IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 9110/2008 Decided on:31.3.2011 _____________________________________________ Dinesh Kapoor. …Petitioner. Versus Himachal Road Transportation Corporation and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Aman Sood, Advocate. For the Respondents: Mr. Adarsh Sharma, Advocate for respondent No.1. None for respondent No.2. _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Petitioner joined Indian Army as Commissioned Officer in the month of May, 1984. Thereafter, he joined the respondent-corporation as Service Manager, now re- designated as Works Manager, in the month of September, 1990. He made representation against the seniority list, which was published on 17.9.1991, as it stood on 31.3.1991 seeking benefit of the Demobilized Armed Forces Personal 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 (Reservation of Vacancies in Himachal Pradesh State Non Technical Services) Rules, 1972 (hereinafter referred to as ‘the Rules’ for brevity sake). According to the petitioner, he has exercised his option for considering him against the post of ex-serviceman category at the time of his appointment. Respondent-corporation has issued the final seniority list on 28.7.2001, as it stood on 31.3.1991. Petitioner has been reflected at Sr. No. 3 and respondent No.2 has been reflected at Sr. No.2. Respondent No. 2 though served is neither present nor represented by any Advocate. According to the reply filed by the respondent-corporation, seven posts of Service Managers were advertised, out of which four posts were meant for general category, one each for Scheduled Caste/Scheduled Tribe category and one for ex-servicemen. Petitioner applied for the post of Service Manager through proper channel against the post reserved for ex-servicemen. Respondent No.2, Sh. S.C. Mahajan, also applied for the post of Service Manager against the post reserved for ex- servicemen. Petitioner and respondent No.2 were put to test on 7/8.8.1990 and were selected against the general category and ex-servicemen, respectively. Respondent No.2 was appointed against the post of ex-servicemen category. He was given the benefit of approved military service. However, 3 according to instructions No. 18.2 and 18.4.6 of the Hand Book on Personnel Matters, Vol.-1 (Second Edition) issued by the State Government on 8.9.1981 followed by the respondent-corporation, it is incumbent upon the employer to seek option from the candidate whether he would like to be considered for the post of ex-servicemen in future or not. Instructions No.18.2 and 18.4.6 read thus: "I am directed to address you on the subject noted above and to say that the various concessions granted under the Demobilized Armed Forces Personnel (Reservation of Vacancies in 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 unreserved 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.” 2. The option has not been sought from the petitioner at the time when he was appointed against the general category, though he also belonged to ex-servicemen 4 category. It is admitted by the respondent-corporation that the petitioner has exercised his option in the month of May, 1991. The post of Service Manager reserved for ex- servicemen became available on 11.3.1996. The Court is of the considered view that once the petitioner had exercised option, his case was required to be considered against the post of ex-servicemen, which became available on 11.3.1996. In these circumstances, petitioner was entitled to get his approved military service counted under the Rules towards pay fixation and seniority. 3. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Petitioner shall be deemed to have been appointed against the post of ex-servicemen, which became available under the category of ex-servicemen with effect from 11.3.1996 with all the consequential benefits towards pay fixation and seniority etc. under the Demobilized Armed Forces Personal (Reservation of Vacancies in Himachal Pradesh State Non Technical Services) Rules, 1972. Needful be done within a period of 8 weeks from the date of production of certified copy of this judgment by the petitioner. No costs. (Justice Rajiv Sharma), Judge. 31.3.2011*awasthi*