IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No.8907 of 2008. Date of decision: 29.6.2011 Hari Chand …Petitioner Versus State of H.P. and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Petitioner : Mr.Ranjan Sharma, Advocate. For the Respondents : Mr.Vivek Thakur, Addl.A.G. for Respondents No.1 to 3. Mr.Naveen K. Bhardwaj, counsel for R-4. Deepak Gupta, J. (oral). 1. The petitioner, who is an ex-serviceman, has prayed that his approved military service be taken into consideration for fixation of pay and seniority and the respondents be directed to give him such benefit with effect from the date when respondent No.4 was appointed. 2. The petitioner was enrolled in the Indian Army on 23.2.1974. He was discharged from service on 1.3.1998 after rendering 24 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 years of approved military service. In the year 2000, respondent No.3 conducted interviews for selection to the post of Physical Education Teacher. The petitioner applied for the same and was offered appointment. Though the petitioner was an ex-serviceman he was selected against the post meant for general category. The petitioner submitted his option Annexure A-5 on 20th September, 2000 praying that though he had been appointed against the general quota, in case any post had to be filled in from the ex-servicemen category then he opts to be appointed against the said post. 3. The petitioner relies upon the instructions issued by the State of Himachal Pradesh, Annexures A-3 & A-4. Relevant portion of the instruction dated 23.5.1975 reads as follows: “….But where a Released Army Personnel has qualified against a non-reserved vacancy and has been appointed against a general un- reserved vacancy in the first instance he should 3 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.” 4. The aforesaid instructions were reiterated again vide Annexure A-4, relevant portion of which reads as follows: “An ex-serviceman can also be recruited to non-reserved posts in the normal course. At the time of such appointments 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 filed 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 up by an ex-serviceman as per the procedure. This benefit of option is to be allowed to incumbents appointed against unreserved posts after the coming into force of the Rules/Instructions regarding availability of option for ex-servicemen in non- technical/technical services/posts and not from earlier dates.” 4 5. The petitioner had exercised this option and reiterated his option but despite this he has not been given the benefit of his option. 6. The stand of the State is that vide letter dated 22.1.2003 the Government has issued instructions that only those ex-servicemen who come through the Ex-servicemen Cell can be given such benefit. 7. Without going into the legality of the instructions issued on 22nd January, 2003, the petitioner cannot be denied the benefit by taking aid of the aforesaid letter since he was appointed much before the issuance of this letter and had also given his option prior to the issuance of the letter in the year 2003. 8. In view of the aforesaid position, the petition is allowed with the direction to the respondents to take into consideration the approved military service of the petitioner for purposes of pay fixation and seniority with effect from the date when respondent No.4 was appointed. The petitioner shall be 5 entitled to all monetary benefits. The judgment be complied with latest by 31.12.2011 and the amount due and payable to the petitioner be paid to him before the said date failing which the State shall be liable to pay interest @ 12% p.a. from today till payment is made. No costs. June 29, 2011 ( Deepak Gupta ), PV Judge