IN THE HIGH COURT OF HIMACHAL PRADlESH , SHIMLA. CWP(T)No.: 4201/2008. Decided on: 17.4.2009. Harkewal Singh. …Petitioner. Versus H.R.T.C. & Others. …Respondents. ___________________________________________________ Coram: The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting ? For the Petitioner : Ms. Archana Dutt, Advocate. For the Respondents : Mr. Adarsh Sharma, Advocate. Sanjay Karol, J.(Oral) The petitioner served the Indian Army from 20.7.1963 to 31.1.1980. Against an unreserved vacancy, he was appointed as Driver with the respondent on 25.2.1984. His services were regularized as such w.e.f. 28.1.1985 and pay scale fixed at Rs. 400-600/-. The State of Himachal Pradesh, in order to give benefit to the Ex-serviceman formulated a policy and framed Rules known as Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. non-technical services) Rules,1972 (here-in- after referred to as the Rules). Whether reporters of Local Papers are allowed to see the judgment.? 2 Rule 5(1) provides for as under:- “i) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against the reserved vacancies under the relevant rules shall count towards fixation of pay and seniority in that service.” The Government has issued clarification dated 23.5.1975 (Annexure-PK) which reads as under:- “…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 the 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 un-reserved 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 3 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 ibid.” It is the petitioner’s grievance that benefits of these rules were not accorded to the petitioner for the purpose of determining his seniority and pay fixation. The present petition was filed on 2.1.1997. From the record it is evident that the vacancy reserved for an Ex- serviceman, which had arisen subsequent to the petitioner’s appointment was not offered to him. The respondents, in their reply have tried to justify their action by simply stating that since the petitioner’s appointment was against unreserved vacancy, hence, he was not entitled to the benefits of the aforesaid rules. In the teeth of the aforesaid rules the respondents justification is untenable in law. Letter dated 18.5.1995 (Annexure-PF) rejecting the petitioner’s claim reads as under:- “…..Kindly refer to your notice dated 1.3.1995 on the above noted subject and to inform you that Shri Harkewal Singh, Ex-driver was not appointed to the post of driver against the reserved vacancy of Ex-Servicemen. He was appointed against the non-reserved post and as such he is not entitled for the benefit of 4 pay fixation. This for favour of your kind information please.” The respondent’s action is in-violation of the Rules as the petitioner was entitled to the benefit of the rules and entitled to be considered for an appointment to the post which had fallen vacant subsequent to his appointment. It is not the respondent’s case that the petitioner was otherwise not eligible for the benefits under the rules. Even though the petitioner has retired but however it would have a definite bearing on his pensionary benefits. In these circumstances, the respondents are directed to accord benefits to the petitioner, from the date to which the petitioner was entitled for appointment to the reserved past. The same be done in accordance with the Rules and instructions issued by the Government, from time to time for any refixation of pay, and as a consequence of his entitlement/appointment to a reserved past, the respondents shall disburse the arrears to the petitioner within a period of three months from today, failing which thereafter he shall also be entitled to interest at the rate of 9% per annum. Keeping in view the attending circumstances and also the facts that the petitioner was forced to litigate over a long period of time the respondents shall also pay costs of Rs.11,000/- to the petitioner. Petition stands disposed of accordingly. (Sanjay Karol), Judge. April 17, 2009 (R).