be substituted, namely”

(c) ‘ex-serviceman’ means a person, who has served in

any rank (whether as a combatant or as a non-combatant) in

the Regular Army, Navy and Air Force of the Indian Union

but does not include a person who has served in the

Defence Security Crops, the General Reserve Engineering

Force, the Lok Sahayak Sena and the para military forces;

and

(i) who has retired from such service after

earning his/her pension; or

(ii) who has been released from such service on

medical grounds attributable to military service or

circumstances beyond his control and awarded

medical or other disability pension; or

(iii) who has been released, otherwise than on his

own request, from such service as a result of

reduction in establishment; or

(iv) who has been released from such service

after completing the specific period of engagement,

otherwise than at his own request or by way of

dismissal or discharge on account of misconduct or

inefficiency, and has been given a gratuity, and

includes personnel of the Territorial Army of the

following categories, namely:

(i) pension holders for continuous embodied service;

(ii) persons with disability attributable to military

service; and

(iii) gallantry awarded winners.

Explanation: The persons serving in the Armed Forces of the

Union, who on retirement from service, would come under the

category of ‘ex-servicemen’, may be permitted to apply for re-

22

“the 1986 Amendment Rules” hereinafter

W.P.(C) 3427/2023 Page 19 of 25

employment one year before the completion of the specified term

of engagement and avail themselves of all concessions available to

ex-servicemen but shall not be permitted to leave the uniform until

they complete the specified term of engagement in the Armed

Forces of the Union.”

The 1991 OM was, therefore, issued in the context of re-employment

of ex-servicemen under the Explanation to Rule 2(c) of the 1979 Rules

as amended in 1986. The Explanation specifically required the re-

employment to be within a year of application. We are not concerned

with re-employment. Besides, this Explanation was also removed

from Rule 2(c) in the 2012 Amendment, as is apparent from the

amended Rule 2(c), extracted in para 32 supra.

38. The DOPT OM dated 3 April 1991, therefore, has no relevance

to the issue before us.

39. For the same reason, we are not persuaded to rely on the DOPT

OM dated 25 February 2014, and the Compendium circulated

thereunder. We have reproduced, in para 33 supra, the paragraph from

the said Compendium on which Mr. Agrawal seeks to rely. We are

constrained to say that the OM has been issued without proper

application of mind, as the paragraph relies on the 3 April 1991 OM,

and merely reiterates it, without noticing that the 1991 OM was based

on the Explanation below Rule 2(c) of the 1979 Rules as amended in

1986, which was subsequently removed when the Rules were further

amended in 2012.

40. Insofar as the intepretation of Rule 5(c)(i) of the 1979 Rules,

with which we are concerned, is involved, therefore, we have, before

W.P.(C) 3427/2023 Page 20 of 25

us, a tabula rasa.

41. Mr. Agrawal contends that the period of one year, for applying

the inclusive parenthetical clause in Rule 5(c)(i), has to be reckoned

from the last date for submission of applications for participating in

the Examination. Per contra, Mr. Avinash asserts that the period of

one year can, at the earliest, be counted only from the date when the

results of the Examination are declared.

42. We have already dealt with the grounds on which Mr. Agrawal

predicates his case, and found them to be without substance.

43. While there is no definite indicator on the basis of which we

can definitively state that the framers of the 2012 Amendment Rules

intended the period of one year to be reckonable from the date when

the results of the Examination were announced, in the absence of

anything to the contrary, we are of the view that the contention of Mr.

Avinash, to this effect, deserves to be accepted.

44. Rule 5(c)(i), as amended by the 2012 Amendment Rules, starts

with the words “For appointment to any vacancy in Group A or Group

B services or posts”. The stipulations which follow thereafter are,

therefore, to be understood as being specified for the purpose of

appointment to the Group A or Group B vacancies – in this case, for

the vacancies of AC.

45. The clause goes on to say that the appointment would be made

“on the results of” the AICE. Thus, the results of the AICE are the

W.P.(C) 3427/2023 Page 21 of 25

determinative criterion on the basis of which the appointments are to

be made. One who succeeds, is to be appointed; one who does not, is

not.

46. When the parenthesized words “those whose assignment is due

to be completed within one year” are juxtaposed with these

specifications, there is logic in Mr. Avinash’s submission that the

period of one year should be reckoned from the date of declaration of

the results of the AICE.

47. As against this, there is absolutely nothing to support Mr

Agrawal’s interpretation that the period of one year should be

reckoned from the last date of submission of the application for

participating in the Examination.

48. Indeed, if this were so, the MHA Notification dated 24 April

2019, whereby the Examination was notified, ought to have said so.

49. Apparently aware of this lacuna, Mr. Agrawal sought to rely on

Note II under the head “Eligibility Conditions” in the MHA

Notification, in conjunction with the definition of “ex-serviceman” in

the 1979 Rules as amended in 2012.

50. We have extracted these provisions in para 33 supra. We find

nothing, in them, to support Mr. Agrawal’s interpretation of Rule

5(c)(i) of the 1979 Rules. Note II merely states that the term “ex

servicemen” would be as per the definition of the expression in the

1979 Rules as amended in 2012. The definition of “ex serviceman”,

W.P.(C) 3427/2023 Page 22 of 25

in the 1979 Rules, as amended, no doubt refer to persons who have

been released, or relieved, retired or discharged, but this clause, which

is merely in the nature of a definition, has obviously to be read with

the substantive Rule 5(c)(i), which extends the benefit of appointment

to Group A and Group B posts to persons who would retire within one

year. It is obvious that the two clauses have to be construed

harmoniously. If the manner in which Mr. Agrawal seeks to interpret

Rule 5(c) of the 1979 Rules, as amended, is to be accepted, the words

“including those whose assignment is due to be completed within one

year”, as contained in Rule 5(c)(i), would be rendered totally otiose,

and have no application whatsoever.

51. It is also settled that, in such cases, the benefit of any ambiguity

has to enure to the benefit of the candidate, and not the

administration.

23

52. We are, therefore, inclined to accept Mr Avinash’s contention

that the period of one year has to be reckoned from the date when the

results of the Examination are announced. We make it clear that we

are adopting this interpretation not as a legal principle, but in the facts

of the present case in which Rule 5(c)(i) is silent regarding the date

from which the period of one year is to be reckoned. We are

influenced, in adopting this interpretation, with the purpose of

ensuring that substantial justice is done.

53. We are not inclined to hold the petitioner to be disentitled to

appointment, or to uphold the cancellation of his candidature, on the

23

Refer Parvaiz Ahmad Parry v. State of J&K, (2015) 17 SCC 709 [Para 15]

W.P.(C) 3427/2023 Page 23 of 25

ground of misstatement and suppression of fact. The observations of

the UPSC, in the communication dated 17 August 2021 to the

petitioner, in this regard, to our mind, are insufficient to justify such

allegations, which are serious and not to be lightly levelled.

54. The observation that the petitioner had falsely stated, at the time

of PET/PST, that he had lost his Discharge Certificate, we feel, is

unfair. The UPSC has not doubted the fact that the petitioner did lose

his bag, and that an FIR had been lodged in that regard. It is also not

in dispute that the requisite documents were later tendered by the

petitioner – indeed, the petitioner’s candidature has not been cancelled

for want of submission of any documents. In the circumstances, we

feel that the petitioner’s submission that he had, in the mentally

traumatised circumstances in which he was, having lost his bag which

contained all his certificates and other documents, erroneously stated,

in the FIR, that he has lost his Disharge Certificate, instead of his

Service Personnel Certificate, merits acceptance.

55. Equally, we find no substance in the allegation, in the

communication dated 17 August 2021, that there was “contradiction”

in the entries contained in the DAF as filled in by the petitioner. The

petitioner had applied for consideration as an ESM. This obviously

meant that he had been employed with the Armed Forces. The

statement that he had not been earlier employed had, obviously, to be

understood in that light, and we find the explanation, of Mr. Avinash,

that the petitioner intended to convey that he had never been

employed with the CAPFs, to be worthy of acceptance. Indeed, else,

the very query as to whether the petitioner had earlier been employed,

W.P.(C) 3427/2023 Page 24 of 25

once he had applied for consideration as an ESM, would be rendered

redundant and superfluous.

56. The cancellation of the petitioner’s candidature cannot,

therefore, be sought to be justified on the ground that he had resorted

to any misstatement or suppression of fact.

57. We are, therefore, inclined to set aside the cancellation of the

petitioner’s candidature.

58. Having said that, we find one impediment in directing

appointment of the petitioner against the ESM vacancy against which

he applied. The petitioner has, in para 27 of the writ petition, candidly

acknowledged that another candidate, belonging to the Scheduled

Tribes, was recommended against that vacancy. The petitioner ought,

in all fairness, to have impleaded the said candidate. (Indeed, in

Mukesh Kumar, the selected candidate was impleaded.) He has not

done so. As a result, no vacancy was reserved for the petitioner by this

Court, unlike the position which obtained in Mukesh Kumar. We do

not, therefore, know if the ESM vacancy, against which the petitioner

applied, is still available. No submissions were advanced before us on

that score, and the written submissions filed before us are also silent

on the point.

C. Conclusion

59. As a result, this writ petition is allowed to the following extent:

W.P.(C) 3427/2023 Page 25 of 25

(i) The cancellation of the petitioner’s candidature for the

post of AC in the BSF as an ESM, consequent to the CAPF

(ACs) Examination 2019, is quashed and set aside.

(ii) In the event that an ESM vacancy of AC is still available,

the candidature of the petitioner is directed to be further

processed for appointment against the said vacancy.

(iii) The petitioner would, in that event, be entitled to be

appointed as AC with others who participated with him, and to

all consequential benefits including seniority, continuity of

service and fixation of pay, but not to any arrears of salary.

60. There shall be no orders as to costs.

C. HARI SHANKAR, J.

OM PRAKASH SHUKLA, J.

MARCH 09, 2026

DSN/AR