IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP. 2111 of 2009. Date of Decision: 6.4.2011. _______________________________________________ Kamlesh Chand and others. ….petitioners. Versus. State of H.P. and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner :Mr.Virender Singh, Advocate. For Respondent-1 to 4. :Mr.P.K.Sharma, Addl. Advocate General with Ms.Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioners were ex-servicemen who have been appointed to the post of Driver-cum-Pump Operator. They claim parity in service conditions with the other incumbents who have appointed pursuant to the requisition Annexure:P-2 by which 47 posts of Driver- cum-Pump Operator were advertised. It is undisputed before me that the names against quota of ex-servicemen were required for filling up the quota in these 47 posts which were governed by the rules known as Promotion Rules for the post of Driver-cum-Pump Operator Class- Whether reporters of the Local papers are allowed to see the judgment?yes. 2 III(Non-Gazetted) Non-Ministerial Services, H.P. At the interviews which were held on January, 2007, the name of the petitioners was not sponsored but one Udho Ram ex-serviceman was appointed by virtue of his selection vide Annexure:P-5 dated 16th March, 2007. Immediately thereafter, by letter dated 16th May, 2007, a communication was addressed by the Additional Director General of Police-cum-Director of Fire Services calling upon the Director, Selection Commission-cum-sub Regional Employment Officer, Ex-serviceman Cell, Hamirpur to sponsor the names of other ex-servicemen who were eligible to be appointed as such. This was required to be done within a period of seven days. Pursuant thereto, the names of 21 ex- serviceman were sponsored (including the petitioners) who underwent the selection process. At this interview/selection, all the petitioners were selected and appointments were issued to them. Pursuant to the request made by respondent No.3, the Special Secretary (Home) granted its approval to fill up these posts entirely on contract basis. The letter reads: “No. Home-B(G)3-4/2004 (Fire) Govt. of Himachal Pradesh Department of Home. From The Principal Secretary (Home) to the Govt. of Himachal Pradesh. To The Director (Fire Services) Himachal Pradesh, Shimla-171002. Dated: Shimla-2 the 13.6.2008. Subject: Regarding Filling up of vacant posts of Driver- cum-pump operators against ex-serviceman quota in H.P. Fire Services Department. Sir, 3 I am directed to refer to your letter No. Hom(FS)(HQ)(B)(2)6/03-404 dated 29.01.2008 on the subject cited above and to convey the approval of the Government to appoint the selected candidates (belonging to ex-serviceman category) against the vacant posts of Driver-cum-pump operators (falling in ex-servicemen quota) (Class-III Non- Gazetted on contract basis in H.P. Fire Services Department during the current financial year. Sd/- Special Secretary(Home)to the Govt. of Himachal Pradesh.” 2. This is the starting point for the grievance of the petitioners. Their case is that since 47 posts were required to be filled in, the petitioners’ names have been sponsored by the Selection Commission-cum-sub Regional Employment Officer, Ex-serviceman Cell, Hamirpur, they and the other persons had been appointed pursuant to a common advertisement in accordance with rules noticed above, there can be no discrimination in their service conditions and appointment cannot be altered to one on contract basis. Learned counsel submits that one of the ex-servicemen Sh. Udho Ram has been given a regular pay scale and also tenure of service and there can be no discrimination in so far as the petitioners are concerned. 3. Learned Additional Advocate General submits that though the petitioners were subjected to a common interview and test, but because of the intervening code of conduct which was promulgated because of the impending elections, the policy was changed and subsequently other appointments were made only on contractual basis. He relies upon Annexure:R4 contents whereof have been reproduced herein above. 4. I have heard learned counsel for the parties. 4 5. I cannot persuade myself to hold that the petitioners can be subjected any discrimination more so in view of the fact that 47 posts were advertised and the petitioners as also the other persons appointed against these posts were subjected to a common interview/test. Merely because the code of conduct intervenes in between, that cannot change the conditions of service in so far as the petitioners are concerned. Learned counsel places reliance on the judgment of the Supreme Court in Arjun Singh Rathore and others Vs. B.N.Chaturvedi and others (2007) 11 S.C.C 60, to urge that where vacancies arise in a particular department it is the rules which prevail at the time when the vacancies occur that have to be applied. This is the settled proposition of law. Learned counsel also places reliance on decision in Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others, (1983) 3 SCC 284, to urge that the vacancies which exist prior to the amendment of the rules are required to be filled up by resort to the un-amended rules. There is no dispute so far as this proposition is concerned. 6. The only distinguishing factor which has been pointed out by learned Additional Advocate General is that the appointments could not be made prior in the promulgation of the code of conduct and in these circumstances, it is the rules in vogue after the code of conduct was lifted that would apply. I cannot accept this submission for the reason that the persons working in the same cadre having been subjected to the same interview and test cannot be discriminated against. 7. In these circumstances, it is directed that the petitioners shall be granted the same benefits including tenure, salary and other 5 perquisite as having been granted to other Driver-cum-pump operators who have been selected pursuant to the interviews and selection vide Annexue:P-3. Petition allowed accordingly. (Dev Darshan Sud), Judge. April 6, 2011(R)