IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.177 of 2007 (O&M) Date of decision: 28.7.2009 Satwant Singh and others -----Appellants Vs. R.S.Randhawa and others Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. R.N.Raina, Advocate for the appellants in LPA No.177 of 2007. Mr. R.K.Chopra, Sr.Advocate with Mr. Sanjiv Sharma, Advocate for the appellants in LPA No.178 of 2007. Mr. Rajiv Atma Ram, Sr.Advocate with Mr. Daman Dhir, Advocate for respondent No.47 in LPA Nos.211 and 213 of 2007. Mr. ADS Jattana, Advocate for appellant in LPA Nos.16, 19 and 20 of 2008. Mr. Sanjeev Sharma, Sr.Advocate with Mr. Vikram Sharda, Advocate for respondents in LPA No.177, 178, 212, 218 of 2007, 16,19 and 20 of 2008. Mr.G.S.Sandhawalia, Advocate for respondent No.5 in LPA No.211 of 2007. Mr. PK Longia, Advocate for respondent No.1 in LPA Nos.177 and 178 of 2007. Mr. Suvir Sehgal, Addl.A.G.Punjab for appellant- State in LPA Nos.211, 212, 213 and 218 of 2007 and for respondent No.2-State in LPA Nos.177 and 178 of 2007, 16, 19 and 20 of 2008. LPA No.177 of 2007 (O&M) Adarsh Kumar Goel,J. 1. This order will dispose of Letters Patent Appeal Nos. 177, 178, 211 to 213, 218 of 2007 and LPA Nos.16, 19 and 20 of 2008, as all the appeals have arisen from the same judgment of learned Single Judge. Four appeals have been preferred by the State of Punjab, as order of learned Single Judge was passed in four petitions. Four appeals have been filed by Satwant Singh and others and one appeal has been filed by N.K.Wadhawan and others, who were affected by the impugned judgment. 2. The writ petitioners were ex-servicemen. Advertisement dated 1.5.1982 was issued by the Punjab Public Service Commission notifying vacancies in Punjab Civil Services (Executive Branch) and allied Services. 13 posts were reserved for ex-servicemen. The writ petitioners were selected against the posts reserved for ex-servicemen. 3. The issue of reservation for ex-servicemen was earlier governed by Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Service) (Executive Branch) Rules, 1972), which were replaced by Punjab Recruitment of Ex-Servicemen Rules, 2 LPA No.177 of 2007 (O&M) 1982 w.e.f 12.2.1982. In 1982 rules, the extent of reservation was reduced and weightage of military service for seniority was done away with but definition of ‘ex- servicemen’ was enlarged. 4. Vide judgment of this Court dated 8.4.1986 in CWP No.3236 of 1985, Ishar Singh and another v. The State of Punjab and others, the question whether reservation for the ex-servicemen was to be calculated on the basis of 1972 rules or on the basis of 1982 rules, was considered, apart from other issues. It was held that vacancies which occurred prior to 12.2.1982 (the date of enforcement of 1982 rules) would be governed by the 1972 rules for calculating the vacancies reserved for ex- servicemen. The relevant observations are as under:- “…The carry forward rule under the 1972 rules as well as the 1982 rules till before amendment of 1984 was for a period of four years and it was amended by the 1984 amendment, which came into effect from 30th April, 1984. Therefore, when the advertisement was made on 1.5.1982 for recruitment, the left over vacancies from 1979 upto 1982 had to be taken into consideration and similarly the vacancies which 3 LPA No.177 of 2007 (O&M) occurred thereafter would also be taken note of for providing the relevant quota of 20 percent or 15 percent, as the case may be. As noted above, on the basis of the posts would be made available to the category of ex-servicemen. The vacancies which occurred on or after 30th April, 1984 would be carried forward on the basis of the 1984 amended rules, whereas earlier unfilled vacancies would be carried forward under the 1972 and 1982 un-amended rules.” 5. In the earlier part, reliance was placed on judgment of the Hon’ble Supreme Court in Y.V.Rangaiah and others v. J.Sreenivasa Rao and others, AIR 1983 SC 852 and DB judgment of this Court in Krishan Lal Bhatia v. The State of Punjab, 1985(2) SLR 50. 6. Noticing the change in the definition of ‘ex- serviceman’, it was observed that the definition of ‘ex- serviceman’ as given in the 1982 rules will apply and not the one given in the 1972 rules. Accordingly, benefit of 20% reservation was given. 7. Writ petitions giving rise to the impugned order were filed with prayer to quash the seniority list as the said seniority list failed to take into account the benefit of 4 LPA No.177 of 2007 (O&M) military service by applying 1982 rules, which benefit the petitioners were entitled to in terms of 1972 rules. 8. The writ petitions were opposed by the State as well as the appellants who were higher in seniority to the writ petitioners, on the ground that seniority had to be governed by the service rules in force at the time of appointment, namely, Punjab Civil Service (Executive Branch) Rules, 1976 (hereinafter called the 1976 Rules) (Para 4) read with 1982 rules as applicable to ex- servicemen. It was further submitted that even though, reservation had been given as per 1972 rules, in consonance with the judgment of the Hon’ble Supreme Court in Y.V.Rangaiah (supra), the position of seniority stood on different footing. 9. Learned Single Judge allowed the writ petition with the following observations:- “…In the present case, the appointment is under 1972 rules.. respondents desire to treat the petitioners having been appointed under 1982 for the reason that actual appointment letters were issued after 1982 rules had come into force, has been examined on judicial side by this Court in earlier lis 5 LPA No.177 of 2007 (O&M) between the parties (Annexure P/2) and claim made by the petitioners therein was upheld and it was directed that for the purpose of their selection, the 1972 rules shall be applicable though the issue at that time was merely of quota to be provided to the petitioners but rules cannot be dissected so as give a meaning to the judgment holding that it is only for the purpose of quota that the 1972 rules were made applicable and it or anything else. It cannot be inferred that it was only one provision of the Rule that was made applicable for the purpose of selection of the petitioners in the judgment in their favour in the manner sought to be suggested by the respondents. In fact, in my opinion, effect of the judgment (Annexure P/2) which has been upheld upto Hon’ble the Supreme Court is that petitioners were deemed to have been appointed under the 1972 rules. Accordingly, conditions of service of petitioners will have to be determined under the 1972 rules as there is no rule to the contrary.” 10. We have heard learned counsel for the parties and perused the record. 6 LPA No.177 of 2007 (O&M) 11. Learned counsel for the appellants submitted that there being no provision for weightage of military service for purposes of seniority in the rules, such weightage could not be taken into account on the basis of 1972 rules merely because the said rules were applied for the purpose of calculating extent of reservation. The basis of the earlier judgment in Ishar Singh (supra) for applying the 1972 rules was that vacancies had arisen prior to coming into force of the 1982 rules and there was a provision for carry forward and thus, the carried forward vacancies were governed by the 1972 rules for purposes of reservation. It did not follow that the 1972 rules continued to apply even after their repeal, ignoring the 1982 rules. The two concepts – availability of reserved vacancies at a given point of time and determination of seniority were independent concepts. The reason in the impugned judgment that rule could not be dissected for purposes of seniority, was not valid. 12. Learned counsel for the writ petitioners supported the impugned judgment. Reliance has been placed on Single Bench judgment of this Court in Dr. 7 LPA No.177 of 2007 (O&M) Balraj Bhardwaj v. State of Punjab and another, 2004 (3) SLR 765, which has been affirmed by Division Bench of this Court in LPA No.168 of 2004 (State of Punjab and others v. Dr.Balbir Bhardwaj), vide judgment dated 29.1.2007. It was further submitted that the earlier judgment in Ishar Singh (supra) should be treated as inter partes judgment on the issue of applicability of 1972 rules and the said judgment having been upheld upto the Hon’ble Supreme Court, no different view could be taken. 13. The question for consideration is whether the writ petitioners, having been appointed against vacancies reserved for ex-servicemen, can claim weightage of Army service for purposes of seniority when there is no provision for such weightage in 1982 rules, in force, at the time of their appointment. 14. In our view, answer has to be in the negative. Mere fact that in earlier judgment in Ishar Singh (supra), 1972 rules were held to be applicable for reservation for vacancies which had been carried forward and were available at the time of advertisement, could not be conclusive of weightage for Army service for seniority. 8 LPA No.177 of 2007 (O&M) 1972 rules stood repealed by 1982 rules which were in force on the date of appointment of writ petitioners. The State, thus, rightly held that seniority will depend on length of service in the cadre. As regards judgment in Ishar Singh (supra), neither the issue of seniority was involved or considered therein nor the said issue could be held to be connected to the issue of calculation of reserved vacancies. The earlier judgment cannot, thus, be held to be res judicata on the question of weightage for seniority. 15. Learned counsel for the writ petitioners submitted that the repeal of 1972 rules was with a saving clause that the 1972 rules will be deemed to have continued. Rule 9(3) of the 1982 rules reads as under:- “(3) Nothing in these rules shall be construed as depriving any person to whom these rules apply of any right which had accrued to him under the rules, notifications or orders in force immediately before the commencement of these rules.” 16. The said saving clause saved any right which accrued under the rules which were in force before commencement of 1982 rules. There is nothing to show that any right of weightage for Army service being 9 LPA No.177 of 2007 (O&M) counted for seniority had already accrued before the writ petitioners joined service. The said saving clause, thus, is of no avail to the writ petitioners. 17. As regards judgment of this Court in Dr.Balraj Bhardwaj (supra), the reservation as well as advertisement was under the Punjab State Technical (Medical and Engineering) Service Rules, 1978. Thereafter, the rules were repealed. It was held that the process of selection having been initiated under the 1978 rules, appointment for all purposes will be governed by the said rules as no other rules were in force. The judgment is clearly distinguishable as it was not a case where any other set of rules had become available. In the present case, 1982 rules had come into force which had done away with the benefit of weightage of Army service for seniority. In the DB judgment in Dr. Balbir Bhardwaj (supra), it was observed:- “A query addressed to learned counsel for the appellant that if the respondent was not appointed under the 1978 rules, then under what rules, was he appointed, did not draw any response. Except for a bald statement in 10 LPA No.177 of 2007 (O&M) paragraph No.9 of the written statement, filed by the appellant to the effect that the respondent was appointed against a reserved post for released Indian armed Forces Personnel, under the provisions of prevailing instructions issued by the State Government, no instructions, rules or regulations, other than the 1978 rules, were brought to the notice of the learned Single Judge or have been placed before this Court. The so called “prevailing instructions” have failed to see the light of day. As the respondent was admittedly appointed against a post reserved for armed Forces Personnel’s in accordance with the 1978 rules, the learned single Judge correctly returned a finding that the respondent was deemed to have been appointed under the 1978 rules.” 18. The above observations do not apply to the present case. The 1982 rules were fully in force except for the carried forward vacancies, which were held to be governed by 1972 rules. 19. In view of above, the impugned judgment cannot be sustained. The appeals are allowed. The judgment of 11 LPA No.177 of 2007 (O&M) learned Single Judge is set aside. The writ petitions are dismissed. (Adarsh Kumar Goel) Judge July 28, 2009 (Daya Chaudhary) ‘gs’ Judge 12