Jaswant Singh And Others vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:

"(i) That the impugned Notification as well as the impugned communication (Annexures A­5 and A­6 respectively) may be read down to the extent that the same cannot be applied retrospectively to the applicants since they became eligible for benefit counting of past approved military service for th purpose of pay fixation of civil employment under Rule 5(1) prior to the amendment (A05) as well as instructions (A­6).

(ii) That the respondent may be directed to release all consequential benefits such as arrears etc. in favour of the applicants."

The case of the petitioners is that they were appointed to civil posts in their capacity as Ex­servicemen and accordingly, in terms of Rule­5(1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh State Non­Technical Services) Rules, 1972 (hereinafter referred to as 'the 1972 Rules'), they are entitled for having their pay fixed by counting past military service rendered by them. It is further the case of the petitioners that by mis­interpreting the judgment dated 29.12.2008, rendered by this Court in CWP No. 488 of 2001, titled as Shri V.K. Behal and others Vs. State of H.P. and others, as upheld by the Hon'ble Supreme Court in Civil Appeal No. 011060 of 2017, the respondent­State on the strength of Notification dated 29th January, 2018 (Annexure A­5) and a subsequent communication addressed by the Chief Secretary, Government of Himachal Pradesh to the other functionaries of the Government, is denying the benefit of pay fixation to them as from the due date.

I have heard learned counsel for the parties and have also gone through the pleadings as well as the documents appended therewith.

The issue involved in this writ petition is no more res integra, as the same has been settled by this Court in CWP No. 4654 of 2013, titled as Avtar Singh Dyal Vs. H.P. State Electricity Board Ltd., CWP No. 4708 of 2013, titled as Salinder Singh Vs. H.P. State Electricity Board Ltd. & Ors. and CWPOA No. 231 of 2019, titled as Sh. Amar Nath and others Vs. State of H.P. and others.

The law, which stands laid down by this Court in the said judgments is that Ex­servicemen are entitled for the benefit of counting of past military service for the purpose of fixation of pay in Civil employment under Sub­rule (1) of Rule 5 of the 1972 Rules (supra).

The contention of learned Additional Advocate General that the said right shall accrue upon the petitioners only after Annexure A­5 came into force is totally misconceived, because the benefit of counting of past military service was a part of the original Rules itself, as it was incorporated in the 1972 Rules and in V.K. Behal's judgment (supra), this part of the Rules was not set aside by the Hon'ble Division Bench of this Court. The Notification Annexure A­5 is nothing, but an act of the State to bring the 1972 Rules in harmony with the judgment passed by this Court in V.K. Behal's case, as upheld by the Hon'ble Supreme Court. However, the same does not takes away the right which already stands conferred upon an Ex­serviceman of counting of past military service for the purpose of fixation of pay in civil employment, as from the date of initial appointment by making it prospective as per Notification Annexure A­5. This issue has also been elaborately dealt with by this Court in CWPOA No. 231 of 2019, titled as Sh. Amar Nath and others Vs. State of H.P. and others.

Accordingly, in view of the observations made hereinabove, this petition is allowed and it is directed that pay of the petitioners shall be fixed by taking into consideration the active military service rendered by them as from the date of their initial appointment. Miscellaneous applications, if any, also stand disposed of.