IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P.(T) No. 4071 of 2008. Reserved on: 09.05.2011. Decided on 20.05.2011. _____________________________________________________ Hira Singh. …Petitioner. -Versus- The State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the petitioner. : Mr. V.D. Khidta, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner joined the Indian Army in 1980. He was discharged from the Indian Army. Thereafter, he applied for the post of Physical Education Teacher. He was appointed as Physical Education Teacher on 18.09.1998 against the General category. Respondent-State has issued instructions on 23.05.1975, whereby a released army personnel, who has been appointed against a non-reserved vacancy, is required to be given at first instance an option to accept a reserved vacancy, even if it occurs subsequent to his appointment to give him the benefit of seniority etc.. In this case, the petitioner exercised his option on 05.11.1999. However, pay of the petitioner was fixed w.e.f. 01.01.2001 instead of 18.09.1998, as claimed by him. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - 2. Mr. V.D. Khidta, learned counsel for the petitioner has strenuously argued that action of the respondents of fixing the pay of the petitioner w.e.f. 01.01.2001 instead of 18.09.1998 is wrong, illegal, arbitrary and, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, his client has exercised his option on 05.11.1999 as per instructions dated 23rd May, 1975 and the vacancy was also available under the category of Ex-servicemen. In other words, his plea is that the petitioner was required to be considered against the post of Ex- servicemen when the vacancy became available against the category of Ex-servicemen in order to give him the benefits under the Demobilised Armed Forces Personnel (Reservation of Vacancy in H.P. State Non-Technical Services) Rules, 1972. 3. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that no vacancy was available between 18.09.1998 till 01.01.2001. In other words, the date of fixation of the petitioner has been justified w.e.f. 01.01.2001. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner is an Ex-serviceman. He has been appointed against the General category. However, it is evident from instructions dated 23rd May, 1975 that when a released army personnel has been appointed against a non-reserved vacancy, he should be given at first instance an option to accept a reserved vacancy even if it occurs subsequent to his appointment to give him the benefit of seniority etc.. In the instant case, the petitioner has exercised his option on 05.11.1999. - 3 - 6. Mr. V.D. Khidta, learned counsel for the petitioner has drawn the attention of the Court to Annexure A-7, dated 22.06.1999, whereby the Ex-servicemen Cell has recommended the names of eight persons to be appointed against the posts reserved for Ex-servicemen. Thus, it is evident that the posts under the category of Ex-servicemen were lying vacant and despite that, the case of petitioner was not considered on the basis of option exercised by him on 05.11.1999. His pay has been fixed vide Annexure A-6 w.e.f. 01.01.2001 on 27th April, 2004. This has been done on the pretext that the vacancy has become available only on 01.01.2001. 7. Since in this case the post was available, case of the petitioner was required to be considered against the vacancy which was available in 1998-1999. The stand of the respondent- State that no vacancy was available, is contrary to the record. 8. Accordingly, in view of the observations and discussions, made hereinabove, the petition is allowed. Annexure A-6, dated 27.04.2004 is quashed and set aside. The respondents are directed to fix the pay of petitioner and grant him other benefits towards seniority etc. from the date when the vacancy has become available under the category of Ex- servicemen in 1998-1999, within a period of two months from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge May 20, 2011. (bhupender) - 4 - - 5 - `