IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5336/2008 Decided on:7.7.2010 _____________________________________________ Smt. Nirchhla Devi and others. …Petitioners. Versus Himachal Pradesh Road Transport Corporation and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioners : Ms. Kiran Dhiman, Advocate vice Mr. Onkar Jairath, Advocate. For the Respondents: Mr. Adarsh Sharma, Advocate. _____________________________________________________ Rajiv Sharma, Judge (oral). Deceased Mangat Ram (hereinafter referred to as ‘the original petitioner’ for convenience sake) has filed the present petition. He has died on 4.1.2001. His legal heirs have been ordered to be brought on record. Original petitioner was enrolled in the Indian Army on 17.5.1963. He was discharged from Indian Army in the month of November, 1981. He got his name registered with the Employment Exchange, Una. His name was sponsored by the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Employment Exchange, Una for the post of Driver in the respondent-corporation. He was appointed as a Driver on 16.12.1981 and was regularized on 13.8.1982. Ms. Kiran Dhiman has strenuously argued that original petitioner was entitled to get the benefit towards pay fixation and seniority as per rule 5 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 (hereinafter referred to as ‘the Demobilized Armed Forces Personnel Rules’) read with para 18.4.6 of the Hand Book on Personnel Matters Volume-I. Mr. Adarsh Sharma has vehemently argued that since the original petitioner had not given his option at the time of his interview; he is not entitled to the benefit of the Demobilized Armed Forces Personnel Rules towards pay fixation and seniority etc. I have heard the learned counsel for the parties and have perused the record carefully. It will be apt at this stage to reproduce para 18.4.6 of Chapter-XVIII of the Hand Book on Personnel Matters, which reads thus: “18.4.6. Consideration of an ex-serviceman for recruitment against un-reserved posts and benefits as a consequence thereof. An ex-serviceman can also be recruited to non- reserved posts in the normal course. At the time of such 3 appointment 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 filled accordingly. If however, he does not so opt, the benefits of pay and seniority under the Rules will not be available to him and the next reserved vacancy will be filled 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 and Technical services/posts and not from earlier dates.” A bare perusal of this para reveals that the employer has to seek the option of the ex-serviceman whether he would like to be considered against the vacancy reserved for ex- serviceman as and when arises. In the instant case, it is admitted case that the original petitioner has served the Indian Army for a period of 18 years. He made representation for getting benefit under para 18.4.6 on 14.10.1986. The same was rejected on 8.3.1988. There is no merit in the contention of Mr. Adarsh Sharma that the original petitioner has not given his option. It was, rather, obligatory on the part of respondent- corporation to seek option from the original petitioner being an ex-serviceman. It can safely be presumed that number of vacancies of the post of Driver had arisen in future, which were reserved for ex-servicemen. The original petitioner 4 though had been appointed against non-ex-serviceman post, still he was required to be considered as and when the post of Driver had become available as per para 18.4.6. The original petitioner has superannuated, however, his case has not been considered in accordance with law for giving him the benefit of rule 5 towards pay fixation and seniority. Respondent- corporation cannot take advantage of its own wrong by initially not seeking petitioner’s option and thereafter not considering his case as and when the post of Driver was available for ex- serviceman category. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondent-corporation is directed to consider the case of original petitioner for benefits towards pay fixation and seniority as per para 18.4.6 in case the post of Driver was available after the appointment of the original petitioner with effect from 16.12.1981 and to release the monetary benefits to the petitioners. Needful be done within a period of ten weeks from the date of production of certified copy by the petitioners. No costs. (Rajiv Sharma), Judge 7.7.2010 *awasthi*