Joginder Singh vs State of H.P. and Others

Justice Sanjay Karol, J.—Petitioner has confined his petition to the following relief No. III:-

That the respondents may be directed to give the benefit of appointment to the applicant as a PET/PTI as per the OM dated 23.5.1975 vide A-6, against a subsequent reserved post of ex-serviceman-PET/PTI which occurred after his appointment/joining for pay-fixation, seniority and all consequential benefits forthwith

Learned counsel for the petitioner has relied upon judgment dated 24.02.2011 passed by a Coordinate Bench of this Court in Parkash Chand Vs. The State of H.P. & others, CWP(T) No. 14559 of 2008 (copy of which is taken on record), wherein under similar facts and circumstances, it is held that benefit of instructions dated 23rd May, 1975 are to be accorded to an employee subject to his exercising option, which in fact is to be sought by the employer.

In the instant case, it can not be disputed that petitioner who had rendered services in the Indian Army was subsequently employed as a Physical Education Teacher against a general unreserved post.

In Parkash Chand (supra), this Court has held as under:-

Admittedly, the petitioner is an Ex. Indian Army Personnel. After discharge from Army he joined the employment of the respondent-Department as Physical Education Teacher (PET) on 21.08.2000 against a general un-reserved vacancy. Thus, though on a plain reading of the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972, he was not entitled for the grant of benefit of approved military service, yet by relying upon government of Himachal Pradesh, General Administration Department letter No. 11-76/71-GA-A (Vol.II), dated 23rd May, 1975, addressed to all the Secretaries, heads of departments etc., Annexure A-6 [at page 791 of the hand Book on Personnel Matters, Vol-I (Second Edition), government of Himachal Pradesh, Department of Personnel] read with CASE-VI given under Instruction 18.7, dated 17.5.1993/16.07.1993 at page 748 of the aforesaid Hand Book on Personnel Matters, which are as under, he contends that it was incumbent on the part of the respondents to obtain option from him to accept a reserved vacancy occurring subsequent to his appointment and since it was not done and he cannot be faulted on this count, the lapse is required to be rectified at this stage in view of the aforesaid Instructions:

Annexure A-6

"Copy of Government of Himachal Pradesh, General Administration Department letter No. 1176/71-GA-A (Vol.II), dated the 23rd May, 1975 addressed to all Secretaries, Heads of Departments etc.

...... (Referred to in paras 18.2 and 18.4.6)

Subject:

Demobilised Army personnel-Concession when recruited against un-reserved vacancies.

I am directed to address you on the subject noted above and to say that the various concessions granted under the Demobilised Armed Forces Personnel (reservation of Vacancies in the Himachal State Non-technical services) Rules, 1972, notified vide this Department Notification of even number, dated the 28th March, 1972 are admissible only when the persons concerned are selected against the reserved vacancies. In this connection it is clarified that in order to remain within the scope of the relevant Rules, referred to above, the concessions in question cannot be extended against un-reserved vacancies. But where a Released Army Personnel has qualified against a non-reserved vacancy and has been appointed against a general un-reserved vacancy in the first instance he should be given an option (only at the time of first appointment) to accept a reserved vacancy even if it occurs subsequent to his appointment. This will automatically give the benefit of concessions like seniority etc., in the manner specified in the Rules ibid.

CASE-VI

Issue :-The instructions contained in General Administration Department letter No. 11-76/71-GA-A (Vol.II) dated 23rd May, 1975 provide that where a Released Army Personnel (an ex-serviceman) is appointed against an un-reserved vacancy in the first instance, he should be given an option (only at the time of first appointment) to accept a reserved vacancy even if it occurs subsequent to his appointment. In this connection doubts were expressed whether in a case where the Department did not ask for option immediately on first appointment the option given after two or three years of the date of appointment can be entertained.

Advice:-The instructions in question require the concerned Department to ask for option immediately on first appointment of an ex-serviceman against un-reserved post. In cases where the Department has erred in not asking for option in time, the incumbent is not at fault and even on his exercising option after two or three years, he has to be allowed the benefit as admissible under the General Administration Department''s instructions dated 23rd May, 1975.

[(I) File No. Home-B(C) 11-7/87 of Home Department. Personal Department''s By. No. S.F164/93. Advise given on 17-5-1993.

(ii)File No. RDP 1-2-B(4) 36/92 of R.I.D. Personnel Department''s Dy. No. F. 265/A-III/93. Advise given on 16-7-1993

In view of the above, the petition is disposed of with a direction to the respondents/competent authority to offer an opportunity to the petitioner to exercise option in terms of the aforesaid Government Instructions and take a final decision in the matter within three months from the date of production of copy of this judgment by the petitioner. Needless to say that consequential benefits, if any, would follow."

In the affidavit dated 5th November, 2007 filed by the Director, Elementary Education, Himachal Pradesh, it is stated that benefit of instructions dated 23rd May, 1975 cannot be accorded since petitioner failed to exercise his option within a period of one year. Significantly, it is not their case that in fact this option was ever sought for from the petitioner by the employer. His option was never sought. Benefits were not accorded to him, therefore, he approached this Court. As such, petition needs to be allowed. More so, for the reason that this Court has already dealt with the issue in question.

Present petition is thus disposed of with a direction to the respondents/competent authority to afford an opportunity to the petitioner to exercise his option in terms of various instructions issued by the Government from time to time and take a final and appropriate decision in the matter, in accordance with law, within a period of three months from the date of production of certified copy of this judgment by the petitioner. All consequential benefits, if any, shall follow.

Pending application(s), if any, also stands disposed of