ex service man case judgement by Hon’ble  Supreme Court

ex service man case judgement by Hon'ble  Supreme Court

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 011060 OF 2017
(ARISING OUT OF SLP (C) NO. 8710 OF 2009)
R. K. BARWAL AND OTHERS …..APPELLANT(S)
VERSUS
THE STATE OF HIMACHAL PRADESH
AND OTHERS
…..RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 011061 OF 2017
(ARISING OUT OF SLP (C) NO. 14361 OF 2009)
CIVIL APPEAL NO. 011062 OF 2017
(ARISING OUT OF SLP (C) NO. 19750 OF 2011)
SPECIAL LEAVE PETITION (C) No.22416 OF 2017
(ARISING OUT OF SLP(C)…….D. NO. 20104 of 2017)
A N D
CIVIL APPEAL NO. 657 OF 2016
J U D G M E N T
A.K. SIKRI, J.
Leave granted in Special Leave Petition (Civil) Nos. 8710 of 2009,
14361 of 2009 and 19750 of 2011.
2) In all these appeals, issue relates to the validity of ‘Demobilized
Armed Forces Personnel (Reservation of Vacancies in the Himachal
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Pradesh State Non-Technical Services) Rules, 1972 (hereinafter
referred to as the ‘1972 Rules’). These 1972 Rules provide for
reservation to the Released Indian Armed Forces Personnel in
non-technical services in the State of Himachal Pradesh. Provision is
also made in the 1972 Rules for conferring the benefit of counting
approved military service of such Released Armed Forces Personnel
for the purpose of fixation of their seniority and pay in civil
employment. It is the validity of these Rules which is the subject
matter in most of these appeals. However, for the sake of
convenience and better understanding, we would take note of the
events from Civil Appeal No.____ of 2017 @ SLP (C) No. 8710 of
2009.
3) The appellants in these appeals are Released Armed Forces
Personnel. They were initially taken in the Army where they served
for few years and after serving for certain years, they were released
from the Army. Still young and far away from the age of retirement
that is prescribed for civilian post, they applied for the post of
Assistant District Attorney in the State of Himachal Pradesh
(hereinafter referred to as the ‘State’) and were successful in getting
appointment as Assistant District Attorneys with the Department of
Prosecution of the State. In terms of 1972 Rules, they were accorded
the benefit of their approved military service for the purposes of
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fixation of their pay and seniority as Assistant District Attorneys.
Details of appointments of these appellants are as under:
Appellant’s
Name
Date of
Joining
Armed
Forces and
rank
Date of
release
from Armed
forces and
rank
Date of
joining civil
employment
(prosecution
department)
Date of
acquiring
essential
qualification
Deemed date of
appointment
R.K. Barwal
(Appellant
No. 1)
24.04.1981
(As Airman)
10.09.1997
(As
Sergeant)
28.12.2001
(Appointed
as ADA/APP)
1991 (LLB) + 2
years
experience
20.03.1989
(By giving 12
years antedated
seniority)
D.S. Parmar
(Appellant
No. 2)
21.06.1986
(As Havaldar
Clerk)
21.07.2001
(As
Naib-Subed
ar)
19.10.2006
(Appointed
as ADA/APP)
1991 (LLB) + 2
years
experience
09.09.1991 (By
giving 15 years
antedated
seniority)
S.S.
Pathania
(Appellant
No. 3)
16.01.1980
(As Seaman)
28.02.1999
(As Master
At Arms)
18.11.2003
(Appointed
as ADA/APP)
1997 (LLB) + 2
years
experience
29.08.1986
(By giving 17
years seniority)
N.S. Verma
(Appellant
No. 4)
08.01.1974
(As Seaman)
31.01.1989
(As Petty
Officer)
20.09.1996
(Appointed
as ADA/APP)
1984 (LLB) + 2
years
experience
20.03.1989
(By giving 12
years seniority)
As is clear from the aforesaid chart, though these appellants joined
as Assistant District Attorneys with the State on later dates, they were
given the seniority from the back/earlier date with the application of 1972
Rules by counting their approved military service. Their pay was also
fixed accordingly.
4) At this stage, we may reproduce the relevant provisions of 1972
Rules. Primarily, we are concerned with Rules 3(1) and 5 (1). The
Preamble as well as the aforesaid Rules of the 1972 Rules read as
under:
“Preamble
No. 11-76/71-GA-A—In exercise of the powers conferred by
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the proviso to Article 309 of the Constitution of India, and all
other powers enabling him in this behalf, the Governor,
Himachal Pradesh, hereby makes the following Rules
regulating the reservation of vacancies in Himachal State,
Non-Technical Services, for the Demobilised Emergency
Commission Officers, Short Service Regular Commission
Officers, Junior Commissioned Officers, Non-Commissioned
Officers and other Ranks of the Armed Forces of the Indian
Union (hereinafter called the Released Indian Armed Forces
Personnel), and the recruitment of such officers/personnel on
such vacancies, namely:
3. Reservation of vacancies:
(1)Fifteen percent 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 and are released any time
thereafter….”
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).”
5) It may also be mentioned here that the State Government has framed
similar Rules conferring this kind of benefit on the Released Armed
Forces Personnel in Administrative Services as well. These Rules
were framed in the year 1974 and are called the ‘Demobilised Armed
Forces Personnel (Reservation of Vacancies in the Himachal
Pradesh Administrative Services) Rules, 1974 (hereinafter referred to
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as the ‘1974 Rules’). Though, the 1974 Rules are not the subject
matter of these appeals, purpose for referring to these Rules is that
the validity of these Rules was also challenged and the matter had
come up to this Court. To that extent, reference to these Rules
becomes relevant and the outcome of the proceedings would be
mentioned at the appropriate stage.
6) When the seniority of the appellants was fixed in the aforesaid
manner as given in the table above, the result was that they were
given seniority over and above some of those appointees who came
in the general category and even when they were appointed as
Assistant District Attorneys, prior in point of time. These persons,
naturally, felt aggrieved by this favourable treatment accorded to the
appellants, Respondent Nos. 3 to 5 herein as well as two other
Assistant District Attorneys, thus, approached the State
Administrative Tribunal by filing Original Application (OA), inter alia,
challenging the vires of Rule 5(1) of 1972 Rules insofar as it
conferred benefit of counting of approved military service upon the
appellants towards fixation of their seniority. They prayed for striking
down Rule 5(1) to the extent it confers seniority upon such Released
Armed Forces Personnel with a specific prayer that deemed dates of
appointment assigned to the appellants be declared as illegal. They
also prayed for issuance of directions to the effect that these
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appellants be given seniority from the actual date of appointment as
Assistant District Attorneys or alternatively from the dates they
acquired eligibility for the post, viz., degree of Ll.B. Here, we may
mention that these appellants had obtained LL.B. degree later on, but
they were law graduates as on the date when they applied for the
post of District Attorney and were eligible to be considered for the
said post. However, the grievance of Respondent Nos. 3-5 was that
seniority is given to them, by counting military service, from the dates
when they were not law graduates and thus not even eligible for the
post, for want of requisite qualifications, on that date.
7) The State Administrative Tribunal, after hearing the parties, dismissed
the OA filed by the Respondent Nos. 3-5 vide judgement dated
January 12, 2001, thereby upholding the validity of Rule 5(1) of 1972
Rules.
8) These respondents challenged the decision of the State
Administrative Tribunal by filing writ petitions in the High Court. The
High Court has, vide impugned judgment, partially struck down Rule
5(1) of the 1972 Rules. Relying upon the decision of this Court in
Ram Janam Singh vs. State of Uttar Pradesh and another1, the
High Court has held that such a benefit of counting past service
rendered in the armed forces would be admissible only to those
personnel who had joined the forces during the period of Emergency
1 (1994) 2 SCC 622
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and would be inadmissible in case of ex-servicemen who had joined
the armed forces at the time of peace.
9) The result of the aforesaid judgment of the High Court is that the
appellants stand deprived of the period of service rendered by them
in armed forces for the purposes of seniority as they had not joined
the said service during the period of emergency. Since, the High
Court has rested its decision by relying upon Ram Janam Singh1
case and few other cases to the same effect, before proceeding
further we would like to discuss these judgments and law laid down
therein.
10) Ram Janam Singh1 was a case wherein the judgment of the
Allahabad High Court was called into question. It pertained to U.P.
Non-Technical (Class-II) Services (Reservation of Vacancies for
Demobilised Officers) Rules, 1973. Under these Rules, benefit was
confined to those ex-servicemen who had joined service in the armed
forces during the period when the country was under the state of
emergency. One person who had joined service in the armed forces
during the period when the Emergency was not in operation
challenged the non-grant of the benefit of Rules to him on the ground
that there was no reasonable or rational basis for excluding the
period from January 10, 1969 when the Emergency was lifted till
December 03, 1971 when the same was re-imposed. The writ
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petition was allowed by the Allahabad High Court. Thereafter, Ram
Janam Singh filed an appeal before the Apex Court which was
allowed. The Apex Court held as follows:-
“10. From time to time controversy regarding inter se seniority
is raised between persons recruited from, different sources to
the same service. In past, notional seniority used to be given
to one group of officers, purporting to mitigate their hardship
or to rectify any alleged wrong done to them in the process of
recruitment or promotion. Ultimately, it was realised that if
liberty is given to fix seniority of an officer or group of officers
belonging to a particular category with reference to a notional
date, that will lead to great uncertainty in public service. The
date of entry into a particular service was considered to be
the most safe rule to follow while determining the inter se (sic)
one officer or the other or between one group of officers and
the other recruited from the different sources. After referring
to different judgments of this Court, a Constitution Bench in
the case of Direct Recruitment Class II Engineering
Officer’s Association v. State of Maharashtra [(1980) 2
SCC 715]: (AIR 1990 SC 1607), came to the same
conclusion. The same has been reiterated in the case of
State of West Bengal v. Aghore Nath Dev [(1993) 3 SCC
371]. It is now almost settled that seniority of an officer in
service is determined with reference to the date of his entry in
the service, which will be consistent with the requirement of
Articles 14 and 16 of the Constitution. Of course, if the
circumstances so require a group of persons can be treated a
class separate from the rest, for any preferential or beneficial
treatment while fixing their seniority. But, whether such,
group of persons belong to a special class for any special
treatment, in matters of seniority has to be decided on
objective consideration and on taking into account relevant
factors which can stand the test of Articles 14 and 16 of the
Constitution. Normally, such classification should be by
statutory rule or rules framed under Article 209 of the
Constitution. The far-reaching implication of such Rules need
not be impressed, because they purport to affect the seniority
of persons, who are already in service. For promotional
posts, generally the rule regarding merit and ability or
seniority-cum-merit is flawed in most of the services. As such
the seniority of an employee in the later case is material and
relevant to further his career, which can be affected by
factors, which can be held to be reasonable and rational.
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11. It appears that the framers of the Rules 1973 and 1980,
while treating the persons, who had been commissioned on or
after November 1, 1962 but before January 10, 1968 and
again on or after December 03, 1971, took into account the
circumstances and the background in which such persons
were commissioned in Armed Forces, i.e., when the nation
was faced with foreign aggressions and the cry of the time
was that persons should join Armed Forces to defend the
integrity and sovereignty of the nation. It is well-known that
many persons in such situation are not inclined to join Armed
Forces and only those with feeling for the honour of the nation
rise to such occasions. In this background, if such persons
have been treated as a separate class for extending any
benefit in the matter of seniority, none can make any
grievance and their classification can be upheld even in the
light of Articles 14 and 16 of the Constitution.
12. But, we fail to understand as to how persons, who joined
after the emergency was over, i.e., after January 10, 1968
and before December 03, 1971, when another emergency
was imposed in view of the foreign aggression can be treated
at par or on the same level. It needs to be pointed out that
such persons were in look out of a career and joined the
Armed Forces of their own volition. It can be presumed that
they were prepared for the normal risk in the service of the
Armed Forces. Those who joined Armed Forces after
November 1, 1962 or December 3, 1971, not only joined
Armed forces but joined a war which was being fought by the
nation. If the benefits extended to such persons, who were
commissioned during national emergencies are extended
even to the members of the Armed Forces who joined during
normal times, members of the Civil services can make
legitimate grievance that their seniority is being affected by
persons recruited to the service after they had entered in the
said service without there being any rational basis for the
same.
13. xxx xxx xxx
14. Can it be said that the persons who had joined army after
the declaration of emergency due to foreign aggression and those
who joined after the war came to an end stand on the same
footing? Those who joined Army after revocation of emergency
joined army as a career. It is well known that many persons, who
joined army service during the foreign aggression could have opted
for other career or service. But the nation itself being under peril,
impelled by the spirit to serve the nation, they opted for joining
Army where then risk was writ large. No one can dispute that such
persons formed a class by themselves and by Rules aforesaid an
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attempt has been made to compensate those who returned from
war if they compete in different service. According to us, the plea
that even persons, who joined army service after cessaion of
foreign aggression and revocation of emergency, have to be
treated like persons, who have joined army service during
emergency, due to foreign aggression is a futile plea and should
not have been accepted by the High Court. It need not be
impressed that whenever any particular period spent in any other
service by a person is added to the service to which such person
joins later, it is bound to affect the seniority of person who have
already entered in the service. As such any period of earlier
service should be taken into account for determination of seniority
in the later service only for some very compelling reasons, which
stand the test of reasonableness and on examination can be held
to be free from arbitrariness.”
(Emphasis supplied)
11) This dictum was reiterated in Chittranjan Singh Chima and
Another v. State of Punjab and Others2 wherein this Court has held
that the person appointed to defence services under the normal
recruitment, before the proclamation of (External Emergency on
26.10.1962, were not covered under the expression “military service”
as defined in the Punjab Government National Emergency
(Concession) Rules, 1965. Hence, the appellants who were enrolled
in Indian Air Force on December 07, 1957 and September 03, 1959
respectively and were released in 1974 on completion of 15 years of
service, held not entitled to the benefit of this service for seniority and
other consequential benefits because they were not appointed during
emergency but in the regular process.
12) Another case taken note of by the High Court is Narendra Nath
Pandey and Other vs. State of U.P. and others3. In this case, Rule
2 (1997) 11 SCC 447
3 AIR (1988) SC 1648
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6 of the aforesaid U.P. Rules of 1973 was being dealt with, the
relevant portion whereof is as under:
“R. 6 Seniority and pay—
(1)Seniority and pay of candidates appointed against the
vacancies reserved under sub-rule (1) of Rule 3, shall be
determined on the assumption that they entered the
service concerned at their second opportunity, of
competing for recruitment, and they shall be assigned the
same year of allotment as successful candidates of the
relevant competitive examination.”
The issue before the Court was as to whether such ex-service
personnel could be given the seniority even when they failed in first
attempt in securing civil employment and further whether the benefit of
service rendered in armed forces could be given even if there was a
significant time lag between release of such personnel by the army and
securing the civil employment. Interpreting the aforesaid Rule, these
questions were answered in the following manner:
“13. It is true that Rule 6 does not provide for the period
between the demobilisation and recruitment of a war service
candidate in the civil service. Nor does it forbid consideration
of such period. It cannot, however, be denied that after the
discharge from war service, there will be some lapse of time
for the recruitment of a candidate in the Provincial Civil
Service. There is a question of competing in the examination.
Rule 6 does not provide for any gap to be taken into
consideration, yet it is apparent that some reasonable period
has to be allowed to a candidate so as to enable him to avail
himself of the opportunity of appearing at the competitive
examination for his recruitment in the Provincial Civil Service.
It cannot be gain said that to compete in the examination, a
candidate has to make preparation for that competitive
examinations are generally difficult and, in our opinion, at
least two years’ time should be allowed to a candidate, after
his discharge, for his preparation for the competitive
examination and that will arise in the next year, that is, in the
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third year of his discharge from the armed forces. In other
words, he should be allowed three years for competing in the
relevant examination for recruitment in the civil service.
14. Even after he becomes successful, he is not
recruited immediately. There is question of availability of
vacancies and posting. It is common knowledge that some
time is taken for posting. On a proper construction of Rule 6,
the period spent by a candidate for competition in the
examination which, in our opinion, will not be more than three
years, and the period of time taken for his recruitment or
posting will also be taken into consideration for the purpose of
computing the seniority of a war service candidate. Thus, if a
candidate is discharged in the year 1968, he should be given
three years’ time to avail himself of the opportunity of
competing in the examination. Suppose, he is successful in
the examination in 1971 and posted in 1973. In view of Rule
6, he would be deemed to have entered service at the second
opportunity of competing for recruitment and the entire period
from the date of assumed entry in the service up to his
recruitment in 1973 shall be taken into account for the
purpose of computing seniority and pay. If, however, a
candidate does not avail himself of the opportunity within
three years of his discharge from war service or takes the
examination but not avail himself of the opportunity within
three years of his discharge from war service or takes the
examination but becomes unsuccessful, the period between
his discharge and subsequent recruitment will not be taken
into account for the purpose of computing the seniority. Rule
6 should be given a reasonable interpretation. We do not find
any reason to interpret Rule 6 in a way which will be doing
injustice to the appellants who have been recruited under the
Service Rules after competing successfully in the
examination.
15. We agree with the High Court that the 1973 Rules as also
the 1980 Rules are quite legal and valid. We are, however, of
the view that under Rule 6 of the 1973 Rules or Rule 5 of the
1980 Rules only a reasonable period, namely, the period of
three years, required for taking the examination and the time
taken for recruitment or posting, as discussed above, along
with the period of war service, but no other period, will be
taken into consideration for the purpose of computing the
seniority and pay. The impugned seniority list prepared in
1976 and also that prepared subsequently in the year 1980
cannot be sustained, as they have been prepared by taking
into consideration the entire period between the discharge
and the recruitment without any reservation for computing the
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seniority.
(Emphasis Supplied)”
13) Dicta laid down in the aforesaid judgments of this Court are
apparent and explicit. The Court has held that there exists an
intelligible criterion for providing quota to ex-servicemen. The object
is to rehabilitate the ex-servicemen which can be achieved by
providing reservations to them. Therefore, insofar as provision made
in the Rules reserving a particular quota, within reasonable limits is
concerned that is permitted and does not offend the provisions of
Article 14 of the Constitution. There is an intelligible differentia having
nexus with the objective sought to be achieved. Likewise, provision
in the Rules for protecting the pay is also held to be permissible.
14) The bone of contention, however, is in respect of grant of benefit of
seniority to these ex-servicemen on joining civilian service, by
counting the service rendered in the armed forces for the purpose of
seniority in the department which these ex-servicemen join. Here
there is a conflict of interest that arises between those civilians who
join a particular service earlier than ex-servicemen but are rendered
juniors to the ex-servicemen joining later for the reason that
ex-servicemen are benefited with their past service in the armed
forces. As far as this aspect is concerned, the judgments noted
above have held that provision in the Rules giving benefit of service
in armed forces to those ex-servicemen who joined during
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Emergency, are perfectly justified. It is based on the rationale that
sacrifice of such personnel in armed forces who joined the service in
war times is much more than those persons who joined the armed
forces during peace period. Reasoning proceeds on the basis that
when a state of Emergency is declared and the nation is at war or
facing the threat of aggression some young persons out of a feeling
of patriotism join the armed forces knowing fully well that they are
putting their lives at stake. They give up their chance to join civil
service and live a comfortable life in the main cities of the country.
Drawing this distinction, this Court has granted the benefit of service
rendered by these ex-servicemen while in armed forces, is held to be
valid when they were recruited during Emergency. However, the
Court has held that such a benefit should not be available to those
who join the armed forces at a period when the country was not in
conflict with any other country/enemy country. The denial of benefit
to such persons is on the premise that these persons stand on a
totally different footing from those who join service during emergency
period. These persons weigh all the pros and cons and after taking
into consideration all factors come to the conclusion that they have a
good future in the armed forces. They join the armed forces as a
profession like any other.
15) On this premise, the Court has held that the two categories of
15
ex-servicemen formed two separate classes and are not equal to
each other. Thus, latter category is not entitled to counting of their
service rendered in armed forces for the purpose of their seniority on
joining the civilian post. Following this dicta laid down in the
aforesaid judgments, the High Court has read down the rule
in-question by limiting the benefit of seniority only to that class of
ex-servicemen which joined armed forces during the period of
Emergency.
16) This position is summed up by the High Court in the following
manner:
“We are of the view that such benefit should have been
limited to those persons who joined during the period of
emergency only. Otherwise the Rules would become
unconstitutional. The Apex Court in a number of cases
including those quoted above has clearly held that efficiency
should not suffer on account of reservation. Reservation can
be held to be reasonable as long as efficiency does not suffer.
It is also well settled that the seniority of an officer in service
is determined with reference to the date of entry in the
service. This is consistent with Articles 14 & 16 of the
Constitution. Exceptions can be made only in special
circumstances. However, who are entitled to such benefits
has to be decided objectively. Therefore, the rules in this
behalf must be framed by taking into consideration the effect
which such reservation will have on efficiency of the service
and the manner in which it will affect the seniority of persons
who are already in service.
We may approach this issue from another angle. The Apex
Court both in Ram Janam Singh’s case as well as in
Chittranjan Singh Chima’s case clearly held that the
ex-serviceman who joined the armed forces during normalcy
could not be equated with ex-servicemen who joined the
armed forces during emergency. The Rule under challenge in
fact equates these two. Therefore, two unequals have been
treated as equals. What may be valid or reasonable for the
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ex-servicemen who stand on higher pedestal, i.e.,
ex-servicemen who joined during emergency may not be
necessarily be valid or legal for those who stand on a lower
footing. The civil servants who are placed lower to such
ex-servicemen can genuinely complaint that they are the
victims of arbitrary discrimination as clearly pointed out in
Ram Janam Singh’s case. Efficiency of the service is also
bound to suffer if all ex-servicemen are given this benefit.”
17) It becomes apparent from the aforesaid discussion that while
deciding against the appellants, the High Court has followed the
judgments of this Court and the ratio has also been applied correctly.
Therefore, the judgment of the High Court cannot be faulted with.
Though, Mr. Paramjeet Singh Patwalia, learned senior counsel for the
appellant had tried to distinguish the decision of this Court in Ram
Janam Singh and Chittranjan Singh Chima cases, with the
submission that the Rules in those two cases were different, however,
it is difficult to accept this contention of the appellant having regard to
the clear dicta and the ratio behind the said judgments which has
already been discussed above.
18) Faced with this, another fervent plea made by the learned senior
counsel is to the effect that going by the prevailing conditions in the
country and the manner in which armed forces personnel have to
perform their duties, there is hardly any difference between the
emergency and the peace time. It was submitted that post 1971 war,
Pakistan has waged proxy war against India which continues
unabated. Life risk and casualties of soldiers during peace time are
17
more as compared to the casualties in the war. Insurgency like
conditions existed earlier in Punjab and now continues in Kashmir
Valley besides in North Eastern States. Almost every day there are
casualties of the personnel deployed in such affected areas. Besides
fighting insurgency conditions and terrorism, soldiers have to
participate in various operations like Operation Vijay (Kargil
Operation), Megadoot, Pawan, Prakaram, Rakshak, Bombay
Operation etc. which take place during non-emergency period and
risk to life and fatalities of soldiers during such operations is also as
high as during the wars.
19) In a nutshell, the submission is that the distinction which was
drawn by this Court between those persons who joined armed forces
in peace time and those who joined during emergency is totally
blurred. Emphasis of Mr. Patwalia was that even during the so-called
peace time, armed forces are faced with warlike situations and,
therefore, they should now be treated at par with those
ex-servicemen who joined the military service during the period of
emergency. On that basis, it was submitted that the cases decided
by this Court and referred to above need reconsideration.
20) Insofar as official respondents, State of Himachal Pradesh and
Secretary Personnel to the Government of Himachal Pradesh
(Respondent Nos. 1 and 2) are concerned, they have supported the
18
arguments of the appellants. In fact, even State has challenged the
impugned judgment and its appeal is numbered as Civil Appeal No.
________ of 2017 (@ SLP(Civil) No. 14361 of 2009). These appeals
were primarily contested by the private respondents who are civilians
and were appointed to these posts on various dates and had filed the
writ petition in the High Court which has been allowed by the High
Court. In addition, an intervention application is filed by some other
persons belonging to this very class and they have also supported
the impugned judgment.
21) Insofar as private respondents, namely, Respondent nos. 4 and 5
as well as interveners are concerned, submission of the learned
counsel appearing on their behalf was that the judgment of the High
Court was in accord with the law laid down by this Court and,
therefore, there was no reason to interfere with the same. It was
submitted that the background in which 1972 Rules were framed had
to be kept in mind. In this behalf, their submission was that China had
attacked the Nation on October 20, 1962 and proclamation of
Emergency was made on October 26, 1962. It was found that there
was acute shortage of young personnel in the Armed Forces who
could defend the country and accordingly a number of concessions
were announced by the Central and the State Governments for those
persons who joined these forces including reservation of posts,
19
counting of the period served in the military for seniority and
protection of pay and pension in the civil posts.
22) He further stated that after Indo-China and Indo-Pak wars, a
review of the manpower required by the armed forces was made in
the year 1968 and all those persons who were in excess were
“Demobilised” in a phased manner. To rehabilitate the demobilised
person Central and the State Governments had framed Rules.
Demobilisation was onetime operation and demobilisation was
stopped by 1975. It was pointed out that the first such Rules were
framed by Punjab as Punjab National Emergency Concession Rules,
1965 and notified on July 20, 1965 as has been mentioned in
Ex-Capt. K.C. Arora and Another Vs. State of Haryana and
Others4.
23) These respondents, thus, supported the rationale by drawing
distinction between the two classes of ex-servicemen, namely, those
who had joined armed forces during Emergency and those who had
not and it is only the first category which could be entitled to the
benefit of past service. It was also submitted that if such a benefit of
past service is given, many such ex-servicemen would become
entitled to seniority from a date when they were not even possessing
a degree in law or having any experience or practice as a lawyer
which is required for the post. It was also submitted that some of
4 (1984) 3 SCC 281
20
these ex-servicemen would be getting seniority from the dates on
which they were not even enrolled as advocates with the Bar Council
and had not completed experience of three years’ practice as
advocates which could not be countenanced. It was, thus, submitted
that if the benefit under the 1972 Rules is extended to all
ex-servicemen, it would, undoubtedly, affect the efficiency of service.
Furthermore, the same would also cause heart burn and affect the
morale of the competent persons who joined the services much
earlier and are still placed much lower in seniority to the
ex-servicemen, who invariably get seniority, from the date when they
did not even possess the bare minimum eligibility for appointment. It
was submitted that Rule for reservation of vacancies may not be
stretched so far as to include seniority, pay-scale (Rule 5.1) and
provision of vacancies to the dependents and continued reservation
of vacancies (Rule 3.1) of the Demobilised Rules. Will these Rules
made under Article 309 of the Constitution stand the test of Article 16
of the Constitution to which Article 309 is subject to?
24) It was pointed out that a number of ex-servicemen had superseded
these respondents and interveners which had a cascading effect on
the service career of the direct recruits. It was specifically pointed out
that Sh. Purander Sharma was the topper of the batch and was
appointed as Assistant District Attorney on July 20, 1990 along with
21
the other direct recruits, intervener No. 2 Sh. Ravi Kant Kaushal
while, the ex-servicemen, Sh. Dharam Pal Sharda, Sh. Sansar
Chand, Sh. Narain Singh Verma, Sh. Gian Chand Rana and Sh. R.K.
Barwal were appointed on much later dates. However, these
ex-servicemen were given the benefit of Rule 5(1) of the 1972 Rules
and were assigned a deemed date of appointment on a much earlier
date. Consequently, Sh. Purander Sharma (Respondent No. 5) and
other similar situate persons, were placed much lower in the seniority
to these ex-servicemen, who got seniority from the date when they
did not even possess the bare minimum eligibility for appointment. It
was emphasized that Sh. Purander Sharma got promoted to the post
of Deputy District Attorney in the year 2005 after serving as Assistant
District Attorney for a period of more than 15 years against minimum
requirement of seven years, while, Sh. R.P. Sharma, Sh. Dharam Pal
Sharda, Sh. Sansar Chand, Sh. Narain Singh Verma, Sh. Gian
Chand Rana and Sh. R.K. Barwal (Ex-servicemen) were promoted
thrice within a period of 15 years from the date of their actual
appointments, i.e., on July 10, 1998, June 01, 1994, June 14, 1993,
September 20, 1996, May 26, 1999 and December 28, 2001
respectively.
25) On that basis, it was argued that there was no reason to take a
different view or refer the matter to a larger Bench for consideration.
22
26) After giving our due consideration to the respective submissions
and minutely going through the judgments of this Court discussed
above, which have been relied upon by the High Court, we do not see
any reason to deviate therefrom nor do we find any justification in
referring the issue to the larger Bench.
27) No doubt, Mr. Patwalia is right in pointing out that those who are
joining military service even in ‘peace times’ are faced with difficult
situations of proxy war and have also to deal with insurgency and
terrorism. It is also a matter of common knowledge that these military
personnel are risking their life while dealing with the aforesaid difficult
situations and, in fact, the casualties and fatalities of the soldiers are
on the rise. When they leave the military service, as an
ex-serviceman, they not only get the benefit of appointment to the
civilian post against the quota earmarked for them, they are also
getting the benefit of counting of military service when their pay is
fixed on their appointment to the civilian post. However, benefit of
counting of military service rendered by these ex-servicemen for the
purpose of seniority cannot be extended to them. Such a benefit is
restricted by this Court only to those who joined armed forces during
emergency due to foreign aggression. This special category was
carved in the judgments referred to above. This Court, while doing
so, categorically and repeatedly held that the call of service to nation
23
during war period is on a totally different footing than joining army
when the country is not facing any such foreign aggression. The
Court pointed out that persons who were commissioned in armed
forces when the nation was faced with foreign aggression and the cry
of the time was that persons should join armed forces to defend the
integrity and sovereignty of the nation, it was stressed that many
persons in such situations are not inclined to join the armed forces
and only those with the feeling for the honour of the nation rise to
such occasions. For this reason, such persons joining armed forces
at that time, sacrificing their career, had to be treated as a separate
class by extending them the benefit in the matter of seniority as well.
However, those who joined the armed forces otherwise, they do so in
look out of a career and joined such services of their own volition.
They are prepared for the normal risk in service of the armed forces.
Therefore, benefit of service rendered in armed forces cannot be
extended to such a class for the purposes of seniority. The
circumstances pointed out by Mr. Patwalia are nothing but those risks
which are very well known and prevalent. Fact remains that these
persons joined the service to make their career and on their own
volition, exercising it as a matter of choice. Their cases are,
therefore, on a different footing altogether. After all, if the benefit of
armed force services rendered is extended to each and every
24
ex-serviceman for the purpose of seniority, it may result in far
reaching implications. Examples in this behalf are given by the
private respondents, as noted above. This Court cannot shy away
from the normal rule of fixing the seniority, as enunciated in the cases
of Direct Recruitment Class II Engineering Officer’s Association
as well as Aghore Nath Dev, i.e. the seniority of an officer in service
is determined with reference to the date of his entry in the service,
which is consistent with the requirement of Articles 14 and 16 of the
Constitution. There have to be very weighty reasons for departure
from this rule. Otherwise, it may disturb the equilibrium by making
many direct recruits junior to such ex-servicemen even when such
direct recruits joined the services in civil posts much earlier than the
ex-servicemen. Thus, an exceptional category carved out for giving
such a benefit only to those who were commissioned in armed forces
during war time cannot be extended to each and every
ex-serviceman merely because he has served in armed forces.
28) We, therefore, are of the considered opinion that there is no
reason to deviate from the principle laid down by this Court in Ram
Janam Singh and Chittranjan Singh Chima. This contention of the
appellant is, thus, rejected.
29) Mr. Patwalia also submitted that this Court in its decision in the
case of State of H.P. vs. P.D. Attri5 has also held that each State
5 (1999) 3 SCC 217
25
has its own individualistic way of governance under the Constitution.
One State is not bound to follow the Rules and Regulations
applicable to the employees of other State and it is not bound to
follow every change brought in the Rules and Regulations in other
State even if the same were adopted initially. In this hue, it was
submitted that presently the percentage of reservation of
ex-servicemen under the Rules of 1972 is to the extent of 15% in
respect of all posts viz. class I, II, III and IV (Rule 3(1) of 1972 Rules).
The 1972 Rules apply to each and every department of State
Government except the administrative services, judiciary and
technical services for which there are separate rules. There are
approximately more than 2 lac employees in the State of H.P. who
are governed by the 1972 Rules. Thus, approximately there would
be 30,000 to 35,000 ex-servicemen who have been conferred the
benefit of seniority under the Rules of 1972.
This contention, however, needs to be rejected in view of the
detailed discussion carried out hereinabove.
30) In the impugned judgement, the High Court has pointed out one
more pertinent aspect. It is mentioned that the benefit of past service
rendered in armed forces is even given to those persons who did not
even fulfil the minimum educational criteria for the service which is
otherwise mandatory. Discussion in this behalf is as follows:
26
“In our considered opinion, the State Government did not at
all take into consideration these aspects of the matter. No
material has been placed on record to show whether such
objective criteria were followed while framing the Rules. We
also find that in the State of Himachal Pradesh benefit of past
service rendered in the armed forces is even given to those
persons who did not even fulfil the minimum educational
criteria for the service which is otherwise mandatory. Take for
example the present case. According to the R&P Rules
relating to District Attorneys, the minimum eligibility criteria is
a degree in law with three years experience as a lawyer.
Ex-servicemen who were not even possessing a degree in
law nor having any experience of practice are being given the
benefit of the past service rendered in the Army. Immediately
on joining the service they become senior to persons who
have come from the general category and joined service
much earlier to them. This is bound to affect the efficiency in
the service. This will also cause heart burning. Competent
persons who joined from the general category are placed
lower in seniority to those who may have become eligible to
even join service much after they joined.
xxx xxx xxx
A person who does not have the minimum educational
qualification would not be even eligible to apply for the post.
When the person is not even eligible to apply for the post it
does not stand to reason that he can be given benefit of
service rendered in the Army in such a post. The purpose of
the Rules is to rehabilitate the army man. The rehabilitation is
done by providing them reservation but when it comes to
giving them the benefit of seniority the Rule becomes
unconstitutional if the candidate being given the benefit is
ineligible to hold the post. Even the State is not clear as to
from which date this benefit is to be given. In some cases like
in the case of respondent No. 4 and Sh. G.C. Rana the
benefit of past service has been given only from the date
these persons acquired the minimum qualifications but in the
cases of some other persons this benefit has been given
regardless of this date. This practice is also discriminatory
and violative of Article 14 of the Constitution of India.”
31) Thus, grant of benefit of military service even in respect of those
who join the armed forces during the emergency, only from the date
when they attained the minimum eligibility criteria prescribed in the
27
Rules for the post to which such persons are appointed.
32) Since we have already held that insofar as these appellants are
concerned, they are not entitled to get the period served in armed
forces counted for the purpose of seniority as Assistant District
Attorney, this question does not arise for consideration in these
cases.
33) As a result, Civil Appeal No. 011060 of 2017 arising out of SLP(C)
8710 of 2009, Civil Appeal No. 011061 of 2017 arising out of SLP(C)
14361 of 2009 and Civil Appeal No. 011062 of 2017 arising out of
SLP(C) 19750 of 2017 are dismissed.
34) Special Leave Petition (Civil) No. 22416 2017 (arising out of
SLP(C) ….D. No. 20104 of 2017) is also filed by ex-servicemen who
have joined Department of Prosecution of the State. They are five in
number. However, they have challenged earlier judgment of the High
Court, pronounced in Civil Writ No. 620 of 2003 on November 16,
2007. We do not see any reason to entertain this Special Leave
Petition as it is filed after a period of 10 years. In any case, the
petitioners herein have raised the same issues which are raised by
the appellants in the aforesaid appeals and those appeals have been
dismissed finding no merit therein. Accordingly, this special leave
petition is also dismissed both on limitation as well as on merits.
Civil Appeal No. 657 of 2016
28
35) Insofar as Civil Appeal No. 657 of 2016 is concerned, it is filed by
State of Himachal Pradesh against the respondent who was an
ex-serviceman appointed as Peon against unreserved post with effect
from January 01, 1975. The issue in that case was different though
he was not given the benefit of Army service towards seniority, it was
primarily for the officer that the respondent was appointed against
unreserved post and on that basis the Government took the view that
he could not be given the benefit available to the ex-servicemen
under the 1972 Rules. Respondent approached the Administrative
Tribunal, Himachal Pradesh and his O.A. was allowed. Against the
judgment of the Tribunal, State filed writ petition which has been
dismissed by the High Court vide judgment dated May 22, 2014
against which the aforesaid appeal is preferred by the State. A
perusal of the judgment of the High Court would reveal that the
administrative instructions issued by the Government that when a
released Army Personnel has been appointed against the general
un-reserved vacancy in the first instance, he should be given an
option at the time of first appointment to accept a reserved vacancy,
even if it occurs subsequent to his appointment. The High Court
noted that such an option was never provided to the respondent. The
vacancy became available after the appointment of respondent as
Peon on January 01, 1975 and since the State Government was
29
required to give option to the respondent at the time of initial
appointment to be considered against the post reserved for
ex-servicemen, which was not done and, therefore, respondent could
not be made to suffer due to reminiscence on the part of the State
Government. In the aforesaid factual background, we do not find any
error in the judgment of the High Court and, therefore, dismiss, this
appeal.
………………………………………J.
(A.K. SIKRI)
………………………………………J.
(ASHOK BHUSHAN)
NEW DELHI;
AUGUST 25, 2017
30
ITEM NO.1501 COURT NO.6 SECTION XIV
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 8710/2009
(Arising out of impugned final judgment and order dated 29-12-2008
in CWP No. 488/2001 passed by the High Court Of Himachal Pradesh At
Shimla)
R.K.BARWAL. & ORS. Petitioner(s)
VERSUS
THE STATE OF HIMACHAL PRADESH & ORS. Respondent(s)
([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])
WITH
C.A. No. 657/2016 (XIV)
SLP(C) No. 14361/2009 (XIV)
SLP(C) No. 19750/2011 (XIV)
SLP(C)… Diary No. 20104/2017.
Date : 25-08-2017 These matters were called on for pronouncement of
judgment today.
CORAM : HON’BLE MR. JUSTICE A.K. SIKRI
HON’BLE MR. JUSTICE ASHOK BHUSHAN
For Petitioner(s) Mr. Paramjeet Singh, Patwalia, Sr. Adv.
Mr. Vikas Mahajan, Adv.
Mr. Vinod Sharma, Adv.
Mr.Vishal Mahajan, Adv.
Mr. S.S. Rai, Adv.
Mr. Varinder Kumar Sharma, AOR
Ms. Pragati Neekhra, AOR
Mr. Bhaskar Y. Kulkarni, AOR
Mr. Rajeev Sharma, AOR
Mr. Naresh K. Sharma, AOR
Mr. Sahil Bhalaik, AOR
For Respondent(s) Mr. Rajeev Kumar Bansal, Adv.
31
Mr. Brahma Prakash, Adv.
Mr. Akshay K. Ghai, Adv.
Mr. Balraj Dewan, AOR
Mr. Naresh K. Sharma, AOR
Mr. Himinder Lal, AOR
Mr. Aditya Dhawan, Adv.
Ms. Kiran Dhawan, Adv.
Hon’ble Mr. Justice A.K. Sikri pronounced the judgment of the
Bench comprising His Lordship and Hon’ble Mr. Justice Ashok
Bhushan.
Leave granted in Special Leave Petition (C) Nos. 8710 of 2009,
14361 of 2009 and 19750 of 2011.
The appeals and Special Leave Petition (Civil) No. ____ 2017
(arising out of SLP(C) ….D. No. 20104 of 2017) are dismissed in
terms of the signed reportable judgment.
Pending application(s), if any, stands disposed of
accordingly.
(Ashwani Thakur) (MADHU NARULA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)

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