IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No. 5120/2010 Judgment reserved on 12.7.2011 Date of decision: 24. 8. 2011 Govind Singh …..Petitioner Versus State of H.P. and others. …..Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the Petitioner: Mr. Dilip Sharma, Advocate. For the respondents: Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, Judge. By means of the present writ petition, the petitioner has sought the following reliefs:- (i) That rejection of the claim of petitioner for pay fixation vide letters dated 24.8.2001 Annexure P6 and letter dated 21.11.2008 Annexure P10 may kindly be quashed and set aside; (ii) That the respondent department may be directed to fix the pay of petitioner on joining service as Patwari against vacancy reserved for Ex-servicemen against second preference, by taking into account his past Army service as per instructions dated 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - 2.8.1983, Annexure P2, as explained in the illustrations at Annexure P12, with all consequential benefits including arrears of pay, and revision of his retiral benefits on the basis of such pay fixation; (iii) That the respondents may be directed to grant interest at market rate on arrears of pay and retiral benefits becoming due and payable to the petitioner on account of his correct pay fixation. 2. The petitioner joined the Indian Army on 26.9.1961 and worked as Combatant Clerk. On his retirement from the Military service, he got his re- employment as Patwari and joined on 30.3.1989 in District Mandi, H.P. In fact, Ex-Servicemen who had joined the military service on or before 1.11.1962 were not covered under the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972, hereinafter referred to as the 1972 Rules. According to the petitioner, the benefit of appointment against the posts reserved for such Ex-servicemen was extended vide Government of H.P. GAD letter dated 19.6.1972 (AnnexureP1) against the left over vacancies remaining un-utilized after offering such posts to Ex-Servicemen joining civil employment after 1.11.1962. But such Ex-servicemen were not given the benefit of pay fixation and seniority on the basis - 3 - of their approved military service, like the Ex- servicemen joining Armed Forces after 1.11.1962. The H.P. Government Finance (Regulation) Department vide office memorandum dated 2.8.1983 (Annexure P2) issued the instructions regarding fixation of pay of Ex-Servicemen military personnel on their re- employment under the State Government who were not covered under the 1972 Rules. 3. Admittedly the petitioner was a Junior Commissioned Officer (JCO), i.e., Subedar Major and was discharged from Indian Army on 31.3.1985. He was appointed as ‘Patwari’ in the time scale of `400-660/- on the recommendation of the Ex- Servicemen Cell, Hamirpur vide order dated 29.3.1989 (Annexure P3). He joined as Patwari on 30.3.1989. 4. The petitioner made representation on 14.9.2001 (Annexure P7) clarifying his stand seeking protection only of his pay last drawn in the Army service. 5. The petitioner vide letter dated 17.10.2008 also requested the Deputy Commissioner, Mandi to fix his pay in accordance with the aforesaid letter but vide letter dated 21.11.2008 (AnnexureP10), it was rejected. - 4 - 6. Shri Dilip Sharma, learned counsel for the petitioner submitted that the petitioner was appointed as ‘Patwari’ under the second preference as per instructions dated 19.6.1972 as Ex- servicemen joining Armed forces after 1.11.1962 are not covered in the matter of pay fixation by 1972 Rules. Thus, the instructions dated 20.8.1983 (P2) with respect to the fixation of pay of Ex-servicemen Military personnel on their re-employment gets attracted for the purpose of their pay fixation. It is also ventilated that the case of the petitioner was never examined in the light of the instructions dated 2.8.1983 aforesaid and subsequent letter OM No. Fin (C) B (7)-10/84-II dated 18.12.1991 issued as a result of revision of pay scales w.e.f. 1.1.1986, he was wrongly declined the pay benefits as claimed. 7. The respondents resisted and contested the claim of the petitioner on the ground that though 1972 Rules were not applicable to the petitioner but since he joined as ‘Patwari’ on 30.3.1989, therefore, H.P. State Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1988 would apply. - 5 - 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 9. Admittedly, the petitioner had joined the military service before 1st November, 1962 and on his re-employment in civil service, is not covered under the 1972 Rules as he joined civil employment as Patwari on 30.3.1989. But before joining as such, in the year 1988, the H.P. State Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1988 came into force w.e.f. 1st June, 1988. In other words when the petitioner joined the civil employment, the aforesaid orders were in force. Therefore, the order aforesaid would apply to his case; as vide O.M. No. Fin. (C) B (7)-10/84-II dated 18.12.1991, the Government of H.P. issued clarification/instructions substituted the formula of pay fixation to the Ex- military personnel on their re-employment under the Government of H.P. as a result of revision of pay scale w.e.f. 1.1.1986. But pertinently these instructions were operative up to 31.5.1988, as per para 4 thereof, where after the H.P. State Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1988, as circulated vide OM No. Fin. (C) B (7)/10/1984 dated 1.12.1988 shall be operative. - 6 - 10. Thus, the aforesaid position makes it absolutely clear that 1983 instructions as modified subsequently by 1991 instructions would remain effective w.e.f. 1983 to 31.5.1988, thereafter w.e.f. 1.6.1988, H.P. State Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1988 had come into force and would apply with respect to the fixation of pay to such Ex-servicemen. Hence the petitioner shall be governed by Order 4 thereof and the petitioner is only entitled to draw the pay in the prescribed scale of the pay for the post in which he is re-employed and no protection of the pay scales of the post held by him prior to his retirement is permissible. Thus, the petitioner is rightly fixed at the minimum of the pay scale of post of Patwari. 11. For the foregoing reasons, no relief as sought for, can be granted to the petitioner. As such the petition is dismissed. August 24, 2011 (Surinder Singh), (cm) Judge