EX-service man High Court Himachal Judgement

EX-service man High Court Himachal Judgement

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
C.W.P. No.488 of 2001.
Judgment reserved on: 15.10.2008.
Date of decision: 29.12.2008.
Shri V.K. Behal and others ….Petitioners
-VersusState
of H.P. and others ….Respondents
Coram:
The Hon’ble Mr.Justice Deepak Gupta, Judge.
The Hon’ble Mr.Justice V.K.Ahuja, Judge.
Whether approved for reporting? Yes
For the Petitioners: Mr.Dalip Sharma, Advocate.

For Respondents: Mr.R.M.Bisht, Dy.A.G. for respondents
No.1 & 2.
Mr.Surinder Sharma, counsel for R-3.
Mr.Bhuvnesh Sharma, counsel for R-4.
Mr.Ajay Chandel, counsel for interveners.

Deepak Gupta, J.
This Writ Petition is directed against the order of the learned
H.P. State Administrative Tribunal dated January 12, 2001 passed in
O.A. No.191 of 1999 whereby the Original Application filed by the
petitioners and respondents No.6&7 herein was rejected.
Briefly stated, the facts are that the petitioners and the private
respondents are all working in the Prosecution Department of the
State of Himachal Pradesh. They were selected as Assistant District
Attorneys on different dates. The petitioners, by means of the O.A.
and by means of the present petition have challenged the
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constitutional validity of the Demobilized Armed Forces Personnel
(Reservation of vacancies in the Himachal Pradesh State NonTechnical
Services) Rules, 1972 (hereinafter referred to as the
Rules). Rule 5(i) of the aforesaid Rules as originally notified on
28.3.1972 read as follows:
“Service rendered in the armed forces including the period spent on
training prior to Commission in the case of Commissioned Officers, shall
count, in full, towards seniority and fixation of pay under the State
Government in the post to which he is first appointed against the vacancy
reserved under Rule 3.”
This rule was amended vide notification dated 6.12.1980 to
read as follows:
“Seniority and pay of the candidates who are appointed against the
vacancies reserved under Rule 3 shall be determined on the assumption
that they joined the service or the post, as the case may be, under the
State Govt. at the first opportunity they had after they joined the military
service or training prior to the Commission.”
The aforesaid provision was against amended and now the
provision reads as follows:
“(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.”
The petitioners challenge the validity of this Rule on various
counts.
We have heard Shri Dalip Sharma, learned counsel for the
petitioners, Sh.R.M. Bisht, learned Deputy Advocate General for
respondents 1&2 and S/Sh.Bhuvnesh Sharma, Ajay Chandel and
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Surinder Sharma, counsel for private respondents and the
interveners.
The main contention raised on behalf of the petitioners by
Sh.Dalip Sharma is that the Rules are unconstitutional because they
give benefit to 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 has 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
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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 ex-servicemen 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.
On the other hand, counsel for the respondents and interveners
have supported the validity of the Rules and have contended that not
only is there an intelligible criteria but the classification also has a
reasonable nexus with the object sought to be achieved. The
respondents have also argued that the Apex Court has virtually
upheld the validity of the H.P. Rules though in the context of H.P.
Police Service in S.B. Dogra vs. State of H.P., (1992) 4 SCC 455.
The main plank of argument of the petitioners is that the Apex
Court in Ram Janam Singh vs. State of Uttar Pradesh and
another, AIR 1994 SC 1722 clearly held that the ex-servicemen
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who joined service in the armed forces during the period of
emergency have to be treated at a higher pedestal than those who
joined service during normalcy. The two categories are unequal and
cannot be equated. It would be pertinent to mention that under the
U.P. Non Technical (Class-II) Services (Reservation of Vacancies
for Demobilized Officers) Rules, 1973 the benefit of the Rules was
confined to those ex-servicemen who had joined service in the armed
forces during the period when the Country was under a 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 rational basis for excluding the period
from January 10, 1969 when the emergency was lifted till December
3, 1971 when the same was re-imposed. This writ 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 Recruit Class II Engineering Officers’
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
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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 recruitment 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 309 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
followed 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.
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 3, 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 the 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 3, 1971,
when another emergency was imposed in view of the foreign aggression can be
treated at par or on the same level. It need not 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
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persons recruited to the service after they had entered in the said service
without there being any rational basis for the same.
13. xxxxxxxx
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 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 cessation 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 persons 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)
In Narendra Nath Pandey and others vs. State of U.P. and
others, AIR 1988 SC 1648 the Apex Court was dealing with the
provisions of Rule 6 of the U.P. Rules, the relevant portion of which
reads as follows:
“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.”
Interpreting this Rule, the Apex Court held as follows:
“13. It is true that Rule 6 does not provide for the period between
demobilisation and recruitment of a war service candidate in the civil service.
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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. Immediately after
discharge, one cannot get himself recruited 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 gainsaid 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 be his first
opportunity. The second opportunity will arise in the next year, that is, in the
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
the 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 competing 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 held 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 betaken 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 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
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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
seniority.”

A Division Bench of this Court of which one of us
(V.K.Ahuja, J) was a Member, considered in detail the provisions of
reservation for ex-servicemen in so far as they were applicable to the
H.P. Administrative Service in CWP No.1352 of 2006 titled
Rajinder Singh and others vs. State of H.P. and others & other
connected matters. In that case also Rule 4(i) of the Rules was
challenged on the ground that though there may be reservation for
those persons who joined armed forces during emergency when the
Nation faced aggression by treating them as special class but the said
reservation should not be extended by giving benefit to all those
persons who had joined the armed forces in normal period. The
Division Bench while dealing with this contention discussed the
issue in the following terms:
“A perusal of these Rules shows that the term ‘demobilized’ has
not been defined in any of the rules and it is clear that taking the
definition from the dictionary, it can be interpreted that these
Rules are meant for providing reservation to those armed forces
personnel who had been demobilized from these forces. Nowhere
the word ex serviceman has been used in the preamble or title of
these Rules. The intention of the State Government was to give
benefit to those persons who had been demolished (sic) after the
emergency and not to all ex servicemen. This demobilization may
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be due to the cessation of external aggression and reduction of
strength of armed forces which are raised to meet the challenge
posed by the Indo China war of 1962 and Indo Pak war of 1965.
Xxxxxxxxx
These Rules were exclusively framed for the benefit of those
Indian Armed Forces Personnel who had served in these forces
during the national emergency and not for all ex servicemen
though they were entitled to be selected against the quota
reserved for ex servicemen which was already availed for 1984-
85 batch by Shri B.R. Verma and there could not be reservation
for two posts in that year and, therefore, respondent No.4 was
not entitled to be adjusted for the purpose of seniority or
reservation as an ex serviceman or demobilized person which are
two distinct terms and has to be construed distinctively at
different places.
Xxxxxxxxx
The next limb of the argument of the learned counsel for the
petitioners was that respondent No. 4 had not joined during
emergency and the benefit of service rendered as ex-serviceman
were given to a person who did not join in emergency but joined
in normal time and, therefore, the Rules providing for reservation
or giving of benefit of past military can be said to be ultra vires
provisions of the Constitution and further that the amendment in
rules cannot take the benefits accrued to a person retrospectively
and the seniority cannot be changed after a lapse of considerable
time. Learned counsel for the petitioners had placed reliance on
the following decisions.
In the decision in S.B. Dogra Vs. State of
H.P. and others, (1992) 4 Supreme Court Cases 455,
shows that an Appellant Emergency Commissioned Officer,
joined Delhi, H.P. Anandaman and Nicobar Island Police Service
and after formation of State of Himachal Pradesh was allocated to
State Police Service and appointed against the vacancy reserved
for Demobilized Armed Forces Personnel. It was held that the
Tribunal ought not to have disturbed the seniority after such a
long lapse of time when respondent had not challenged it before
the same was finalized in 1979.
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In Chittranjan Singh Chima & another
Vs. State of Punjab & others, (1997) 11 Supreme Court
Cases 447, the apex Court has held that the persons appointed
to defence services under the normal recruitment, before
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 7.12.1957 and 3.9.1959 respectively and were released
in 1974 on completion of 15 years of service, held, not entitled to
benefit of this service for seniority and other consequential
benefits because they were not appointed during emergency but
in the regular process.
Xxxxxxxxxx
The decision in Ram Janam Singh Vs. State of Utter Pradesh
& others, AIR 1994 S.C. 1722, deals with the question
about which concessions were given to those officers joining
armed forces during emergency and thereafter. However, denial
to those joining after revocation of emergency is not
discriminatory. Separate rules were framed conferring benefit in
the matter of seniority only on those officers joining armed forces
after November 1, 1962 but before January 10, 1968 and those
joining after 3rd December, 1971 were held to be not
discriminatory. Such officers benefited under the Rules constitute
a separate class. It is apparent from Ram Janam’s case supra
that the Supreme Court has clearly held that denial of the
concession to persons who joined armed forces after revocation
of emergency is not discriminatory and the officers benefited
under the Rules framed by the State Government to give benefit
to those who joined during emergency constitute a separate
class and, therefore, as a class they are entitled to the benefit of
the previous services.”
After discussing the matter in great detail, as above, the
Division Bench concluded as follows:
“Rule 4(1) of DIAFP Rules which gives benefit of military service
with retrospective effect are quashed for the reasons given
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above. However, the Government shall be at liberty to frame
fresh rules for making reasonable classification in regard to
the persons appointed during emergency and in normal time.
These shall be applicable for future only.”
It is clear that the Division Bench in relation to the
Demobilized Indian Armed Forces Personnel Rules relating to the
H.A.S. has held that the Rules in so far as they give benefit of
military service with retrospective effect are illegal and that the
Government should frame Rules for making reasonable classification
in respect of the persons appointed during emergency at normal
times in view of the judgments
The Apex Court in a number of cases has upheld the validity
of the Rules whereby benefit of counting the service rendered in the
armed forces for the purposes of calculating seniority in the civil
post is granted. However, the Apex Court in Ram Janam Singh’s
case and Chittranjan Singh Chima’s case has clearly held that
ex-servicemen who joined the armed forces during the period of
emergency form an entirely different class as distinguished from the
ex-servicemen who joined the armed forces when there is no state of
emergency in operation and normalcy is prevailing. The Apex Court
has clearly held that these two categories of ex-servicemen form two
separate classes and are not equal to each other.
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
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country. These persons stand on a totally different footing from
those who join service during normal 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.
This is not to demean or in any manner diminish the value of their
service to their country. The sacrifice of the armed forces personnel
can never be forgotten. They serve society in times of turmoil. They
live separately from their families. They serve at the borders in
hostile climes and when they leave the army it is the Nation’s duty to
ensure that they are rehabilitated in a proper manner.
However, as held by the Apex Court and already indicated
by us above there can be no manner of dispute that ex-servicemen
who joined the armed forces during emergency have to be placed on
a much higher pedestal. Their sacrifice is much more than that of
those persons who have joined the armed forces during normal
service. Therefore, though the grant of benefit of service rendered in
the armed forces to ex-servicemen who join during emergency may
be justified, such benefit may not be totally justified in the case of
those ex-servicemen who joined during normal times.
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
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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.
It would also be pertinent to point out that as per the
information available with us in all other States in the Country the
benefit of Demobilized Armed Forces Personnel Rules or similarly
worded Rules is confined to those persons who joined the armed
forces during the period of emergency. In fact as per the information
supplied at the Bar, in the other States even the benefit of reservation
is only available to those persons who joined the armed forces during
the period of emergency. It is only in the State of Himachal Pradesh
that this benefit has been extended to all ex-servicemen. This Court
can take judicial notice of the fact that a large proportion of the
population of the State of H.P. joins the armed forces. In this State
there is a culture of serving the armed forces. It is probably in this
context that the benefit of reservation was extended to all exservicemen.
However, this appears to have been done in a
mechanical manner. The benefit of counting the period of service
rendered in the armed forces for the purposes of seniority in civil
service has been made available to all ex-servicemen without
looking into all aspects of the matter.
We are of the view that such benefit should have been
limited to those persons who joined during the period of emergency
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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, what are the special circumstances and who are the
persons 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 exserviceman
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 ex-servicemen who stand on higher pedestal i.e.
ex-servicemen who joined during emergency may not 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
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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.
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 being 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.
On behalf of the respondents reliance is placed on two
judgments of the Apex Court in Charan Singh and another vs.
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State of Punjab and others,(1998)9 SCC 283 & Amarjit Singh vs.
State of Punjab and others, (1998)9 SCC 284. It would be
pertinent to mention that in those cases nobody had challenged the
validity of the Rules and only the interpretation of the Rules was in
question. In the present case it is the validity of the Rules which has
been challenged. It would be pertinent to mention that in
Janeshwar Goyal and others vs. Hon’ble High Court of H.P. ad
others, 1995(2) Sim.L.C. 205, a Division Bench of this Court dealt
with a similar situation. No-doubt the Division Bench decided the
case mainly on the ground that the Rules were invalid since the High
Court had not been consulted before making the reservations
applicable to the judicial service. However, certain observations of
the Court are relevant in this regard, which are quoted below:
“16……The petitioners also submit that even otherwise the
impugned orders are arbitrary and violative of Articles
14&16 of the Constitution of India. It is particularly
submitted that the impugned orders have the effect of
making respondent No.3 a Judicial Officer from 1974 when
he was not even qualified to hold the said post. As has
been noticed earlier, the respondent No.3 was only a
matriculate when he joined the Indian Air Force in
November, 1965. He passed his B.A. in 1971 and LL B., in
1976. Rule 4 of 1973 Rules provide that no person shall be
appointed to be a subordinate judge who is not a Law
Graduate or has not possessed of an equivalent
examination. Clearly, therefore, respondent No.3 was not
eligible to be appointed as a Subordinate Judge before
1976. It is, therefore, a case where he has been treated as
having been appointed before he was eligible to be so
appointed. The rule, if any, made in this behalf and having
the aforesaid effect would require consideration in the
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context of Articles 14 & 16 of the Constitution. It has,
however, been held that there has been no such Rule in
existence and hence the consideration of said question
would not arise. Since the impugned orders are supported
de hors the rules, it is necessary to consider whether they
are arbitrary as alleged. Assuming that respondent No.3
being the Ex Armed Personnel would fall in a distinct and
separate category at the time of his entering the service
and hence reservation of post will be constitutionally valid,
the same distinction would disappear after his induction
into the service. Thereafter it will not be possible to grant
the said respondent any such benefit and the said grant
would be prima facie arbitrary. It is well settled that
persons though recruited from various source as members
of the service, are treated as having become part of the
said service after their appointment and thereafter no
distinction between them can be made. In this view of the
matter, respondent No.3 could not be given the said
benefit. The said benefit would be violating Rule 4 of 1973
Rules and cannot be justified in any manner. 1973 Rules
have statutory force and cannot be permitted to be
violated. Then conferring benefits on the respondent No.3
from a date when he was not even eligible for appointment
would, in our opinion, be wholly arbitrary and unjustified.”
In Pritam Chand vs. State of H.P. and others, CWP
No.177 of 2000 decided on 22.7.2008, a Division Bench of this
Court following the aforesaid decision held as follows:
“In the present case also since respondent No.1 had
acquired the minimum qualification of graduation required
for filling up the post of Statistical Assistant in April, 1983,
he could not be granted the benefit of entire approved
military service before April, 1983.”
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
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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
educational 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.
In view of the above discussion we are clearly of the view
that in case Rule 5(i) of the Rules has to be upheld, the entire benefit
of the same should be made available only to those ex-servicemen
who joined the armed forces during the period of emergency. As far
as other ex-servicemen are concerned they may avail the benefit of
reservation and fixation of pay but cannot count the past service
rendered in the armed forces for the purposes of counting their
seniority in the civil service which they have joined under the
reserved category of ex-servicemen. It is also made clear that in all
cases the benefit of past service can only be available from the date
when the ex-servicemen acquired the minimum educational
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qualification. No benefit can be given for the army service rendered
prior to the date of attaining such education qualification.
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 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 can not 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.

( Deepak Gupta ),
Judge

December 29, 2008. ( V.K. Ahuja ),
PV Judge
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