IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5596 of 2008. Decided on: 27th October, 2010. Chuni Lal. .….. Petitioner. Versus State of H.P. & ors. …. .. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. For the petitioner : Mr. S.P. Parmar, Advocate. For the Respondents : Mr. Ankush Dass Sood, Addl. Advocate General. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral) The writ petition is filed with the following prayers: (i) The applicant falls under the definition of Ex- serviceman. The rules for the Reservist and for active service personnel are the same after the completion of Reserve Service, therefore, orders may kindly be passed in favour of the applicant. (ii) The Reserve Service has no bar towards consideration of all type of benefits like seniority, pay fixation & promotion etc. etc. under the said rules. So the same benefits be released in favour of the applicant from the date of his re-employment in the respdt.deptt.” 2. In the reply, it is stated as follows: “However, for reexamining the case of the applicant under Rule 18.4.6 i.e. “Consideration of an Ex-serviceman for recruitment against unreserved post and benefits as consequences thereof”, of the reservation for demobilized armed forces Personal Rules 1972 the case of the applicant was again sent to the respondent No.2 i.e. Chief Medical Officer, Kullu 2 vide Annexure PA to the application. Before the requisite information as required vide letter dated 21.1.1998, annexure PA to the application is furnished by the respondent No.3 to the respondent No.2, the applicant preferred the present application before this Hon’ble Tribunal, the respondent No.3 i.e. Chief Medical Officer Kullu vide his letter dated 16.6.2000 has intimated that the applicant had not tendered and given any option at the time of his reemployment in Civil Service for availing the benefit of the approved Military service under the relevant scheme. The attested photo copy of aforesaid letter of the Chief Medical Officer, Kullu dated 16.6.2000 is annexed as R-V with its English translation as R-V/T to the reply for kind perusal of the Hon’ble Tribunal. In view of the aforesaid facts and submissions and in the light of the provision of Rule 18.4.6., the case of the applicant can not be considered against the reserved post for an Exserviceman. The relevant provision of rules do provide that an Ex-serviceman can also be recruited through non-reserved posts in the normal course. At the time of such appointment he should be required to opt whether he would like to be considered against the reserved vacancy as and when it arises. If he does so then the benefit of seniority, pay fixation etc. will be available under the Rules when the vacancy in question arises, and the reserved vacancy will be deemed to have been filled accordingly. If however, he does not so opt, the benefit of pay and seniority under the rules will not be available to him and the next reserved vacancy will be filled by an ex-serviceman as per the procedure. The provisions of the aforesaid rules further provide that this benefit of option is to be allowed to the incumbents appointed as against un- reserved post after coming into force of the Rules/instructions regarding availability of option for ex-serviceman in Non-Technical and Technical services/posts and not from earlier dates. 3 Rule 18.5.3 of the policy and the demobilized Armed Forces Personnel, 1972 do again implicity say that the Ex-servicemen who though joined Military service after 1.11.1962, but were recruited against unreserved vacancies and who did not opt for consideration against a later reserved vacancy, are not to be given the benefit of any approved Military Service. Therefore the claim of the applicant is not covered under the aforesaid provision of Rules and as such the same is not tenable. In view of the foregoing submissions and relevant record annexed with the reply as Annexure R-I to R-V, the present application of the applicant is not maintainable and as such the same should not survive in the interest of justice.” 3. The petitioner was enrolled in the Army during emergency after 1.11.1962. As rightly contended by the learned counsel for the petitioner, an Ex-serviceman when recruited against unreserved vacancy should be asked for his option, as to whether he wanted to be adjusted against the next available reserved vacancy. Therefore, this writ petition is disposed of directing respondents No.2 and 3 to adjust the petitioner against the next available reserved vacancy of Ex-serviceman after his recruitment. It is also submitted that the petitioner had opted for the same. It is seen from the reply that the matter was under consideration before the second respondent. The consequential benefits arising out of such consideration shall be granted to the petitioner within a period of four months from the date of production of a copy of this judgment along with a copy of the writ petition and reply. 4 4. The writ petition is disposed of, so also the pending applications, if any. Dasti copy. (Justice Kurian Joseph), Chief Justice 27th October, 2010 (Justice Kuldip Singh), (tr) Judge.