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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 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 .

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-

"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 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 .

23. 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