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Judgment
Ajay Mohan Goel, J
As common issues of fact and law are involved in both these petitions, they are being disposed of by a common judgment.
Petitioners in these two petitions are Exservicemen. After being released from the Armed Forces, they joined the civil employment and are presently engaged as Lecturers, Trained Graduate Teachers, Art and Craft Teachers and Language Teachers respectively in the Department of Education. The details of the posts being held by them as well as their initial dates of appointment on contract basis and thereafter regularization are as under:
CWPOA No. 231 of 2019
Sr.No
Name of petitioner
Post
Date of appointment on contract basis
Date of regularizatio
1.
Sh. Amar Nah, S/o Sh. Bidhu Ram
Art & Craft Teacher
28.01.2014
02.06.2017
2.
Sh. Manoj Kumar, S/o Late Sh. Purshottam Singh
Language Teacher
20.09.2013
29.05.2017
3.
Sh. Satish Chand
Language Teacher
15.12.2011
15.05.2017
CWPOA No. 237 of 2019
Sr.No
Name of petitioner
Post
Date of appointment on contract basis
Date of regularization
1.
Sh. Jeet Ram, S/o Sh. Bidhu Ram
TGT (Arts)
20.12.2008
23.06.2015
2.
Sh. Dinesh Kumar, S/o Sh. Dinesh Kumar, S/o
TGT (Arts)
03.09.2014
02.06.2017
3.
Sh. Anil Kumar, S/o Sh. Sunit Chand
TGT (Arts)
22.09.2012
02.06.2017
4.
Sh. Meen Chand, S/o Sh. Chuni Lal
TGT (Arts)
03.03.2014
02.06.2017
5.
Sh. Udai Singh, S/o Sh. Uttam Singh Dhadwal
Lecturer (School Cadre) (English)
21.08.2012
18.05.2017
6.
Sh. Kewal Singh, S/o Sh. Surjan Ram
Lecturer (School Cadre) (Political Science)
03.08.2012
18.05.2017
7.
Sh. Jasbir Singh Katoch, S/o Sh. Randhir Singh Katoch
TGT (Arts)
27.12.2008
23.06.2015
8.
Sh. Parveen Kumar, S/o Sh. Rikhi Ram
TGT (Arts)
18.03.2014
23.06.2015
9.
Sh. Rajesh Guleria, S/o Sh. Kamer Chand Guleria
TGT (Arts)
25.09.2012
01.06.2017
10.
Sh. Baldev Singh, S/o Sh. Ravan
TGT (Arts)
26.12.2008
23.06.2015
11.
Sh. Krishan Dev, S/o Sh. Inder Pal
TGT (Arts)
22.03.2010
22.06.2015
12.
Sh. Manjeet Singh, S/o Sh. Rajmal
TGT (Arts)
22.03.2014
02.06.2017
13.
Sh. Surender Kumar, S/o Sh. Kishore Chand
TGT (Arts)
07.01.2009
22.06.2015
14.
Sh. Karnail Singh, S/o Sh. Nathu Ram
TGT (Arts)
03.01.2009
22.06.2015
15.
Sh. Parveen Singh, S/o Sh. Faquir Singh
TGT (Arts)
15.03.2014
02.06.2017
16.
Sh. Swarn Kumar, S/o Sh. Salig Ram
TGT (Arts)
10.03.2014
21.05.2017
17.
Sh. Satish Kumar, S/o Sh. Nidhi Ram
TGT (Arts)
08.10.2012
02.06.2015
18.
Sh. Ashok Kumar, S/o Late Sh. Gian Chand
TGT (Arts)
24.09.2012
06.06.2017
19.
Sh. Kamlesh Kumar, S/o Sh. Vidya Sagar
TGT (Arts)
10.03.2012
01.06.2017
20.
Sh. Som Dutt, S/o Sh. Dhani Ram
TGT (Arts)
06.03.2009
23.06.2015
21.
Sh. Paramjit Thakur, S/o Sh. Godham Ram
TGT (Arts)
26.09.2012
02.06.2017
22
Sh. Sarwan Kumar, S/o Sh. Moti Ram
TGT (Arts)
20.12.2008
23.06.2015
23.
Sh. Ramesh Kumar, S/o Sh. Dharam Singh
TGT (Arts)
20.12.2008
23.06.2015
24.
Sh. Varjeet Mankotia, S/o Sh. Milap Singh Mankotia
TGT (Arts)
20.12.2008
23.06.2015
25.
Sh. Vikas Sood, S/o Sh. Hem Raj
TGT (Arts)
21.09.2012
02.06.2017
26.
Sh. Ram Pal, S/o Sh. Mansha Ram
TGT (Arts)
20.12.2008
23.06.2015
27.
Sh. Manoj Kumar, S/o Sh. Ram Dass
TGT (Arts)
17.09.2012
23.06.2015
Facts necessary for the adjudication of these petitions are as under:
In the State of Himachal Pradesh, there are invogue the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh State NonTechnical Services) Rules, 1972 (hereinafter referred to as 'the 1972 Rules'). Rule 5(1) of the abovementioned Rules provided as under:
"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 exservicemen who are already employed under State/Central Govt. against reserved posts)."
The constitutionality of these Rules was assailed before this Court by way of CWP No. 488 of 2001, titled as Shri V.K. Behal and others Vs. State of H.P. and others, which was allowed by the Hon'ble Division Bench of this Court vide judgment dated 29.12.2008 in the following terms:
"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 exservicemen who have not joined the Armed Forces during the period of emergency. It is also held that the benefit of such service cannot be given from a date prior to the date when the exserviceman attains the minimum educational eligibility criteria prescribed in the rules. Consequently, the seniority list Annexure P3 is held to be illegal and is accordingly quashed and the respondents are directed to reframe the same in accordance with the directions issued hereinabove. There shall be no order as to costs."
Said judgment was assailed before the Hon'ble Supreme Court by way of Civil Appeal No. 011060 of 2017, titled as R.K. Barwal and others Vs. The State of Himachal Pradesh and others. Hon'ble Supreme Court vide judgment dated 25th August, 2017,] dismissed the appeal by upholding the judgment passed by the Hon'ble Division Bench of this Court.
The effect of the judgment passed by this Court was that Rule 5(1) of the 1972 Rules (supra) was held to be unconstitutional, as far as it provided for granting the benefit of counting the benefit of past military service towards seniority in civil employment in case of exservicemen, who had not joined the Armed Forces during the period of emergency was concerned.
Incidentally, Rule 5(1) of the 1972 Rules, in addition to giving benefit of counting the past Army service towards seniority in civil employment, also conferred the benefit of counting the said period in the matter of fixation of pay. As far as the conferment of benefit of fixation of pay by counting past military service is concerned, the same was neither discussed nor touched by the Hon'ble Division Bench of this Court in Sh. V.K. Behal's case (supra).
Another Hon'ble Division Bench of this Court in CWP No. 4654 of 2013, titled as Avtar Singh Dyal Vs. H.P. State Electricity Board Ltd. and CWP No. 4708 of 2013, titled as Salinder Singh Vs. H.P. State Electricity Board Ltd. & Ors. reiterated that the Exservicemen were entitled for the grant of benefit of approved military service towards fixation of pay. Relevant portion of said judgment is quoted hereinbelow:
".....Rule 5(1) of the Demobilized Armed Forces Personnel (Reservation of vacancies in the Himachal Pradesh State Non Technical Services) Rules, 1972, reads thus: "
(1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant rules, shall count towards fixation of pay and seniority in that service. This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of exservicemen who are already employed under the State/Central Govt. against reserved posts."
In case the aforesaid rule is minutely analyzed, it would be seen that it comprises of two parts, 1st pertains to counting of service for the purpose of fixation of pay and 2nd pertains to counting of service for the purpose of seniority.
The question therefore, required to be determined is as to whether this court while deciding V. K. Behal's case (supra) declined all the benefits provided under Rule 5(1) (supra) to those exservicemen, who admittedly had joined the Armed Forces as a career. In our humble and considered opinion the court has only adjudicated upon the benefit of counting of past army service towards seniority in civil employment and has not adjudicated upon the conferment of benefit of past army service in so far it pertains to fixation of pay. In fact this claim was neither agitated by the petitioners therein nor adjudicated upon by this court. Rather what appears from the perusal of judgment is that even the petitioners therein had no objection in case financial benefit like fixation of pay was granted to the exservicemen, as would be clear from para3 of report, which reads as follows:
"3. The main contention raised on behalf of the petitioners by Sh.Dalip Sharma is that the Rules are unconstitutional because they give benefit of even those exservicemen 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 extraordinary 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 exservicemen 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 exserviceman 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 exservicemen 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 exservicemen 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 exservicemen 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."
Notably even this court did not find any illegality in so far as the pay of ex servicemen was protected, as would be clear from the following observations:
"10. There may exist an intelligible criteria for providing reservation to ex servicemen. The object is also reasonable i.e.. to rehabilitate the exservicemen but this object can be achieved by providing reservations to them. Nobody is against such reservation. Their pay can also be protected. The problem arises when there is a conflict between persons from the civil society who have joined service much earlier than the ex servicemen but then they are placed lower when the exservicemen who are given benefit of their past service regardless of the fact whether they have joined during emergency or not."
Once this is the position, the respondents cannot under pretext of judgment in V.K.Behal's case (supra), being subjudice before the Hon'ble Supreme Court, deny to the petitioners the benefit of approved military service for counting the same towards fixation of pay.
In so far as the question of counting the same towards the seniority is concerned, the same shall essentially have to abide by the decision of the apex court in V.K.Behal's case. In the event of the Hon'ble Supreme Court ultimately deciding in favour of the exservicemen, then needless to say that the same benefit shall also have to be extended to the petitioners.
With these observations, the petitions are partly allowed. The respondents are directed to grant the benefit of approved military service towards fixation of pay after considering their cases against the vacancies of exservicemen, which have arisen in the year 2012."
As already stands mentioned hereinabove, the judgment passed by the Hon'ble Division Bench of this Court in V.K. Behal's case has been upheld by the Hon'ble Supreme Court.
The grievance of the petitioners before this Court is that the benefit of approved military service is not being given to them towards fixation of their pay by the State on the pretext of Communications Annexure A5 and A6 appended with the petition.
I have heard learned counsel for the parties and have also gone through the relevant record of the case.
Annexure A5 is the Notification issued by the Department of Personnel, Government of Himachal Pradesh dated 29th January, 2018, vide which, Subrule(1) of Rule 5 of the 1972 Rules has been amended in the following terms:
"...Amendment of rule 5. 2. For subrule(1) of the rule 5 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State NonTechnical Services) Rules, 1972, for the existing provisions of Sub rule (1), the following shall be substituted, namely:
"Only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment to the service concerned, by the candidate(s) appointed against reserved vacancy under the relevant rules, shall count towards fixation of pay in that service at the time of first civil appointment against reserved vacancy. This benefit shall not be admissible in subsequent appointment(s) of Ex Servicemen who are already employed under the State/Central Government against reserved post(s):
Provided that such fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time."
As far as Annexure A6 is concerned, the same is a Communication dated 30th January, 2018 issued by the Chief Secretary, Government of Himachal Pradesh to all the Administrative Secretaries of the Government of Himachal Pradesh as well as other functionaries mentioned therein to the effect that in terms of the judgment of this Court in V.K. Behal's case, as upheld by the Hon'ble Supreme Court, the benefits of seniority extended under the provisions of the 1972 Rules and Exservicemen (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985, are to be reviewed and seniority lists in all cadres are to be reframed accordingly showing position as on 29.12.2008, when this Court had read down and declared the Rule 5(1) of the 1972 Rules as unconstitutional, in so far as it gives benefit of counting of past Army service towards seniority in civil employment in case of Exservicemen, who have not joined the Armed Forces during the period of emergency. This communication further provides as under:
".......However, the ExServicemen appointed against the vacancies reserved for Ex Servicemen in civil employment shall be entitled to avail the benefit of fixation of pay from a date when the ExServicemen attain minimum age and educational qualification eligibility criteria prescribed in the rules. The fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time. The above referred instructions dated 17.05.2013 are rescinded accordingly."
Coming to the facts of these petitions, the petitioners herein have reconciled with the fact that the benefit of approved military service cannot be given to them for the purpose of seniority in the course of their civil employment. They are only praying for grant of benefit of their approved military service for the purpose of fixation of their pay.
In my considered view, the act of the respondentState of not giving benefit of approved military service towards fixation of pay to the petitioners is arbitrary and not sustainable in law. This right stands conferred upon the petitioners by virtue of provisions of Subrule (1) of Rule 5 of the 1972 Rules. This right still exists in the Rules in issue. Though Hon'ble Division Bench of this Court in V.K. Behal's case (supra) has held the grant of benefit of approved military service towards fixation of seniority in the case of Exservicemen, who did not join Armed Forces in emergency to be unconstitutional, but the Hon'ble Division Bench did not comment upon that part of Subrule (1) of Rule5, which dealt with the grant benefit of approved military service towards fixation of pay. Not only this, the right of an Exserviceman to be entitled to the benefit of approved military service towards fixation of pay has been upheld by the Hon'ble Division Bench of this Court in Avtar Singh Dayal's case (supra), meaning thereby that this issue is no more res integra that in terms of Subrule (1) of Rule5 of the 1972 Rules, an Exserviceman, irrespective of the fact whether he has joined the Armed Forces during emergency or not, is entitled for the grant of benefit of approved military service towards fixation of pay.
Coming to Annexures A5 and A6 appended with the present petition, a perusal of the same demonstrates that the amendment which has been carried in Subrule (1) of Rule 5 vide Annexure A5, does not at all affects the rights of the present petitioners to claim the benefit of approved military service towards fixation of pay. In fact, what the Government of Himachal Pradesh has done by issuing Notification dated 29th January, 2018, is this that Subrule (1) of Rule 5 of the 1972 Rules has now been brought in harmony with the judgment of the Hon'ble Division Bench of this Court in V.K. Behal's case (supra). The provision of grant of benefit of approved military service for fixation of pay was there in the unamended 1972 Rules and the same has not been altered even by the amendment which has been carried out. This Court reiterates that Notification dated 29th January, 2018 does not adversely affects the right of the petitioners for the grant of benefit of approved military service towards fixation of pay. Similarly, Annexure A6 also nowhere creates any impediment towards the said right of the petitioners.
During the course of hearing, an argument was advanced by the learned Additional Advocate General to the effect that the petitioners shall be entitled to the grant of benefit of approved military service towards fixation of their pay prospectively from 29th January, 2018 onwards. In my considered view, the contention so raised on behalf of the State by the learned Additional Advocate General is worth rejection. The service conditions of Exserviceman, who joined civil employment are, inter alia, determined by the provisions of 1972 Rules. The Rule position as it existed at the time when the petitioners joined their service was that they were entitled to the grant of benefit of approved military service towards fixation of pay. It is not as if this right has been conferred upon them only by way of amendment, which has been incorporated vide Annexure A5. In this view of the matter, there is no merit in the contention of the State that the petitioners are entitled for the relief prospectively.
Accordingly, these writ petitions are allowed and the respondents are directed to grant the benefit of approved military service towards fixation of pay in favour of the petitioners as from the date of their joining civil employment. It is ordered that actual benefit shall be conferred upon the petitioners. In case entire emoluments are being paid to them within a period of 90 days from today, the State shall not be liable to pay any interest on the amount, as may be due to the petitioners, but in the event the emoluments not being paid within a period of 90 days from today, the State shall also pay simple interest @6% per annum on the due amount to each of the petitioner, as from the date of judgment.
Petitions stand disposed of in above terms, so also pending miscellaneous applications, if any.