IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.177/2000 Reserved on 3.6.2008 Decided on.22.7.2008 Pritam Chand. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Jagdish Bhalla, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes For the Petitioner : Mr. O.P. Thakur, Advocate. For the respondents: Mr. Radhey Shyam Gautam, Advocate for respondent No.1. Mr. Ankush Dass Sood, Additional Advocate General for respondents No.2 and 3. Rajiv Sharma, J. A challenge has been laid to the order passed by the learned Himachal Pradesh Administrative Tribunal in OA No. 546/1989 decided on 16.11.1999. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes 2 The brief facts necessary for the adjudication of this petition are that respondent No.1 was appointed Clerk in the Directorate of Health Services on 20th July, 1981. He made a representation in the month of November, 1982 to grant him the benefit of approved military service for a period of 7 years 192 days as per the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Services) Rules, 1972 (hereinafter referred as ‘the Rules’ for brevity sake). The representation made by him was rejected by the Directorate of Health Services on 20th September, 1983. It appears from the record that respondent No.1 was sponsored for the post of Statistical Assistant against the vacancy reserved for ex-serviceman by the Employment Exchange. He was offered appointment to the post of Statistical Assistant on 17.7.1984. Vide office order dated 13.12.1984, he was appointed as Statistical Assistant with effect from 27.7.1984. He made a representation to the Directorate of Agriculture in the month of June, 1985 seeking the benefits of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Services) Rules, 1972. It appears that a complaint was lodged against respondent No.1 pursuant to which a show cause notice was issued to him by the Directorate of Agriculture on 6 December, 1988 whereby note appended to Rule 3 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Services) Rules, 1972 was brought to his notice. He filed reply to the show cause notice on 15th December, 1988 and subsequently on 3rd April, 1989. In his reply dated 3rd April 1989, he made a 3 reference to the amendment carried on 1st August, 1985. It appears from the pleadings that respondent No.4 was also promoted to the post of Technical Assistant vide office order dated 30th January, 1988. The replies filed by respondent No.1 were not found satisfactory and ultimately he was reverted from the post of Technical Assistant to the post of Statistical Assistant vide order dated 24th October, 1989. He assailed the order dated 24th October, 1989 before the learned Tribunal by way of OA No. 596/1989. The learned Tribunal allowed the original application preferred by respondent No.1 and order dated 24th October, 1989 along with order dated 7th March, 1989 was quashed. The present petitioner was arrayed as respondent No.5 in original application No. 596/1989. The petitioner has assailed order dated 16.11.1999 passed by the learned Tribunal by way of present writ petition. Mr. O.P. Thakur, Advocate has strenuously argued that once respondent No.1 has been appointed in civil employment under the State Government on 20th July, 1981, he could not be appointed against the vacancy reserved for ex-serviceman on 27.7.1984. He has also strongly relied upon note appended to rule 3 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in H.P. State Non-Technical Services) Rules, 1972 added vide notification No. 11-76/71-GA-A (Vol.II) dated 29.6.1976/6.12.1980. He further contended that assuming that the appointment of respondent No.1 could be made validly under the Rules, he could not be granted benefit of entire approved military service for the simple reason that he had acquired the minimum qualification 4 required for the post of Statistical Assistant i.e. graduation in the month of April, 1983 and if at all the benefit of approved military service has to be given to him it should be with effect from April, 1983 and not before that. Mr. Radhey Shyam Gautam, Advocate has supported the order dated 16.11.1999 passed by the learned Tribunal. He has strongly relied upon two judgments rendered by the Punjab and Haryana High Court i.e. (i) Harbhajan Singh versus The State of Punjab and another, 1977 (2) SLR 180 and (ii) Raj Kumar Verma, H.C.S. versus The State of Haryana, 1981 (3) SLR 436. He also strongly relied upon the notification dated 1st August, 1985 whereby an amendment to rule 5 has been carried out. The stand of the learned Additional Advocate General has already been taken note of in order dated 3rd June, 2008 when the judgment was reserved. We have heard the learned counsel for the parties and perused the pleadings of the parties carefully. True it is that respondent No.1 was appointed initially as a Clerk in the Directorate of Health Services on 20th July, 1981. He was not appointed against a reserved post. His representation for granting him the benefit of approved military service was rejected by the competent authority on 20th September, 1983. His name was subsequently recommended by the Employment Exchange pursuant to which he was offered appointment to the post of Statistical Assistant with effect from 27.7.1984. Mr. O.P. Thakur, Advocate has 5 strenuously relied upon ‘note’ appended to rule 3 of the Rules, which reads thus: “Note: for the purpose of this rule an ex-serviceman or a Released Army Person shall cease to be so as soon as he joins the first civil employment under the State Government.” This question fell for consideration before the Full Bench of the Punjab and Haryana High Court in Harbhajan Singh versus The State of Punjab and another, 1977 (2) SLR 180. Their Lordships of the Punjab and Haryana High Court have held in pari materia provision existing in the State of Punjab whereby an incumbent who has accepted the civil appointment in the State could not be considered for appointment against the reserved post meant for ex-serviceman to be unreasonable. Their Lordships have held as under: "Amended Rule 3 (iii) (cc) (ii) (b), with which we are concerned, is as follows:- “Released Indian Armed Forces Personnel means... ....but does not include, Indian Armed Forces Personnel who before their appointment against vacancies reserved under these rules...... joined or join a Civil Service of the Union or a Civil Service of a State or a Civil post under the Union or a State after their release from the Armed Forces of the Union". Now, the Rule-making authority must have been aware that a competitive examination for appointment to the Service had been held under old rules and appointment were yet in the offing. Surely, the rule making authority did not intend to exclude from appointment candidates who were eligible under the old rules but became ineligible by reason of an amendment 6 of the rules made after the process of selection had almost reached a final stage. The amendment did not in any manner touch the qualifications of the candidates. Had the amended rule been in force from the beginning, persons in the position of the petitioner might not have accepted any employment and preferred to wait for selection and appointment to the Punjab Civil Service (Judicial Branch). Are they to be penalized "by barring their entry into the Punjab Civil Service (Judicial Branch) because they accepted employment at a time when acceptance of such employment was not a bar to appointment to the service. We don’t think that we will be justified in attributing such an unreasonable intention to the Rule-making authority. In our view, the only reasonable interpretation of the amended rule, consistent with the prevailing situation, is to hold that only those persons who having joined the service of the Union or the State or a post under the Union or the State previously continued to hold the post on the date of the coming into force of the rules, or who joined a post after the coming into force of the rules, are excluded from appointment to the Punjab Civil Service (Judicial Branch). The 'expression "joined or joins" must be given a reasonable interpretation in the context of the situation and we think that our interpretation does not strain the language or attributes unreasonableness to the Rule making authority. In that view, the petitioner cannot be said to be ineligible for appointment.” The Full Bench judgment rendered in Harbhajan Singh versus The State of Punjab and another, 1977 (2) SLR 180 was relied upon by a Division Bench of Punjab and Haryana High Court in Raj Kumar Verma, H.C.S. versus The State of Haryana, 1981 (3) SLR 436. Their Lordships have held as under: “The petitioner was entitled to the benefits of his military service in the fixation of his seniority in his 7 present service. Despite his representations, the authorities did not grant him the same. He was compelled to file writ petition No. 219 of 1978. On a concession made by the state that the representation of the petitioner was under the consideration of the Government, that petition was disposed of. The representation of the petitioner was rejected by a formal order dated the 18th November, 1978 on the ground that the petitioner had been given the benefit of military service towards seniority etc. Under Rule 4 when he was holding the post of District Probation Officer and he could not be given the same benefits once again in the cadre of Haryana, civil Branch. The petitioner filed Civil Writ Petition No. 3642 of 1978 and challenged this order. This writ petition was allowed by a Division Bench of this Court, on the 23rd of November, 1978. It was held that under the rules, the petitioner was entitled to the benefit of his military service even in the Haryana Civil Service (Executive Branch). Coilsequent1y, in compliance with the decision of this Court, the petitioner was given the benefit of his military service and his seniority was fixed at a proper place. The application for leave to appeal to the Hon'ble Subordinate Court filed by the State of Haryana was also dismissed. In the meantime, the State of Haryana promulgated the Punjab Government National Emergency (Concession) Haryana First Amendment Rules, 1979 (hereinafter called the amended rules). They were published on the 13th of August,] 979. In the said rules, after rule 4, rule 4-A has been added and is in the following terms :- "4-A. Benefit of military Service when admissible. The benefit of military service towards increments and seniority, mentioned in clauses (i) and (ii) of rule 4 shall be admissible, only on first appointment under the Government." The learned counsel for the petitioners have argued that Rule 4-A introduced by the Punjab 8 government National Emergency (Concession) Haryana 1st Amendment Rules, 1979 into the Punjab Government National Emergency (concession) Rules 1965, is violative of Articles 14 and 16 of the Constitution of India. They have argued that all the Ex-Emergency Officers form one class. They joined the military service during emergency in response to a call given by the Nation. After the danger of National Aggression receded, they were released from the military in a phased programme. They all fall in the category. They all served the Nation. They had joined the service on the inducement given by the different authorities. The rules were framed to provide concessions and benefits to these officers and men, who had served the nation, in the hour of need, though they were not interested in soldiery as a profession. If some of them after release had to accept some inferior jobs, they cannot be forced to stick to these jobs for all times to come, simply if some persons out of this class happened to join Civil posts they did not come to form a different class. They still remained Ex-Emergency Officers. There is no reasonable basis for treating them as a different class than the other Ex-Emergency Officers, who did not or could not join civil service. There is no intelligible differentia to form a classification. Furthermore, the object of the rules was to rehabilitate and to provide for the welfare of the Ex-Emergency Officers and other servicemen. This classification does not advance the object. It has no relationship with the object to be achieved. The classification rather defeats the object because it deprives a chunk of the same class of the benefits available to the other comparables. Clearly, there is no nexus between the classification and the object to be achieved. Rule 3(iii) (cc) (ii) (b) of the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies) in the Punjab Civil Service (Judicial Branch) (First Amendment) Rules, 1976, is similar to Rule 4-A and is in the following terms :- 9 "Released Indian Armed Forces Personnel means......... but does not include, Indian Armed Forces Personnel who before their appointment against vacancies reserved under these rules.........joined or join a Civil Service of the Union or a Civil Service of a State or a Civil Post under the Union or a State after their release from the Armed Forces of the Union." The vires of this Rule was challenged before a Full Bench of five Hon'ble Judges in Harbhajan Singh v. The State of Punjab and another, 1977 (2) S.L.R. 180. The Bench observed :- "In the view that we have taken, it is unnecessary for us to go into the question of the vires of the Rule 3(iii) (cc) (ii) (h). We would, however, like to add that the rule does appear to our mind to be unreasonable. These rules prescribing a quota of reservation for released Armed Forces Personnel are in force for a limited period only. If during that period a person is otherwise eligible for appointment, we see no justice in excluding him from appointment on the ground that he accepted some other employment in the mean-while. It looks as if a person belonging to the category of released Armed Forces Personnel accepts an inferior post he does so on pain of losing eligibility to a superior post. If no superior post is readily available immediately on his release from the Armed Forces he must wait till such post become available, and it may never become available. In the meanwhile, he is precluded from accepting an inferior post even to keep his body and soul together. Surely, that is not how we repay out debt to those that readily shed their blood for us." These observations fully apply to Rule 4-A introduced by the Haryana First Amendment Rules,' 1979. This rule is clearly violative of Articles 14 and '16 of the Constitution of India, and is liable to be struck down. Consequently, Writ Petitions Nos. 3875, 1541 and 3295 of 1979 'and 131 of 1980 are allowed. Notice dated the 8th/10th of October, 1979, issued to Raj Kumar 10 Verma, petitioner in Civil Writ Petition No. 3875 of 1979, is quashed.” Mr. O.P. Thakur, Advocate submitted that the Full Bench of Punjab and Haryana High Court though has treated the Rule as unreasonable but the same was not struck down. Mr. Radhey Shyam Guatam, Advocate on the other hand submitted that the Full Bench had considered the hardships being faced by the ex- servicemen on the basis of which the similar provision has been declared unreasonable and the ratio of the Full Bench is applicable to the present case also. The Division bench of Punjab and Haryana High Court after relying upon Harbhajan Singh versus The State of Punjab and another, 1977 (2) SLR 180 has held rule 4-A introduced with effect from 13th August, 1979 ultra vires Article 14 and 16 of the Constitution of India and was subsequently struck down. Similar is the position in the present case. Their Lordships of the Hon’ble Supreme Court had also occasion to go into the similar provision existing in U.P. Non- Technical (Class-II) Services (Reservation of Vacancies for Demobilized Officers) Rules, 1973 and U.P. Non-Technical (Class II/Group ‘B’) Services (Appointment of Demobilized Officers) Rules, 1980 in Narendra Nath Pandey and others versus State of U.P. and others (1988) 3 SCC 527. Their Lordships have held that at least three years should be allowed to a candidate after his discharge from the armed forces so as to enable him to prepare and avail himself of the opportunity of appearing at the competitive examination for his recruitment. Their Lordships have held as under: 11 “Rule 6 only provides that after the discharge of a candidate from the armed forces and his subsequent appointment in civil service on the basis of competitive examination, it will be assumed that he had joined the service at the second opportunity of competing for the recruitment. The second opportunity has been explained in the Explanation to Rule 6. It provides that the year of a candidate's second opportunity will be determined by the date of his birth in relation to the prescribed minimum age for competing for recruitment to the service. For example, if the minimum age for taking the competitive examination for recruitment is 21 years, the first opportunity of a candidate will be in the year he attains that age and the second opportunity will be in the next year, that is, at the age of 22 years. Under Rule 6, the recruitment of a war service candidate will be assumed to have been made in the year in which he had the second opportunity of competing for such recruitment. In other words, the seniority of such a candidate will be computed on the basis that he had joined the civil service in the year of his second opportunity of competing for the recruitment. It is true that Rule 6 does not provide for the period between demobilisation and recruitment of a war service candidate in the civil service. Nor does it forbid consideration of such period. It cannot, however, be denied that after the discharge from war service, there will be some lapse of time for the recruitment of a candidate in the Provincial Civil Service. Immediately after discharge, one cannot get himself recruited in the Provincial Civil Service. There is a question of competing in the examination. Rule 6 does not provide for any gap to be taken into consideration, yet it is apparent that some reasonable period has to be allowed to a candidate so as to enable him to avail himself of the opportunity of appearing at the competitive examination for his recruitment in the Provincial Civil Service. It cannot be gainsaid that to compete in the examination, a 12 candidate has to make preparation for that. Competitive examinations are generally difficult and, in our opinion, at least two years' time should be allowed to a candidate, after his discharge, for his preparation for the competitive examination and that will be his first opportunity. The second opportunity will arise in the next year, that is, in the third year of his discharge from the armed forces. In other words, he should be allowed three years for competing in the relevant examination for recruitment in the civil service. Even after he becomes successful, he is not recruited immediately. There is the question of availability of vacancies and posting. It is common knowledge that some time is taken for posting. On a proper construction of Rule 6, the period spent by a candidate for competing in the examination which, in our opinion, will not be more than three years, and the period of time taken for his recruitment or posting will also be taken into consideration for the purpose of computing the seniority of a war service candidate. Thus, if a candidate is discharged in the year 1968, he should be given three years' time to avail himself of the opportunity of competing in the examination. Suppose, he is successful in the examination held in 1971 and posted in 1973. In view of Rule 6, he would be deemed to have entered service at the second opportunity of competing for recruitment and the entire period from the date of assumed entry in the service up to his recruitment in 1973 shall betaken into account for the purpose of computing seniority and pay. If, however, a candidate does not avail himself of the opportunity within three years of his discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will not be taken into account for the purpose of computing the seniority. Rule 6 should be given a reasonable interpretation. We do not find any reason to interpret Rule 6 in a way which will be doing 13 injustice to the appellants who have been recruited under the Service Rules after competing successfully in the examination. We agree with the High Court that the 1973 Rules as also the 1980 Rules are quite legal and valid. We are, however, of the view that under Rule 6 of the 1973 Rules or Rule 5 of the 1980 Rules only a reasonable period, namely, the period of three years, required for taking the examination and the time taken for recruitment or posting, as discussed above, along with the period of war service, but no other period, will be taken into consideration for the purpose of computing the seniority and pay. The impugned seniority list prepared in 1976 and also that prepared subsequently in the year 1980 cannot be sustained, as they have been prepared by taking into consideration the entire period between the discharge and the recruitment without any reservation for computing the seniority.” In view law laid down by their Lordships of the Hon’ble Supreme Court in (1988) 3 SCC 527 (supra) and Full Bench of the Punjab and Haryana High Court in 1977 (2) SLR 180, we are of the opinion that respondent No.1 was eligible to be appointed as Statistical Assistant. It appears that note below sub rule (1) of Rule 3 as inserted on 29.6.1976 was deleted vide notification dated 1.8.1985 which reads thus: “The existing note below rule 3 (1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services Rules, 1972, (hereafter called the said rules), shall be deleted.” 14 We are of the opinion that note appended to rule 3 by way of amendment carried out with effect from 29.6.1976 was harsh and oppressive and has rightly been deleted vide amendment carried on 1.8.1985 as noticed above. Now, the Court has to consider the second contention of Mr. O.P. Thakur, that respondent No.1 has acquired the minimum qualification for the post of Statistical Assistant in the month of April, 1983 alone and he should be granted the benefit of approved military service with effect from April, 1983 onwards and not before that as has been done by the respondents. There is a considerable force in the submission of Mr. O.P. Thakur,. This plea was specifically raised before the learned Tribunal by way of supplementary affidavit, but the same has been over looked by the Tribunal. The question whether an ex-serviceman could be granted the benefit of approved military service when he was not eligible is no more res integra in view of the definitive pronouncement of law on the same issue by a Division Bench of this Court in Janeshwar Goyal and others versus Hon’ble High Court of H.P. and others, 1995 (2) S.L.C. 205. Their Lordships have held as under: “The upshot of the aforesaid discussion is that respondent No.3 cannot be given the benefit of authorized military service while determining his seniority vis-à-vis the petitioners and others in judicial service. The seniority of the judicial officers including the respondent No.3 will have to be determined in accordance with Rule 7 of 1973 Rules. The petitioners also submit that even otherwise the impugned orders are arbitrary, and violative of Articles 14 and 16 of the Constitution of India It is 15 particularly