Himachal Pradesh High Court
Babu Ram vs State Of Himachal Pradesh on 9 May, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 9TH DAY OF MAY 2022 BEFORE .
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ, CHIEF JUSTICE & HON'BLE MR. JUSTICE SANDEEP SHARMA CIVIL WRIT PETITION NO. 6443 OF 2021 AND CONNECTED MATTERS Between:-
1. CIVIL WRIT PETITION NO. 6443 OF 2021 BABU RAM S/O LATE SH. SIHNOO RAM VILLAGE BARNAHAN, P.O. LOHARGHAT, TEHSIL RAMESHEHER, DISTRICT SOLAN, H.P. PIN 174 102 PRESENTLY POSTED AT G.M.S. (TGT ARTS) MACHHOON, U/S G.S.S.S. LAEDAGHAT, DISTRICT SOLAN, PIN 174 102 PETITIONER (BY MUNISH DATWALIA, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH THROUGH THE SECRETARY (EDUCATION) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA 2.
2. THE STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (PERSONAL) TO THE GOVERNMENT OF HIMACHAL PRADESH.
3. THE DIRECTOR, ELEMENTARY EDUCATION, HIMACHAL PRADESH, SHIMLA-1.
RESPONDENTS (MR.. VIKAS RATHORE, ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 2 ADDITIONAL ADVOCATE GENERAL)
2. LETTERS PATENT APPEAL NO. 70 OF 2020
1. STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (EDUCATION) TO THE GOVERNMENT OF HIMACHAL PRADESH .
2. STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (PERSONNEL) TO THE GOVERNMENT OF HIMACHAL PRADESH
3. THE DIRECTOR OF HIGHER EDUCATION LALPANI, SHIMLA-01, H.P.
4. THE DIRECTOR OF ELEMENTARY EDUCATION LALPANI, SHIMLA-01 APPELLANTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL) AND
1. JEET RAM S/O SH. BIDHU RAM, R/O VILLAGE JHARET THAKRAN, P.O. JHARET JAGGIAN, TEHSIL PALAMPUR, DISTT. KANGRA, PRESENTLY WORKING AS TGT (ARTS) AT GSSS RAJHOON, TEHSIL PALAMPUR, DISTT. KANGRA, H.P.
2. SH. DINESH KUMAR S/O SH. KISHORI LAL R/O VILLAGE & POST OFFICE KHURWAN, TEHSIL BANGANA, DISTT.
UNA, PRESENTLY WORKING AS TGT (ARTS) AT GHS KIARIAN, DISTT. UNA, H.P.
3. SH. ANIL KUMAR S/O SH. SUNIT CHAND R/O V&PO LAHAT, TEHSIL JAISINGPUR, DISTT. KANGRA, PRESENTLY WORKING AS TGT(ARTS) AT GSSS PAHRA, TEHSIL PALAMPUR, DISTT. KANGRA, H.P.
4. SH. MEEN CHAND S/O SH. CHUNI LAL, R/O VILLAGE SANAUR, P.O. GHALNI, TEHSIL SUNNI, DISTT. SHIMLA, PRSENTLY WORKING AS TGT(ARTS) AT GHS BANOT, U/C GSSS PAHAL, SUB TEHSIL DHAMI, DISTT. SHIMLA, H.P. PERFORMA RESPONDENTS ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 3
5. SH. UDAI SINGH S/O SH. UTTAM SINGH DHADWAL, R/O V&PO LOWER KHERA, TEHSIL PALAMPUR, DISTT. KANGRA, PRESENTLY WORKING AS LECTURER ENGLISH AT GSSS PUNNER, DISTT.
KANGRA, H.P.
6. SH. KEWAL SINGH S/O SH. SURJAN RAM, .
R/O V& PO SHAHPUR, TEHSIL SHAHPUR, DISTT. KANGRA, PRESENTLY WORKIGN AS LECTURER POLITICAL SCIENCE AT GSSS TUNDI, DISTT. CHAMBA, H.P. RESPONDENTS
7. SH. JASBIR SINGH KATOCH S/O SH.
RANDHIR SINGH KATOCH, R/O V&PO INDORA, DISTT. KANGRA, PRESENTLY WORKING AS TGT(ARTS) AT GSSS KALIARA, TEHSIL DHARAMSHALA, DISTT. KANGRA, H.P.
8. SH. PARVEEN KUMAR S/O SH. RIKHI RAM, R/O V&PO HAR JALARI HAR, TEHSIL & DISTT. KANGRA, PRESENTLY WORKING AS TGT(ARTS) AT GMSSS KOTHAR RANITAL, DISTT. KANGRA, H.P.
9. SH. RAJESH GULERIA, S/OS SH. KAMER CHAND GULERIA, R/O V &PO SHAMIRPUR, TEHSIL & DISTT. KANGRA, PRESENTLY WORKING AS TRAINED GRADUATE TEACHER (ARTS) AT GSSS TIARA, TEHSIL PALAMPUR, DISTT.
KANGRA, H.P.
10. SH. BALDEV SINGH, S/O SH. RAVAN, R/O V&PO DOLE, TEHSIL JAWALI DISTT.
KANGRA, PRESENLTY WORKING AS TGT(ARTS) AT GOVT. MIDDLE SCHOOL DHEWA, U/C GHS NANAHAR, TEHSIL JAWALI, DISTT. KANGRA, H.P.
11. SH. KIRHSAN DEV S/O SH. INDER PAL, R/O VILLAGE SEKHAL, P.O. BHARMAR, TEHSIL JAWALI, DISTT. KANGRA, PRESENTLY WORKING AS TGT(ARTS) AT GSSS BHARMAR, TEHSIL JAWALI, DISTT. KANGRA, H.P.
12. SH. MANJEET SINGH S/O SH. RAJMAL, R/O VILLAGE MUNDLA, P.O. LADWARA, TEHSIL SHAHPUR, DISTT. KANGRA, PRESENLTY WORKING AS TGT(ARTS) AT GHS PREI, TEHSIL SHAHPUR, DISTT.
KANGRA, H.P. ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 4
13. SH. SURENDER KUMAR S/O SH.
KISHORE CHAND, R/O V&PO SAKOH, TEHSIL DHARAMSHALA, DISTT.
KANGRA, PRESENTLY WORKING AS TGT(ARTS) AT GOVT. MIDDLE SCHOOL, MANOH, U/C GSSS REHLU, TEHSIL SHAHPUR, DISTT. KANGRA, H.P. .
14. SH. KARNAIL SINGH S/O SH. NATHU RAM, VILLAGE TADHO, P.O. FATHU-KA-
BAGH, TEHSIL NURPUR, DISTT.
KANGRA, PRESENLTY WORKING AS TGT(ARTS) AT GOVT. MIDDLE SCHOOL MAKROLI, TEHSIL NURPUR, DISTT.
KANGRA, H.P.
15. SH. PARVEEN SINGH S/O SH. FAQUIR SINGH, R/O VILLAGE RAROH, P.O. SUNET, TEHSIL FATEHPUR, DISTT.
KANGRA, PRESENTLY WORKING AS TGT(ARTS) AT GOVT. MIDDLE SCHOOL LARHOON, U/C GGSSS FATEHPUR, DISTT. KANGRA, H.P.
16. SH. SWARN KUMAR S/O SH. SALIG RAM, R/O V&PO SAROTRI, TEHSIL BAROH, DISTT. KANGRA, PRSENLTY WORKING AS TGT(ARTS) AT GOVT. MIDDLE SCHOOL CHANETA, U/C GSSS DARANG, TEHSIL PALAMPUR, DISTT. KANGRA, H.P.
17. SH. SATISH KUMAR S/O SH. NIDHI RAM, R/O V& PO DAGOH, TEHSIL JAISINGPUR, DISTT. KANGRA, PRESENTLY WORKING AS GSSS(ARTS) AT GHS KHAJURNOO, DISTT. KNGRA, H.P.
18. SH. ASHOK KUMAR S/O LATE SH. GIAN CHAND, R/O VILLAGE CHARJEHI, P.O. MEHAL, TEHSIL BHORANJ, DISTT.
HAMIRPUR, PRESENTLY WORKIGN AS GSSS(ARTS) GSSS BHORANJ, DISTT.
HAMIRPUR, H.P.
19. SH. KAMLESH KUMAR, S/O SH. VIDYA SAGAR, R/O V&PO ANDRAD, TEHSIL SALOONI, DISTT. CHAMBA, PRESENTLY WORKING AS GSSS(ARTS) AT GSSS BANIKHET, DISTT. CHAMBA, H.P.
20. SH. SOM DUTT S/O SH. DHANI RAM, R/O V& PO CHAKMOH, TEHSIL BIJHARI, DISTT. HAMIRPUR, PRESENTLY WORKING AS GSSS(ARTS) AT GOVT.
MIDDLE SCHOOL, NAIN RAPPER U/C ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 5 GSSS GHANGOT, TEHSIL BIJHARI, DISTT. HAMIRPUR, H.P.
21. SH. PARAMJIT THAKUR S/O SH.
GODHAM RAM, R/O VILLAGE GULEHI, P.O. BHARARI, TEHSIL BHARMOUR, DISTT. CHAMBA, PRESENTLY WORKING AS GSSS(ARTS) AT GHS NAYARAN, .
TEHSIL BHARMOUR, DISTT. CHAMBA, H.P.
22. SH. SARWAN KUMAR S/O SH. MOTI RAM, R/O V&PO YOUL, TEHSIL DHARAMSHALA, DISTT. KANGRA, PRESENTLY WORKING AS GSSS(ARTS) AT GSSS DHULAUA, H.P.
23. SH. RAMESH KUMAR S/O SH. DHARAM SINGH,R/O VILLAGE CHAMYOLA, P.O. BANI, TEHSIL BARSAR, DISTT.
HAMIRPUR, PRESENTLY WORKING AS GSSS(ARTS) AT GSSS DHANET, UNA, DISTT. UNA, H.P.
24. SH. VARJEET MANKOTIA S/O SH. MILAP SINGH MANKOTIA, R/O V&PO TEARA, TEHSIL & r DISTT. KANGRA, H.P. PRESENTLY WORKING AS TGT(ARTS) AT GSSS NANDHER, TEHSIL & DISTT.
KANGRA, H.P.
25. SH. VIKAS SOOD, S/O SH. HEM RAJ R/O V&PO SHAMSHI, DISTT. KULLU, PRESNTLY WORKING AS TGT(ARTS) AT GHS SHAT, DISTT. KULLU,H.P.
26. SH. RAM PAL, S/O SH. MANSHA RAM, R/O VILLAGE KOT, P.O. CHAMIARI, TEHSIL BANGANA, DISTT. UNA, PRESENTLY WORKING A TGT(ARTS) AT GHS KOT, U/C GSSS SAROH, DISTT. UNA, H.P.
27. SH. MANOJ KUMAR S/O SH. RAM DASS, R/O VILLAGE GANOH, P.O. BANI, TEHSIL BARSAR, DISTT. HAMIRPUR, PRESENTLY WORKING AS TGT(ARTS) IN GOVT.
MIDDLE SCHOOL NARI, U/C GSSS CHALOLA, TEHSIL & DISTT. UNA, H.P. PERFORMA RESPONDENTS (BY MR. ONKAR JAIRATH, ADVOCATE)
3. CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 5641 OF 2020 ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 6 AMARJEET SINGH RANA S/O SH. SOHANLAL, VILLAGE & P.O. BARI KALAN, TEHSIL KHUNDIAN, DISTRICT KANGRA, H.P. (THROUGH LEGAL REPRESENTATIVES)
1.A SUNITA RANA W/O LATE SH. AMARJEET SINGH RANA
1.B ABHISHEK RANA S/O LATE SH.
.
AMARJEET SINGH RANA
1.C POONAM RANA D/O LATE SH.
AMARJEET SINGH RANA
1.D POOJA RANA D/O LATE SH AMARJEET SINGH RANA (RESIDENT OF BAR KHURAD, P.O. BARI KALAN, TEHSIL KHUNDIAN, DISTRICT KANGRA, H.P.) APPLICANT (BY MR. VIKAS RAJPUT, ADVOCATE) AND
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (EDUCATION) TO THE GOVERNMENT OF HIMACHAL PRADESH-171002.
2. THE DIRECTOR, ELEMENTARY EDUCATION, HIMACHAL PRADESH SHIMLA-H.P.
3. THE DEPUTY DIRECTOR, ELEMENTARY EDUCATION, KANGRA AT DHARAMSHALA, HIMACHAL PRADESH.
4. BLOCK ELEMENTARY EDUCATION OFFICER LAMBAGAON, TEHSIL JAISINGPUR, DISTRICT KANGRA, H.P. RESPONDENTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL)
4. CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO. 5644 OF 2020 SURESH KUMAR CHADHA S/O AMAR CHAND CHADHA VILLAGE AND P.O. BAIJNATH, TEHSIL BAIJNATH, DISTRICT KANGRA, H.P. APPLICANT (BY MR. VIKAS RAJPUT, ADVOCATE) AND ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 7
1. STATE OF HIMACHAL PRADESH THROUGH SECRETARY (EDUCATION) TO THE GOVERNMENT OF HIMACHAL PRADESH-171002.
2. THE DIRECTOR, ELEMENTARY EDUCATION, HIMACHAL PRADESH .
SHIMLA-H.P.
3. THE DEPUTY DIRECTOR, ELEMENTARY EDUCATION, KANGRA AT DHARAMSHALA, HIMACHAL PRADESH.
4. HEAD MASTER, GHS JHIKLI BHETH, TEHSIL BAIJNATH, DISTRICT KANGRA, H.P. RESPONDENTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL)
5. CIVIL WRIT PETITION NO. 6358 OF 2021 MANJEET KUMAR S/O LATE SH. NATHU RAM, VILLAGE BHATLOG, P.O. DHARMANA, TEHSIL RAMESHEHER, DISTRICT SOLAN, H.P. PIN 174 102 PRESENTLY POSTED AT GAHC SAI CHAROG, AS AYURVEDIC PHARMACIST, PIN 174102 PETITIONER (BY MR. MUNISH DATWALIA, ADVOCATE.
AND
1. STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (AYURVEDA) TOT EH GOVT. OF HIMACHAL PRADESH, SHIMLA 2
2. THE STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (PERSONAL) TO THE GOVERNMENT OF HIMACHAL PRADESH.
3. THE DIRECTOR AYURVEDA TO THE GOVERNMENT OF HIMACHAL PRADESH, BLOCK NO 26, SDA COMPLEX SHIMLA-1.
RESPONDENTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL).
::: Downloaded on - 24/12/2022 09:18:37 :::CIS 86. LETTERS PATENT APPEAL NO. 16 OF 2021
1. STATE OF HP THROUGH SECRETARY (GAD) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA, HIMACHAL PRADESH .
2. DIRECTOR, SAINIK WELFARE, DIRECTORATE OF SAINIK WELFARE, HP AT HAMIRPUR, HP APPELLANTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL) AND
1. SHRI GULWANT KUMAR S/O LATE SHRI JAMIT SINGH WORKING AS CLERK IN ZILA SAINIK WELFARE OFFICE, KANGRA AT DHARAMSHALA R/O VILL GHORAB, PO & TEH NAGROTA BAGWAN, DISTT KANGRA (HP) RESPONDENT (BY MR. PREM P. CHAUHAN, ADVOCATE)
7. LETTERS PATENT APPEAL NO. 34 OF 2021
1. STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (EDUCATION) TO THE GOVERNMENT OF HIMACHAL PRADESH.
2. STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (PERSONNEL) TO THE GOVERNMENT OF HIMACHAL PRADESH.
3. THE DIRECTOR OF HIGHER EDUCATION, LALPANI, SHIMLA-01.
4. THE DIRECTOR OF ELEMENTARY EDUCATION, LALPANI, SHIMLA-01 APPELLANTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL) AND
1. SH. AMAR NATH SON OF SH. BUDHI RAM, R/O VILLAGE BARWALA, P.O. GHAINA KALAN, TEHSIL DHARAMSHALA ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 9 DISTRICT KANGRA, HIMACHAL PRADESH PRESENTLY WORKING AS ART AND CRAFT TEACHER AT GOVERNMENT SENIOR SECONDARY SCHOOL, GANGROTI, DISTRICT KANGRA, H.P.
2. SH. MANOJ KUMAR S/O LATE SH.
.
PURSHOTTAM SINGH, R/O VILLAGE GARHBADSI, P.O. MALKHER, TEHSIL PALAMPUR, DISTRICT KANGRA, H.P. PRESENTLY WORKING AS LT AT GOVERNMENT SENIOR SECONDARY SCHOOL BARWALA, DISTRICT KANGRA.
3. SH. SATISH CHAND R/O SAINIK WELFARE COLONY, NEAR RAMNAGAR COLONY, RAIPUR TEA ESTATE, THAKIRDWARA, P.O. MARANDA TEHSIL PALAMPUR, DISTRICT KANGRA.
RESPONDENTS (BY MR. ONKAR JAIRATH, ADVOCATE)
8. CIVIL WRIT PETITION NO. 412 OF 2022 ANIL S/O LATE ROSHAN LAL VILLAGE V.O.O. DOHB, TEHSIL SHAHPUR, DISTRICT KANGARA, H.P. PRESENTLY POSTED AT G.S.S. SCHOOL REHLU, DISTRICT KANGRA, AT P.E.T. PETITIONER (BY MR. MUNISH DATWALIA, ADVOCATE ) AND
1. STATE OF HIMACHAL PRADESH THROUGH THE SECRETARY (EDUCATION) TO THE GOVT. OF HIMACHAL PRADESH, SHIMLA-2.
2. THE STATE OF HIMACHAL PRADESH THROUGH THE PRINCIPAL SECRETARY (PERSONAL) TO THE GOVERNMENT OF HIMACHAL PRADESH.
3. THE DIRECTOR, ELEMENTARY EDUCATION, HIMACHAL PRADESH, SHIMLA-1.
RESPONDENTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL) ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 10
9. CIVIL WRIT PETITION NO. 455 OF 2022 RAM SINGH, S/O SH. AMAR SINGH, AGED ABOUT 52 YEARS, PRESENTLY WORKING AS DRAWING MASTER IN GSSS DEHAR, R/O .
V&PO. NAGCHALA, TEH: BALH, DISTT: MANDI;
HP PETITIONER (BY MR. PREM P. CHAUHAN, ADVOCATE ) AND
1. STATE OF HP THROUGH SECRETARY (EDUCATION) TO THE GOVERNMENT OF HP, SHIMLA, HP
2. DIRECTOR OF ELEMENTARY EDUCATION, HP, SHIMLA, HP
3. DEPUTY DIRECTOR OF ELEMENTARY EDUCATION, MANDI, DISTT: MANDI, HP RESPONDENTS (BY MR. VIKAS RATHORE, ADDITIONAL ADVOCATE GENERAL) ___________________________________________________________ These appeals/petitions coming for orders this day, Hon'ble Mr. Justice Sandeep Sharma, delivered the following:
J U D G ME N T Since common question of law is involved in all the above captioned appeals and petitions and facts of the case are almost similar, this court after having clubbed all the cases heard them together and same are now being disposed of vide this common judgment. However, for the sake of clarity, facts of CWP No. 6443 of 2021 are being discussed herein below.
2. The petitioner who is an Ex-serviceman. after being retired from the armed forces, joined civil employment in the State of Himachal Pradesh as a Trained Graduate Teacher (Arts) with Education ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 11 Department on 28.6.2016, on contract basis and thereafter his services were regularized on 23.11.2019.
3. State of Himachal Pradesh framed the Demobilised Armed Forces Personnel (Reservation Of Vacancies In The Himachal State Non-
.
Technical Services) Rules, 1972 (hereinafter, 'Rules 1972') in order to provide benefits to the Ex-servicemen. Primarily we are concerned with rules 3 (1) and 5(1), which read as under:
"3. Reservation of vacancies: (1) [Fifteen percent of the vacancies in respect of all post viz. Class I, II, III and IV to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel or ex-servicemen who joined service or were commissioned on or after the 1st day of November, 1962 and are released any time thereafter. This 15% reservation in Class III and IV post will also include appointment of one dependent each of the family of those Defence Services Personnel who were killed in action or were disabled in action and rendered unfit for civil employment. Such dependent shall have to fulfil the requirements of the Recruitment and Promotion Rules of the post (s) to which they will be appointed, but they shall not be entitled for other benefits/concessions such as fixation of pay and seniority under rule 5(1):
Provided that whatever vacancies are left over due to non- availability of suitable ex-servicemen who joined service or were commissioned on or after 1st day of November, 1962, and the dependents a as provided above will be filled by suitable ex- servicemen who joined service or were commissioned before 1st day of November, 1962. The concession such as relaxation in age as provided in these rules shall also be admissible to such ex- servicemen. However, the benefit of counting the period of approved military service for the purpose of fixation of seniority and ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 12 pay as provided in rule 5(1) of these rules, shall not be admissible to such ex-servicemen.
5. Seniority and pay: (1) Only the period of approved military service rendered after attaining the minimum age prescribed for .
appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant Rules, shall count towards fixation of pay and seniority in that service. (This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex- servicemen who are already employed under State/Central Govt. against reserved posts)."
4. As per rule 3(1), fifteen percent of the vacancies in respect of all posts viz. Class I, II, III and IV to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel or ex-servicemen who joined service or were commissioned on or after the 1st day of November, 1962.
5. Rule 5(1) further provides that period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant Rules, shall count towards fixation of pay and seniority in that service. However, such benefit shall be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under State/Central Govt. against reserved posts.
6. It is pertinent to take note of the fact that some of the persons working in Prosecution Department of State of Himachal Pradesh, laid challenge to constitutional validity of Rule 5(1) in this court by way of ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 13 CWP No. 488 of 2001 titled Shri V.K. Behal and other v. State of H.P. and others, on the ground that those Ex-servicemen, who had not joined service in the armed force during emergency are not entitled to benefits in terms of the aforesaid rule 5(1). They contended before this court that the .
persons, who joined armed forces when situation in the country was normal do not do anything extraordinary, as such, there is no rationale for giving benefit to them of approved military service for the purpose of pay and seniority. Aforesaid writ petition subsequently came to be allowed vide judgment dated 29.12.2008 passed by Division Bench of this court, wherein rule 5(1) of the rules came to be read down to the extent it provides benefit of counting of past service rendered in armed forces for the purpose of counting their seniority in the civil service, which they joined in the category of posts reserves for Ex-servicemen. However, Division Bench held that in case rule 5(1) is to be upheld, entire benefit of same should be made available to those Ex-servicemen only, who joined the armed forces during emergency.
7. As a consequence of aforesaid finding, the Ex-servicemen, who did not participate or join armed forces during emergency, were held entitled to avail the benefit of reservation and fixation of pay but not counting of service towards seniority in the civil service. Besides above, Division Bench also held that benefit of such service cannot be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria, prescribed in the rules. Relevant para of aforesaid judgment is reproduced herein below:
"In view of the above discussion, the writ petition is allowed. the Provision of Rule 5(1) of the Rules are read down and they are held to be ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 14 unconstitutional in so far as they give benefit of counting the past army service towards seniority in civil employment in case of ex-servicemen who have not joined the Armed forces during the period of emergency. It is also held that the benefit of such service cannot be given from a date prior to the date when the ex-serviceman attains the minimum .
educational eligibility criteria prescribed in the rules. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. There shall be no order as to costs."
8. Though aforesaid judgment passed by Division Bench of this court was laid challenge before Hon'ble Apex Court in Civil Appeal No. 011060 of 2017, titled R.K. Barwall and other v. The State of Himachal Pradesh and others, but the same was dismissed on 25.8.2017 and as such, as of today, judgment passed in V.K. Behal supra has attained finality. After dismissal of SLP in R.K. Barwal's case, State of Himachal Pradesh, vide notification dated 29.1.2018 made certain amendments to rule 5(1) of the the Rules, 1972 to the following effect:
"For sub-rule (1) of the rule 5 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non- Technical Services) Rules, 1972, for the existing provisions of Sub rule (1), the following shall be substituted, namely:-
"Only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment to the service concerned, by the candidate (s) appointed against reserved vacancy under the relevant rules, shall count towards fixation of pay in that service at the time of first civil appointment against reserved vacancy. This benefit shall not be admissible in subsequent appointment (s) of Ex- Servicemen who are already employed under the State/Central Government, against reserved post(s).
Provided that such fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time."::: Downloaded on - 24/12/2022 09:18:37 :::CIS 15
9. As per aforesaid amendment in Rule 5, only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment to the service concerned, by the candidate (s) .
appointed against reserved vacancy is to be counted towards fixation of pay whereas in unamended rule 5 (1) there was no provision with regard to acquisition of qualification prescribed for the post in question. It appears that aforesaid amendment came to be effected in the Rules, pursuant to direction issued by Division Bench in V.K. Behal (supra), wherein court ordered that in all cases, past service with Armed Forces shall be counted from the date, when Ex-serviceman acquired the minimum educational qualification and no benefit can be given for army service rendered prior to date of attaining such qualification.
10. With the issuance of aforesaid Notification dated 29.1.2018, whereby rule 5 of the Rules came to be amended, Ex-servicemen who though stood appointed against a civil post in the State of Himachal Pradesh, prior to issuance of aforesaid Notification, are being denied benefit of counting of military service rendered by them, before their appointment under the Ex-serviceman quota for the purpose of pay fixation on the ground of qualification and as such, petitioners herein are compelled to approach this Court in the instant proceedings praying therein to set aside impugned Notification and communication dated 29.1.2018 and 30.1.2018. (Annexures P-5 and P-6 of CWP No. 6443 of 2020).
11. Prior to filing of the afore petitions, some of similar situate persons had approached erstwhile Himachal Pradesh Administrative Tribunal by ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 16 way of Original Applications which subsequently on account of abolition of the Tribunal came to be transferred to this court and were registered as CWPOA Nos. 5478 of 2020 (LPA No. 16 of 2020) No. 231 of 2019 ( LPA No. 34 of 2021 and NO. 237 of 2019 (LPA No. 70 of 2020). In all the .
above petitions, challenge came to be laid to Notifications dated 29.1.2018/30.1.2018, wherein benefit of approved military service for the purpose of pay fixation came to be denied to those petitioners on the ground of qualification. In all the aforesaid cases, respondent-State, while placing reliance on judgment of Division Bench in V.K. Behal supra, argued that the benefit of approved military service in terms of rule 5 (1) for the purpose of pay fixation can only be granted after attaining minimum age and educational eligibility criteria prescribed for appointment to the service concerned, by the candidates appointed under reserved vacancy under relevant rules. However, such plea of the State was not accepted by learned Single Judges of this Court. Learned Single Judges of this Court held the action of State in not giving benefit of approved military service towards fixation of pay bad in law and upheld that right by virtue of provision of sub-rule 1 of rule 5 of 1972 rules, which still exists. Learned Single Judges held that the Division Bench of this court in V.K. Behal supra has held grant of benefit of approved military service towards seniority in the cases of Ex-servicemen, who did not join armed force during emergency to be unconstitutional but at no point commented on that part of sub-rule (1) of rule 5, which deals with the grant of benefit of approved military service towards fixation of pay.
Learned Single Judges further held that Notification 29.12.2018 does not ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 17 adversely affect right of the petitioners for counting of approved military service towards fixation of pay and as such, such benefit cannot be refused to the petitioners on the ground of qualification.
12. Being aggrieved and dissatisfied with aforesaid judgments .
rendered by learned Single Judges in cases detailed herein above, State has filed Letters Patent Appeals captioned herein above, praying therein to set aside judgments passed by learned Single Judges and uphold its action in denying benefit of approved military service for the purpose of fixation of pay, to those persons, who had not attained minimum age and educational qualification prescribed for the service concerned, while being appointed to the posts reserved for that category.
13. Moot question, which needs to be determined /adjudicated in the cases at hand is that, whether the benefit of approved military service for the purpose of pay fixation in terms of sub-rule 1 of rule 5 of Rules, 1972, can be denied to the Ex-servicemen in terms of amendment carried out in aforesaid rule 5 vide Notification dated 29.1.2018, wherein it has been provided that only the period of approved military service rendered after attaining minimum age and educational qualification prescribed for the service concerned by the candidate against reserved vacancy shall count towards fixation of pay in that service at the time of first civil employment against reserved vacancy.
14. Mr. Vikas Rathore, learned Additional Advocate General representing the State, while inviting attention of this court to the judgment rendered by Division Bench in V.K. Behal supra, which has been further upheld by Hon'ble Apex Court, argued that in all cases, benefit of past ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 18 service can only be available from the date, when Ex-serviceman acquired age and minimum educational qualification and as such, no benefit can be given for the army service rendered prior to the date of acquiring educational qualification. Mr. Vikas Rathore, learned Additional .
Advocate General further argued that the Division Bench in V.K. Behal supra has held that Ex-servicemen though may avail benefit of fixation of but cannot be given benefit of past service towards their seniority in the civil service and such benefit can only be available from the date, when they acquired age and minimum educational qualification prescribed for the post in question. Learned Additional Advocate General further argued that Notification dated 29.1.2018 amending thereby rule 5 is strictly in conformity with the judgment passed by Division Bench in V.K. Behal supra and as such, same cannot be interfered with.
15. Per contra, learned counsel representing the respondents in the appeals and petitioners in the Civil Writ Petition/Civil Writ Petition (Original Application)s,, who are beneficiaries of provisions contained under rule 5 of the Rules 1972, contended that at no point of time, part of sub-rule 1 of rule 5 which deals with the relevant benefit, ever came to be dealt with by Division Bench while delivering decision in V.K. Behal and as such, observation, if any, made in the aforesaid judgment with regard to acquisition of qualification for availing benefit of approved military service cannot be attracted in those cases, where employees appointed against the posts reserved for this category are only seeking benefit of approved military service towards fixation of pay. While inviting attention of this court to judgment of Division Bench in Avtar Singh Dyal v. H.P. State ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 19 Electricity Board Ltd. CWP No. 4654 of 2013 and connected matter, decided on 26.11.2014, learned counsel for the petitioners argued that Ex-servicemen were held entitled for grant of benefit of counting the approved military service, towards fixation of pay. In support of their .
submissions, learned counsel for the petitioners also invited attention of this court to judgment passed by learned Single Judge dated 15.7.2020 in CWPOA No. 231 of 20119 titled Amar Nath and others v. State of Himachal Pradesh and others and connected matter, which has been otherwise laid challenge in above captioned appeals, by the State.
16. Having heard learned counsel for the parties and perused material available on record, this court finds that there is no dispute amongst the parties that the petitioners in the writ petitions as well as respondents in the Letters Patent Appeals having been filed by the State are Ex-
servicemen and they all have been appointed against the posts reserved for Ex-servicemen in various Departments of State of Himachal Pradesh.
17. Though, initially this category was getting benefit of approved military service in terms of Rule 5 (1) of the Rules, 1972, for counting seniority in service apart from fixation of pay but Division Bench of this Court in V.K. Behal supra, which has been further upheld by Hon'ble Apex Court, has read down rule 5(1) of the Rules, 1972, to the extent, it provided for counting of the approved military service towards seniority in the subsequent service of the State. It is also not in dispute that in V.K. Behal supra, Division Bench held that the benefit of past service can only be available from a date when Ex-serviceman acquired the age and ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 20 minimum educational qualification and no benefit can be given for the army service rendered prior to the date of acquisition of such qualification.
18. In compliance to aforesaid observation made by Division Bench of this Court in V.K. Behal supra, rule 5 was amended vide Notification .
dated 29.1.2018 providing therein that only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant Rules, shall count towards fixation of pay and seniority in that service.
19. Now drawing strength from the aforesaid amendment carried out in the said rule, benefit of approved military service towards fixation of pay is being restricted to the period of approved military service, rendered after attaining the minimum age and educational qualification prescribed for the post, on which such Ex-serviceman is appointed.
20. Since it is quite apparent from the judgment in V.K. Behal supra, that rule 5(1) has been read down to the extent it had provided benefit of counting approved military service towards seniority in the service, there cannot be any dispute qua the entitlement of Ex-serviceman for counting of approved military service towards fixation of pay. However, in the cases at hand, State by way of issuing Notifications dated 29.1.2018 and 30.1.2018 has attempted to deny benefit of approved military service to the Ex-serviceman for the purpose of pay fixation. Vide communication dated 30.1.2018, issued by Additional Chief Secretary to the Government of Himachal Pradesh to various officers of the State, it has been conveyed that in terms of judgment of this court in V.K. Behal, benefit of seniority as ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 21 per 1972 Rules and the Ex-servicemen.. (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985 are to be reviewed and seniority lists in all cadres are to be reframed accordingly showing position as on 29.12.2008, when this Court had read down and declared .
the rule 5(1) of the Rules, 1972 unconstitutional, insofar as it gives benefit of counting of past army service towards seniority in civil employment in the case of ex-servicemen, who have not joined the Armed forces during the period of emergency. However, the ex-servicemen appointed against the vacancies reserved for ex-servicemen in civil employment shall be entitled to avail the benefit of fixation of pay from a date when the ex-
servicemen attain minimum age and educational qualification eligibility criteria prescribed in the rules. The fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time.
The above referred instructions dated 17.5.2013 were rescinded accordingly.
21. There cannot be any quarrel with the fact that now Ex-servicemen who did not join the Armed Forces during period of emergency are not entitled to have benefit of approved military service for the purpose of seniority but the action of the State, in not giving benefit of approved military service towards fixation of pay of the ex-servicemen is not sustainable in the eye of law being arbitrary. Once aforesaid right stands conferred upon Ex-serviceman in terms of provisions of sub-rule 1 of rule-
5 of f1972 rules, which still exists in the rule book, amendment if any, carried out in the aforesaid rules after passing of judgment in V.K. Behal supra cannot be otherwise made applicable retrospectively qua those Ex-
::: Downloaded on - 24/12/2022 09:18:37 :::CIS 22servicemen, who otherwise stand appointed against the posts reserved for this category prior to issuance of Notification dated 29.1.2018. Perusal of aforesaid Notification which has been extracted herein above, clearly reveals that these amended rules were to come into force from the date of .
publication in Rajpatra/E-gazette of Himachal Pradesh i.e. 29.1.2018, meaning thereby that the Ex-servicemen who stood appointed prior to issuance of aforesaid Notification against the posts reserved for this category, otherwise cannot be denied benefit of approved military service towards fixation of pay, on the ground of minimum age and educational eligibility criteria.
22. Otherwise also, this issue is no more res integra in terms of judgment of this court in Avtar Singh Dyal case supra, wherein it has been held that right of Ex-serviceman to avail the benefit of counting approved military service towards fixation of pay in terms of sub-rule (1) of rule 5 of 1972 rules cannot be denied/defeated even if an Ex-
serviceman had not joined Armed Forces during emergency. Relevant paras of the aforesaid judgment are reproduced herein below:
"Rule 5(1) of the Demobilized Armed Forces Personnel (Reservation of vacancies in the Himachal Pradesh State Non- Technical Services) Rules, 1972, reads thus:
"(1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant rules, shall count towards fixation of pay and seniority in that service. This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under the State/Central Govt. against reserved posts."::: Downloaded on - 24/12/2022 09:18:37 :::CIS 23
8. In case the aforesaid rule is minutely analyzed, it would be seen that it comprises of two parts, 1st pertains to counting of service for the purpose of fixation of pay and 2nd pertains to counting of service for the purpose of seniority.
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9. The question therefore, required to be determined is as to whether this court while deciding V.K.Behal's case (supra) declined all the benefits provided under Rule 5(1) (supra) to those exservicemen, who admittedly had joined the Armed Forces as a career. In our humble and considered opinion the court has only adjudicated upon the benefit of counting of past army service towards seniority in civil employment and has not adjudicated upon the conferment of benefit of past army service in so far it pertains to fixation of pay. In fact this claim was neither agitated by the petitioners therein nor adjudicated upon by this court. Rather what appears from the perusal of judgment is that even the petitioners therein had no objection in case financial benefit like fixation of pay was granted to the ex-servicemen, as would be clear from para-3 of report, which reads as follows:-
"3. The main contention raised on behalf of the petitioners by Sh.Dalip Sharma is that the Rules are unconstitutional because they give benefit of even those ex-servicemen who had not joined service in the armed forces during the period of emergency.
According to the petitioners, the persons who join the armed forces when the situation in the Country is normal do not do anything extra-ordinary and they join the armed forces like any other career and therefore, there is no rationale for giving them benefit of the service rendered by them in the armed forces for the purposes of pay and seniority. Sh. Dalip Sharma, learned counsel for the petitioners had urged that he is not in any manner arguing that the ex-servicemen do not form a separate class. He submits that to satisfy the tests of Article 14 not only should the classification be justified but there should be a reasonable nexus with the object sought to be achieved. It is his submission that if the object is to rehabilitate the ex-serviceman this object is served by providing reservations to them. However, according to him, there is no justification in granting them the benefit of seniority by adding the period of service rendered by them in the Army. He submits that once the persons are recruited from various sources and become members of one service no further distinction can be made between them on the ground of the past service rendered in a totally unrelated employment. In the alternative he submits that the benefit, if any, should be restricted to grant of financial benefits like fixation of pay only and the rights of other individuals who joined service much before the ex-servicemen cannot be jeopardized by giving the ex-servicemen benefit of adding the service rendered by them in the armed forces for reckoning their ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 24 seniority. According to him, the case of ex-servicemen who joined armed forces during the period of emergency when the Nation was facing foreign aggression or when the sovereignty and integrity of the Country was at stake, stands on a completely different footing and the exservicemen who joined during emergency have to be treated as a different class. The benefit given to such ex-servicemen who joined during emergency .
cannot be extended to the person who joined service during normalcy. In the alternative it is urged that even if the Rule is held to be valid the deemed date of appointment cannot be from a date prior to such persons acquiring the minimum educational eligibility criteria prescribed in the Rules."
10. Notably even this court did not find any illegality in so far as the pay of ex-servicemen was protected, as would be clear from the following observations:-
"10. There may exist an intelligible criteria for providing reservation to ex-servicemen. The object is also reasonable i.e.. to rehabilitate the ex-servicemen but this object can be achieved by providing reservations to them.Nobody is against such reservation. Their pay can also be protected. The problem arises when there is a conflict between persons from the civil society who have joined service much earlier than the ex-servicemen but then they are placed lower when the ex-servicemen who are given benefit of their past service regardless of the fact whether they have joined during emergency or not."
11. Once this is the position, the respondents cannot under pretext of judgment in V.K.Behal's case (supra), being sub-judice before the Hon'ble Supreme Court, deny to the petitioners the benefit of approved military service for counting the same towards fixation of pay.
12. In so far as the question of counting the same towards the seniority is concerned, the same shall essentially have to abide by the decision of the apex court in V.K.Behal's case. In the event of the Hon'ble Supreme Court ultimately deciding in favour of the exservicemen, then needless to say that the same benefit shall also have to be extended to the petitioners.
13. With these observations, the petitions are partly allowed. The respondents are directed to grant the benefit of approved military service towards fixation of pay after considering their cases against the vacancies of ex-servicemen, which have arisen in the year 2012. The Registry is directed to place a copy of this judgment on the file of connected matter."
::: Downloaded on - 24/12/2022 09:18:37 :::CIS 2523. Amendment carried out in sub-rule 1 of Rule 5 vide Notification dated 29.1.2018, otherwise does not affect rights of the petitioners, who are claiming benefit of counting of approved military service towards .
fixation of pay. Government of Himachal Pradesh with a view to bring 1972 Rules in harmony with judgment of this Court in V.K. Behal supra has amended aforesaid rules providing therein that the approved military service shall be counted only for the period, when such Ex-serviceman acquired the minimum age and educational qualification. However, this court is of the view that provision of grant of benefit of approved military service for fixation of pay was very much in 1972 Rules and the same has not been altered /amended even by the amendment carried out vide Notification dated 29.1.2018 and as such, this court has no hesitation to conclude that the Notification dated 29.1.2018 does not affect the right of the Ex-serviceman for counting of approved military service towards fixation of pay
24. Learned Additional Advocate General vehemently argued that in terms of Notification dated 29.1.2018, ex-servicemen would be entitled to grant of benefit of approved military service towards fixation of pay prospectively from 29.1.2018 but such plea of him deserves outright rejection being devoid of merit. Service conditions of Ex-servicemen who joined civil employment are to be determined in terms of 1972 Rules, as it existed at the time ex-servicemen joined their services. When the ex-
servicemen joined their services, they were very much entitled for grant of approved military service towards fixation of pay. It cannot be disputed ::: Downloaded on - 24/12/2022 09:18:37 :::CIS 26 that aforesaid right of availing benefit of approved military service towards fixation of pay was very much in the rule book, which otherwise never came to be tinkered/quashed and set aside by Division Bench of this court while delivering judgment in V.K. Behal supra.
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25. Consequently, in view of detailed discussion made herein above, we find merit in the writ petitions and accordingly the same are allowed and the respondents are directed to give benefit of approved military service to the ex-servicemen towards fixation of pay, from the time, they joined the civil employment, ignoring amendment carried out in provision of rule 5(1) of the rules, 1972 which otherwise can be said to have come into operation from the date of Notification dated 29.1.2018.
26. In view of above, Letters Patent Appeals Nos. 70 of 2020, 16 of 2021 and 34 of 2021 are dismissed. Judgments passed by learned Single Judge laid challenge to in the aforesaid appeals are upheld. CWPOA's Nos. 5641 and 5644 of 2020, CWP No. 6443 of 2021 and CWP's Nos.
412, 455 of 2022 and 6358 of 2021 are accordingly allowed in the afore terms.
Pending applications, if any, in all the appeals and petitions stand disposed of.
(Mohammad Rafiq) Chief Justice (Sandeep Sharma) Judge May 9, 2022 (Vikrant) ::: Downloaded on - 24/12/2022 09:18:37 :::CIS