IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 10868 of 2008. Decided on: 19.5.2011. ___________________________________________________________ Shri Devi Singh. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ajay Kumar Dhiman, Advocate. For respondents No. 1 to 3 : Mr. Anil Jaswal, Dy. A.G. For respondent No.4 : Mr. Sandeep Sharma, ASGI. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The petition has been filed on the following prayers vide para 7 (a), (b) & (c):- “7 (a). That order Annexure A-5 dated 23rd June, 2003 may kindly be quashed and set aside and the respondents may kindly be ordered to reconsider the case of the applicant for pay fixation and seniority as per the Rules referred to in the Original Application. (b). That the pay of the applicant may kindly be ordered to be refixed as per the Demobalised Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh State Non- Technical Services) Rules, 1972 and as per table given under Item No. 18.6.2 and arrears of pay may kindly be ordered to be paid to the applicant. (c). That the applicant may kindly be declared entitled to the benefits of his past services 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 rendered in the armed forces for seniority and pension purposes..” 2. In the reply on behalf of respondents No. 1 and 2, the following stand has been taken vide para 3:- “3. That in reply to this para, it is very humbly submitted that as per record available with the Block Medical Officer Pangi at Killar, the applicant was working as Driver on the basis of daily wages since June 29, 1993 to February 3, 1998 whereafter his services were regularized by the Resident Commissioner, Pangi on February 03, 1998 as per Annexure A-2 to the OA. It is submitted for kind perusal of the Hon’ble Tribunal that in pursuant to the Government Notification dated September 10, 1997, the replying respondent passed directions to all the Chief Medical Officers in the State of Himachal Pradesh that newly created posts of Drivers may be filled up after observing codal formalities. A copy of Hundred Point Roster was also supplied to them for the purpose of appointments. The attested photo copy of the said letter dated September 19, 1997 is placed on record as Annexure R-2/I to the reply for kind perusal of the Hon’ble Tribunal. In continuation to the said letter dated September 19, 1997, another letter indicating District-wise allocation of posts of Drivers and category-wise roster points, was issued by the replying respondent on September 27, 1997 according to which 12 posts were allocated to District Chamba and none of them belonged to the Ex-servicemen quota. The attested photo copy of the aforesaid letter dated September 27, 1997 is 3 also placed on record as Annexure R-2/II to the reply for kind perusal of the Hon’ble Tribunal. The service book of the applicant as also the memo dated February 3, 1998 (Annexure A-2) both reveal that the services of the applicant from daily wages have been regularised in a direct manner without concurrence of the Government and observing necessary codal formalities like interview etc. as directed vide letter dated September 19, 1997 (Annexure R- 2/I), after having his name not been sponsored from the Employment Exchange concerned as also from the Ex-servicemen Cell, as required under the provisions of ‘Demobilised Armed Forces Personnel Rules, 1972” and instructions issued subsequently from time to time thereto by the Government in the matter. Hence, the claim of the applicant for extending the benefit of approved military services could not/cannot be considered and given to him over and above the rules ibid.” 3. There is no reply on behalf of respondent No.3. 4. Some undisputed facts may be noticed first. The petitioner, who is an ex Indian Army Personnel, had joined the employment of the respondent-Department as a daily rated Driver on June 29, 1993 and had worked as such up to February 3, 1998, when his services were regularised as per memo of even date, Annexure A-2. 5. The record reveals that before the petitioner joined the employment of the respondent-Department, he had served the Indian Army from December, 1975 to 30th June, 1992 and had thus, put in 16 years and 6 months Army service. The matter with regard 4 to ‘counting of qualifying military service for proficiency increment, promotion etc.’ is governed by instruction 18.5.2 of Chapter 18 of the Hand Book On Personnel Matters, Vol.-I (Second Edition), Government of Himachal Pradesh, Department of Personnel, which is as follows:- “18.5.2. Counting of qualifying military service for proficiency increment, promotion etc. The benefit of approved military service for seniority is allowed to an ex-serviceman against the post to which he is initially appointed and in the matter of confirmation/further promotion/grant of higher pay scales, an ex-serviceman is required to put in actual service in the post to which he is initially appointed. The provisions below Rule 11 of Recruitment & Promotion Rules standardized by the Govt. provide that if a junior person becomes eligible for promotion by virtue of his length of service in the feeder post all persons senior to him shall be deemed to be eligible for consideration and placed above the junior person provided all incumbents to be considered possess minimum qualifying service of at least three years or that prescribed in the Recruitment & Promotion Rules, whichever is less and when a person becomes ineligible because of requirement of three years service, the persons junior to him shall also be deemed to be ineligible for promotion. The last ineligible clause is not to operate in cases where the senior incumbent happens to be an ex-serviceman. Keeping these provisions in view the Govt. have decided that ex-servicemen who get benefit of their approved military service for seniority will be allowed promotion/next higher scales as under:- i) On completion of three years service in civil post they are to be considered eligible for promotion to higher post, if their juniors are eligible and are promoted subject to suitability and availability of posts; 5 ii) On appointment to the posts of Clerks, Steno- Typists and Stenographers, the minimum actual service for grant of first higher pay scale will be three years provided the approved military service counted for seniority taken together with the actual service commutes to at least five years.” 6. Instruction 18.5.3 with regard to ‘fixation of seniority of ex-servicemen and their dependents who are not to be given benefit of any approved military service’ is as under:- “18.5.3. Ex-servicemen in the following two cases are not given benefit of approved military service:- i) Ex-servicemen who joined the Armed Forces before 1-.11.1962; and . ii) Ex-servicemen who though they joined military service after 1-11-1962, were recruited against unreserved vacancies and did not opt for consideration against a later reserved vacancy. Obviously dependents of ex-servicemen recruited under the Rules have no approved military service for being counted and as such they do not get any benefit in the matter of seniority. The dependents of ex-servicemen, as such get seniority assigned from the year of actual appointment. The date however, will not always be the actual date because it may be that in the same recruitment year direct recruitment may take place and according to the Rules all direct recruits should rank senior to ex-servicemen (and their dependents) of that year. As such the dates of appointment of direct recruits and ex-servicemen (and dependents) will be determined by applying the KLM formula (See Chapter 13 on Seniority).” 6 7. It has been specifically admitted on behalf of respondents No. 1 & 2 in para 6 (iii) to (v) of the reply that the petitioner had submitted option dated February 4, 1998, Annexure A-3, in terms of sub clause (ii) of Instruction 18.5.3. Thus, it was incumbent upon the respondents to have considered such option and grant the benefit of approved military service to the petitioner in accordance with rules. 8. In view of the above, the petition is allowed with a direction to the respondents/competent authority to consider the case of the petitioner for grant of the benefit of approved military service for the purposes of fixation of pay and seniority etc. along with consequential benefits, if any, in accordance with law, within three months from the date of production of copy of this judgment by the petitioner, failing which interest at the rate of 6% per annum shall also be payable. 9. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. May 19, 2011. (cr)