IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 175 of 2000 Judgment reserved on : 3.8.2010 Date of decision: 16.08. 2010 State of Himachal Pradesh and another ..Petitioners Vs Kalu Ram Sharma ..Respondent. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioners : Mr. J. K. Verma, Deputy Advocate General. For the Respondent : Mr. R.S.Gautam, Advocate. Justice Kuldip Singh, Judge The petitioners in this petition have prayed for quashing judgment dated 30.5.1997 passed by the erstwhile H.P. Administrative Tribunal in O.A. No. 1397 of 1990. 2. The facts, in brief, are that respondent had filed original application in the erstwhile Tribunal for a direction to the petitioners to allow the benefit of service rendered by him for the period 26.12.1963 to 26.6.1970 in the Army for the purpose of seniority, pay fixation and promotion, re-fix the initial pay of the respondent and to disburse the arrears of pay and allowances with interest throughout. 3. The further case of the respondent is that he joined the Indian Army as Signalman on 26.12.1963 at the age of 18 years and he was released/discharged from Army on 26.6. 1970 after rendering 6 years 6 months service. He was sponsored by the District Employment Exchange, Bilaspur and was appointed by petitioner No.2 as Clerk in the Department of Finance (T&A Organization) Government of Himachal - 2 - Pradesh. The respondent assumed the charge of the said post on 11.5.1971. On 27.1.1982 the petitioner was promoted as Assistant. On the post of Clerk, the petitioner was selected and appointed against unreserved vacancy. The respondent opted for vacancy reserved for ex- serviceman arising subsequently in order to avail the benefit of the Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972 (for short ‘ Rules’). The option of respondent was forwarded to petitioner No.2 vide Treasury Officer Bilaspur letter dated 23.8.1975. This option was exercised by the respondent in terms of Government of Himachal Pradesh General Administration Department letter dated 23.5.1975. 4. On the directions of petitioner No.2, the Treasury Officer, Bilaspur got verified the military service rendered by the respondent from Military authorities and same was sent to petitioner No.2. The petitioner No.2 vide letter dated 1.12.1975 observed that the respondent has rendered service in the military as Signalman which does not qualify him for fixation of his pay. The respondent submitted several representations for giving him the benefit of army service. He has also submitted that he was not specifically asked to exercise option under Sub Rule 2 (a) of Rule 19 of the CCS Pension Rules, 1972. But since clarification was asked by the petitioner No.2 regarding the option of respondent under Rule 19 of CCS Pension Rules, 1972, therefore, respondent sent his option specifically under CCS Pension Rules, 1972 alongwith his letter dated 19.11.1982. The petitioners decided the question of fixation of initial pay of the respondent vide order dated 25.8.1986. The respondent was not given the benefit of rules for pay fixation. The respondent represented against his wrongful pay fixation, the representation of the respondent was rejected by petitioner No.2 vide order dated 2.6.1990. The - 3 - respondent in these circumstances filed original application before the erstwhile Tribunal praying therein the benefit of rules for the purpose of pay fixation, seniority and promotion. 5. The original application was contested by the petitioners by filing reply. It was submitted that no option as required under the instructions circulated vide letter dated 23.5.1975 was exercised by the petitioner within stipulated period. The petitioner was informed vide office memo dated 1.12.1975 that he rendered the service in the army as Signalman which does not qualify him for fixation of pay on re- employment in civil department. As per Finance Department O.M. dated 2.8.1983 the fixation of pay of military personnel who are not covered under the rules is required to be fixed w.e.f. 1.6.1983 and no prior benefit in the fixation of pay is admissible under the said O.M. The representation of the respondent was considered and rejected as per standing instructions of the Government. It was contended that respondent is not entitled to any relief and prayer was made for dismissal of the O.A. 6. The Tribunal vide judgment dated 30.5.1997 after relying earlier decision of the Full Bench of the Tribunal noticed in the judgment held that the observations made in the Full Bench case squarely coveres the facts of the present case and allowed the O.A. The petitioners herein were directed to re-draw the seniority list and give benefit of approved military service to the respondent with all consequences. In these circumstances, the petitioners have filed the present petition on the grounds that the O.A. filed before the Tribunal was barred by delay and laches. The persons likely to be affected by giving seniority to the petitioner were not impleaded as parties. The respondent joined the civil - 4 - post on 11.5.1971 against General vacancy when there was no reservation for ex-serviceman and rules came into force on 28.3.1972. 7. The pay of the respondent was fixed vide office order dated 25.8.1986 vide Annexure P-12. The representation of the petitioner for counting his military service was rejected vide office memo dated 2.6.1990 of the Deputy Secretary Finance-cum- Director, Treasuries and Accounts Organisation to the Govt. of Himachal Pradesh. The original application was prepared on 7.10.1990 and thereafter it was filed. In these circumstances, it cannot be said that respondent has raised stale claim and original application was barred by delay and laches. The respondent has claimed the benefit of rules for purpose of pay fixation, seniority and promotion. He has not prayed for specific placement against any particular person. The claim of the petitioner for giving him benefit of rules cannot be denied on the ground that the persons likely to be affected by such benefit were not impleaded by him in the original application. Therefore, the contention of delay and laches and impleadment of necessary parties raised on behalf of the petitioners is rejected. 8. The next contention of the petitioners is that the rules came into force on 28.3.1972 whereas respondent joined civil employment on 11.5.1971 after discharge from army, therefore, he is not entitled to the benefit of the rules. The respondent was appointed against unreserved post. He exercised his option for reserved post meant for ex-serviceman in terms of the Government of Himachal Pradesh General Administration Department letter dated 23.5.1975. The petitioner joined the army on 26.12.1963. It is not the case of the petitioners that respondent had not joined the army during the period of emergency. 9. Rule 5 (1) is as follows:- “5. Seniority and pay:- - 5 - (1) 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 reserved vacancies under the relevant rules, shall count towards fixation of pay and seniority in that service. (This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under the State/Central Govt. against reserved posts).” 10. Rule 6 provides overriding effect of the Rules. Sub Rule (2) of Rule 1 provides that these Rules shall come into force with effect from 28.3.1972. The respondent in the O.A. has prayed for giving him benefit of service rendered by him in army 26.12.1963 to 26.6.1970. He has not prayed that in civil employment this benefit is to be given to him from specific date. The respondent had exercised his option for reserved post meant for ex-serviceman in accordance with H.P. Government General Administration Department letter dated 23.5.1975. 11. The Tribunal in the facts and circumstances of the case has rightly held that respondent is entitled to the benefit of Rules for the purposes of pay fixation and seniority etc. The petitioners have failed to point out error of law in the impugned judgment. There is no merit in the petition which is accordingly dismissed. The pending application, if any, also stands disposed of. (Justice Kurian Joseph), Chief Justice. August 16, 2010 (Justice Kuldip Singh), (GR) Judge.