IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8256/2008 Decided on:30.11.2010 _____________________________________________ Ramesh Chand. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ajay Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General with Mr. R.P. Singh, Asstt. A.G. ____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner joined Indian Army in the year 1965. He was discharged on 30.5.1989. He got his name registered with Ex-servicemen Cell, Hamirpur and Employment Exchange. Himachal Pradesh Public Service Commission had also issued advertisement for filling up the post of Senior Laboratory Technician in the respondent-Department in the pay scale of Rs. 1410-2080. Petitioner also applied and was found suitable and his name was recommended in the year 1992. However, he was issued appointment letter on 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 5.4.1994 pursuant to which he joined his duties as Senior Laboratory Technician on 16.4.1994. 2. Mr. Ajay Sharma has strenuously argued that his client ought to hve been considered for appointment against the post reserved for ex-serviceman. According to him, even at the time when the recommendations were made by the Himachal Pradesh Public Service Commission, four posts of ex-serviceman category were lying vacant in the respondent- Department. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that since the petitioner had already been appointed against the post meant for general category as Senior Laboratory Technician, he cannot be given the benefits of the Demobilized Armed Forces Personal (Reservation of Vacancies in Himachal Pradesh State Non Technical Services) Rules, 1972. 4. I have heard the learned counsel for the parties and have perused the pleadings. 5. It is not in dispute that the petitioner is an ex- serviceman. He has got his name registered with the Ex- serviceman Cell as well as Employment Exchange. Since his name was not sponsored by the Ex-servicemen Cell, he 3 submitted application to the Himachal Pradesh Public Service Commission for considering his candidature against the general category for the post of Senior Laboratory Technician. He was found suitable by the Himachal Pradesh Public Service Commission, which led to his appointment on 5.4.1994 as Senior Laboratory Technician in the respondent- Department. It has come on record that the Director, Sainik Welfare-cum-Ex-servicemen Cell nominated the names of four candidates, including the petitioner for appointment to the post of Senior Laboratory Technician on 27.5.1994. Thereafter, the petitioner and three more similarly situate ex-servicemen, namely, Amar Nath, Hari Singh and Dev Raj were requested to appear before the Director, Health Services on 30.8.1994 with the requisite testimonials/certificates. Case of the respondent-State is that only Sh. Dev Raj appeared before the Director, Health Services on 30.8.1994 and he was offered appointment as Senior Laboratory Technician against the post reserved for ex-serviceman. 6. Petitioner has also made representation seeking benefits of approved military service towards pay fixation and seniority etc. Case of the petitioner was rejected on 4 1.6.1999. State Government had issued instructions for consideration of ex-servicemen for recruitment against unreserved posts and benefits as a consequence thereof, as per para 18.4.6 contained in Hand Book on Personnel Matters Vol-1 (Second Edition). A bare perusal of these instructions makes it abundantly clear that an ex-serviceman can also be recruited to non-reserved posts in the normal course and at the time of such appointment, he is 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. is to be made available under the Rules when the vacancy in question arises and the reserved vacancy will be deemed to have been filled accordingly. 7. In the instant case, respondents throughout knew that four posts of ex-servicemen of Senior Laboratory Technicians were lying vacant in the Directorate of Health Services. Petitioner was not given any option at the time when he joined on 16.4.1994 as Senior Laboratory Technician as per para 18.4.6, as noticed hereinabove. In case petitioner had been asked to exercise his option, he could get the benefits of The Demobilized Armed Forces 5 Personal (Reservation of Vacancies in Himachal Pradesh State Non Technical Services) Rules, 1972. It is also not in dispute that four posts were lying vacant in the category of ex-servicemen of Senior Laboratory Technicians for which the process had been commenced by the Ex-servicemen Cell vide Annexure R-2/II dated 27.5.1994. Since the petitioner had already been appointed as Senior Laboratory Technician on 16.4.1994, his option was required to be obtained and he was required to be considered from the date his juniors were considered and appointed as per para 18.4.6 on the basis of the nomination made by the Directorate of Sainik Welfare. 8. In view of the observations made hereinabove, the petition is allowed. Annexure R-2/IV dated 1.6.1999 is quashed and set aside. Respondents are directed to consider the case of petitioner as per para 18.4.6 by seeking his option to consider him against the post which became available after his appointment as Senior Laboratory Technician on 16.4.1994 for category of ex-servicemen. In the eventuality of the petitioner’s exercising the option to be considered against the post of ex-servicemen, he will be entitled to seniority, pay fixation etc. as per the Demobilized Armed Forces Personal (Reservation of Vacancies in 6 Himachal Pradesh State Non Technical Services) Rules, 1972. Needful be done within a period of two months from the date of production of certified copy of this judgment by the petitioner. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 30.11.2010 *awasthi*