IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 8253 of 2008 Reserved on: 25.3.2011 Decided on: 21.4.2011 Nikku Ram …Petitioner. Versus H.R.T.C. & another …..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Surinder Sharma, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. Kuldip Singh, Judge The petitioner has filed the petition for quashing of Annexure A-9 dated 23.10.2001, vide which the benefit of ex- serviceman was not given to him. The petitioner has also sought direction against the respondents to treat the petitioner to be appointed against the vacancy reserved for ex-servicemen from the date of initial appointment on 3.5.1990 and to grant him consequential benefits like seniority, pay fixation on the basis of Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 and the instructions issued by the State of Himachal Pradesh from time to time. It has also been prayed that the respondents may be directed to assign seniority of the petitioner in the cadre of drivers 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 after counting his approved military service of 19 years and to grant him consequential benefits. 2. The pleaded case of the petitioner is that he joined the Indian Army on 16.12.1968 and was released from the Army on 29.4.1976. He served D.S.C. from 30.12.1977 to 31.12.1986. The State of Himachal Pradesh has framed Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non- Technical Services) Rules, 1972 (for short the ‘Rules’). Rule 5 provides the benefit of approved military service for the purposes of seniority and pay fixation of the candidates appointed against the reserved vacancies. The State of Himachal Pradesh vide notification dated 23.5.1975 has granted benefit of Rules to the released army personnel appointed against a general un-reserved vacancy in the first instance provided he gives an option to accept a reserved vacancy even if it occurs subsequent to his appointment. 3. The petitioner was appointed as a driver in the respondent No.1 Corporation vide order dated 23.4.1990. The petitioner immediately after his appointment submitted his option in conformity with notification dated 23.5.1975 for appointment against the reserved post meant for ex-servicemen and for giving him consequential benefits. On 16.9.1997, the petitioner had made a representation to Deputy Divisional Manager of respondent No.1 for giving him benefit of ex-serviceman. The petitioner vide letter dated 23.4.2001 was informed that since he has been appointed against the post reserved for Scheduled Caste, he could not be considered to be appointed against the vacancy reserved for ex-servicemen. The petitioner again made a representation dated 3 6.7.2001 to respondent No.1 Corporation pointing out that he has not been appointed against the vacancy reserved for Scheduled Caste quota, he should be deemed to be appointed against reserved post of ex-servicemen since he had already given his option. The petitioner made another representation dated 23.7.2001 and detailed representation to Transport Minister on 19.9.2001. The petitioner vide letter dated 23.10.2001 was informed that he had been appointed against the vacancy reserved for Scheduled Caste and, therefore, he was not entitled to benefit of ex-serviceman. The petitioner thereafter made a representation dated 3.12.2001 but without any positive result. 4. The petitioner has taken the pleas that the impugned Annexure A-9 dated 23.10.2001 is wrong, illegal, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. The petitioner has approved military service of about 19 years and he is entitled to get the benefit of military service under the Rules in view of notification dated 23.5.1975. The petitioner had already given his option as required in the notification dated 23.5.1975. The authorities have wrongly rejected the representations of the petitioner. Assuming the petitioner was appointed against the post reserved for Scheduled Caste even then the petitioner was required to be given option which he has given and, therefore, was to be granted all the benefits of Rules. On these grounds the petition has been filed. 5. The respondents have contested the petition by filing a reply. It has been stated that Rule 5 is not applicable inasmuch as the petitioner was appointed as driver against the vacancy reserved for Scheduled Caste. He was not appointed against the reserved 4 vacancy of ex-servicemen. The representation made by the petitioner was considered by the competent authority and it was rejected after due application of mind. 6. I have heard the learned counsel for the parties. The notification dated 23.5.1975 provides that the benefits of Rules are admissible only when the persons concerned are selected against the reserved vacancy. It has been clarified that in order to remain within the scope of Rules, the concessions in question cannot be extended against ‘un-reserved’ vacancies. But where a Released Army Personnel has qualified against a ‘non-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 would automatically give the benefit of concessions like seniority etc. in the manner specified in the Rules. 7. The expression ‘reserved’ vacancies used in the notification dated 23.5.1975 refers to vacancies reserved for being filled up by the released Indian Armed Forces Personnel or ex- servicemen referred to in the Rules. The concession provided in the Rules cannot be extended against ‘un-reserved’ vacancies. The notification dated 23.5.1975 provides that where a Released Army Personnel has qualified against a ‘non-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 provided in the Rules. The expression ‘non- reserved’ vacancy provided in the notification dated 23.5.1975 5 refers to vacancy other than ‘reserved’ vacancy covered by the Rules. 8. The stand of the respondents is that the petitioner was appointed against Scheduled Caste vacancy and not against the vacancy reserved for ex-servicemen, therefore, the petitioner is not entitled to benefits of the Rules. The Scheduled Caste vacancy is a ‘non-reserved’ vacancy for the purposes of Rules and notification dated 23.5.1975. The benefits of Rules and notification dated 23.5.1975 cannot be denied to a person who has been appointed against the Scheduled Caste vacancy if he fulfils the other conditions of the Rules and notification dated 23.5.1975. In the present case the benefits of Rules have been denied to the petitioner only on the ground that he was appointed against the Scheduled Caste vacancy and not vacancy reserved for ex- servicemen. The respondents have not projected the case that after releasing from Army this is not his first civil employment with the respondents nor it is the case of the respondents that after his appointment as driver, the petitioner did not give his option as provided in the notification dated 23.5.1975. It is also not the case of the respondents that ‘reserved’ vacancy referred to in the Rules and notification dated 23.5.1975 did not occur subsequent to the appointment of the petitioner as driver. Thus seen from any angle the petitioner is entitled to the benefit of Rules read with notification dated 23.5.1975 and, therefore, Annexure A-9, dated 23.10.2001 is not sustainable. 9. No other point was urged. 10. The result of the above discussion, the petition is allowed, Annexure A-9 dated 23.10.2001 is quashed and set aside. 6 The respondents are directed to consider the case of the petitioner in the light of observations made above for giving him the benefits of approved military service under the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non- Technical Services) Rules, 1972 read with notification dated 23.5.1975 for the purposes of seniority, pay fixation and other consequential benefits within a period of two months from the date of supply of copy of the judgment by the petitioner to the competent authority. ( Kuldip Singh ), April 21, 2011. Judge. (vt)