IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 690 of 2004 Decided on: December 22, 2008. Smt. Kamlesh Kumari & Ors. Petitioners Vs. State of H.P. & Ors. Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners : Mr. Surinder Sharma, Advocate. For the Respondents : Mr. P.K. Sharma, Addl. A.G. No. 1 & 2 with Mr. P.M. Negi, Dy. A.G. Per Surjit Singh, Judge (oral) Petitioner is aggrieved by the order dated 6.8.2004, of the H.P. State Administrative Tribunal (now defunct), whereby petitioner’s O.A. seeking the quashing of order dated 28th January, 1994, Annexure P-T, whereby the seniority and monetary benefits given to him, on account of his being Ex.- serviceman were withdrawn and passed on to respondent Radha Ballabh Bhatt, respondent No. 3 (now, dead and represented by his LRs respondents No. 3 to 6), stands dismissed. 2. We may first notice the facts relevant for disposal of the writ petition. There is a common cadre of Surveyor, Foreman and Mill Wright in the department of Technical Whether reporters of the local papers may be allowed to see the judgment? …2… Education. The cadre consists of 35 posts. Both, the writ petitioner (since deceased and represented by his LRs) and Radha Ballabh Bhatt, deceased respondent No. 3 were Ex- servicemen. In the year 1982, Radha Ballabh Bhatt, after his discharge from defence service, was appointed as Surveyor in the Technical Education department of the State, in the aforesaid cadre. In the year 1986, petitioner P.L. Gupta was appointed, as Foreman in the aforesaid cadre, after his discharge from Indian Navy. Both of them were appointed against unreserved posts. When Radha Ballabh Bhatt was appointed, there were no rules for reservation of Ex-servicemen in technical posts. Rules for reservation of Ex-servicemen in technical posts in the State of Himachal Pradesh came into force w.e.f. 3.5.1983, vide Annexure-PB. It appears that after the appointment of the petitioner, a vacancy reserved for Ex-servicemen, became available. Government of Himachal Pradesh issued a notification, Annexure-PJ, on 11.12.1987, that instructions contained in letter dated 23rd May 1975 pertaining to reservation for Ex-servicemen in non-technical posts, were to be applied in the case of Ex-servicemen appointed on technical posts, subsequent to the coming into force of Ex-servicemen (Reservation of vacancies in the Himachal Pradesh Technical Services) Rules, 1985, which were enforced from 3.5.1983. 3. As per this Annexure-PJ, if a vacancy meant for Ex- servicemen became available, subsequent to the appointment of an Ex-serviceman against unreserved post, such an Ex- …3… serviceman was to be given an option to be treated as appointee against the post meant for ex-servicemen, provided such Ex- serviceman had been appointed after the commencement of Ex- servicemen (Reservation of vacancies in the Himachal Pradesh Technical Services) Rules, 1985. It appears that a vacancy reserved for Ex-servicemen became available after the appointment of petitioner P.L. Gupta and he was given the benefit of option. He exercised the option, to be treated as appointee against reserved vacancy. His option was accepted and he was given the benefit of approved Military service and also his pay was increased by giving him as many increments as the number of years of approved Military service and also his seniority was upgraded. He was shown at serial No. 6 in the seniority list, whereas, respondent Radha Ballabh Bhatt was shown at serial No. 15. Seniority list is enclosure to Annexure- PQ. 4. Respondent Radha Ballabh Bhatt felt aggrieved by this order on the ground that he also being an Ex-serviceman and senior to P.L. Gupta, was entitled to the benefits, which had been given to petitioner Shri Gupta. He filed an O.A., which was sent to Secretary, Technical Education with the direction that same be treated as representation and decided according to law. Secretary, Technical Education allowed the representation and directed that benefit, which had been given to the petitioner, be given to respondent Radha Ballabh Bhatt. Consequently, the monetary benefits given to the petitioner were ordered to be …4… withdrawn. He was also placed below Radha Ballabh Bhatt in seniority. Petitioner then filed an O.A. seeking the reversal of the order of Secretary, Technical Education, Annexure-PT. State of H.P., which was impleaded as respondent, took the plea that respondent Radha Ballabh Bhatt, having been appointed earlier in point of time and he also being an Ex-serviceman had rightly been given the benefit of Military service by withdrawing such benefit from the petitioner. Respondent Radha Ballabh Bhatt also took the same plea. Tribunal dismissed the O.A. filed by the petitioner without taking into account the instructions of the Government contained in Annexure-PJ, referred to hereinabove. 5. We have heard the learned counsel for the petitioner as also the Learned Additional Advocate General. Admitted facts are that Ex-servicemen (Reservation of Vacancies in Himachal Pradesh State Technical Services) Rules, 1985 came into force w.e.f. 3.5.1983. Radha Ballabh Bhatt, respondent No. 3, was appointed before the enforcement of the aforesaid rules. Petitioner was appointed in the year 1983, or say after the coming into force of the said rules. Both the petitioner and respondent were appointed against unreserved vacancies. Annexure-PJ, which was issued on 11.12.1987, provided that if after the appointment of an Ex-serviceman against an unreserved vacancy, vacancy reserved for Ex-servicemen arises, the Ex-serviceman already appointed against unreserved post, is to be given the benefit of option to accept the subsequent …5… reserved vacancy. The instructions further say that the benefit of this option is to be given only to those incumbents, who are appointed after the enforcement of the Ex-servicemen (Reservation of Vacancies in Himachal Pradesh State Technical Services) Rules, 1985. Radha Ballabh Bhatt having been appointed prior to the enforcement of the rules, was thus not entitled to the benefit of option. It was only the deceased petitioner P.L. Gupta, who was to be given the benefit of this option, as he was appointed in the year 1986, or say after the enforcement of the aforesaid rules. Therefore, the benefit, which had initially been given to him, and rightly so, could not have been withdrawn, vide Annexure-PT, whereby the representation of respondent no. 3 was allowed. Hence, we allow the writ petition, set aside the impugned order of the Tribunal and restore the benefits of Military service, which were sanctioned and granted to said Shri P.L. Gupta, but were withdrawn on account of acceptance of the representation of respondent No. 3 vide Annexure-PT. No order as to costs. ( R.B. Misra ), J. December 22, 2008(vs) ( Surjit Singh ), J.