HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4535/2008 (OA No.1661/1997) Date of Decision: May 14, 2009 Joli Ram ……. Petitioner Versus H.P. Housing Board …….. Respondent. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No For the petitioner : Mr. Vikrant Thakur, vice counsel. For the respondent : Mr. J. R. Thakur, Advocate Sanjay Karol, J. (Oral) Petitioner is claiming benefits of accrued military service towards pay fixation and seniority with all consequential benefits. Petitioner joined the Army and served the nation between 28.8.1963 and 31.8.1978. Thereafter, on 19.7.1979 the respondent appointed him as a Road Roller Driver on daily wage basis and as a Driver on work charged basis w.e.f. 6.2.1981. His services were regularized on 4.5.1998. Petitioner has been repeatedly representing to the Board, requesting for according the benefits of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh Non-Technical Services) Rules, 1972. In the reply, the respondent has opposed the petition simply on the ground that since the petitioner’s appointment was to a non- reserved post, hence he is not entitled to the benefits of the said Rules. 2 It is an admitted position that the petitioner’s appointment was to a non-reserved post as no post of a reserved category from an Ex- servicemen quota was available. But, however, the fact of the matter being that the Government itself has issued instructions/advice contained in Hand book on Personnel Matters Volume-I (Second Edition) (Page 748), which are reproduced as under:- “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. Personnel Deparment’s Dy. No. S.F.-164/93. Advice given on 17.5.1993. 3 (ii) File No. RDP 1-2-B(4)36/92 of R.I.D. Personnel Deparment’s Dy. No. F.265/A-III/93. Advice given on 16.7.1993.” Thus, the stand taken by the respondent is obviously untenable in law. The petitioner’s case ought to have been considered in the light of the aforesaid instructions. Hence, the respondent is directed to consider the petitioner’s case, in accordance with law, keeping in view the aforesaid instructions/advice, within a period of four months from today. Needless to add, the petitioner shall be afforded opportunity of hearing/representation and the respondent shall pass a reasoned order, which shall be communicated to him. Liberty granted to the petitioner to approach the Court, if need so arises. With the aforesaid observations, the petition stands disposed of. ( Sanjay Karol ), Judge. May 14, 2009 (rana)