IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.8018/2008 Decided on:29.6.2009 Madhusudan. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. Surinder Thakur, Advocate vice Mr. P.P. Chauhan, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner joined Indian Army on 6.5.1985. He served the Indian Army upto 5.4.1991. He applied and appeared for the Himachal Pradesh Administrative Service in the year 1981. He was selected to the post of Assistant Registrar (Cooperation) on 3.9.1992. He joined his duties on 21.4.1993. He served as Assistant Registrar (Cooperation) upto 29.1.1996. Thereafter he again appeared for the Himachal Pradesh Administrative Service in the year 1994. He was issued appointment letter 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 for the post of Himachal Police Service Class-I (Gazetted) on 18.11.1995. He joined his duties on 31.1.1996. Mr. Surinder Thakur, Advocate appearing vice counsel on behalf of the petitioner has strenuously argued that the respondents have not given his client the benefit of rule 4 of the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh Administrative Service) Rules, 1974 made applicable to the Himachal Pradesh Police Service vide notification 17.10.1981. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that since the petitioner has joined first civil employment against the reserved post as Assistant Registrar (Cooperation), he is not entitled to get the benefit of approved military service towards pay fixation, seniority in Himachal Pradesh Police Service cadre. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioner has served the Indian Army with effect from 6.5.1985 to 5.4.1991. He was selected for the post of Assistant Registrar (Cooperation). He joined his duties on 3.9.1992. He appeared in the Himachal Pradesh Administrative Service in the year 1994. He joined his duties pursuant to appointment dated 18.11.1995 on 31.1.1996 as Deputy Superintendent of Police. He made several representations for counting his approved military service for the purpose of pay fixation, seniority etc. His representation was rejected by the competent authority on 30.8.1999. The Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh Administrative Service) Rules, 1974, as amended from time to time, were made application to the Himachal Pradesh Police Services vide notification dated 17.10.1981. It will be 3 apposite at this stage to reproduce rule 4 of the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh Administrative Service) Rules, 1974, which reads thus: “4. Fixation of pay, seniority and retirement benefits.- (1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the rules shall count towards fixation of pay and seniority in the said service subject to the condition that :- (a) the inter-se seniority of the military personnel determined by the Himachal Pradesh Public Service Commission shall not be disturbed. (b) A military personnel appointed as a result of an earlier selection shall be senior to a military personnel appointed by direct recruitment in the year to which the former candidates are allotted; and (c) A military personnel already appointed in civil employment against a reserved post under any State/Central Government, on his subsequent appointment to the Himachal Pradesh Administrative Service on the basis of competitive examination shall not be eligible for the benefit of fixation of pay and seniority in the service (Himachal Pradesh Administrative Service) under sub-rule (1) of rule 4. (2) The period of military service rendered after attaining the minimum age mentioned in sub-rule (1) shall also count, towards pension, subject to the following conditions. (a) The persons concerned should not have earned pension under the rules applicable to such service except disability pensions; and 4 (b) Any bonus or gratuity received from the military authorities in respect of military service shall have to be refunded to the State Government.” A bare perusal of sub-rule (c) of rule 4 (1) reveals that a military personnel already appointed in civil employment against a reserved post under any State/Central Government, on his subsequent appointment to the Himachal Pradesh Administrative Service on the basis of competitive examination shall not be eligible for the benefit of fixation of pay and seniority in the service. The petitioner has availed the benefit of being ex- serviceman when he was appointed against the post reserved for ex- serviceman at the time of his appointment as Assistant Registrar (Cooperation). He has served as an Assistant Registrar with effect from 3.9.1992 to 29.1.1996. He was appointed as Deputy Superintendent of Police against the post reserved for ex-serviceman in the year 1996. This subsequent appointment of the petitioner is to be treated as second employment. Since he has availed the benefit of ex-serviceman at the time of his appointment as Assistant Registrar (Cooperation), he could not claim the benefit of seniority and pay fixation of approved military service in Himachal Pradesh Police Service cadre. The representation made by the petitioner has rightly been rejected by the competent authority on 30.8.1999. The Under Secretary (Cooperation) has also informed the Commissioner-cum-Secretary (Home) on 1.7.1996 that the name of the petitioner was recommended by the Himachal Pradesh Public Service Commission for the post of Assistant Registrar (Cooperation) against the reserved vacancy for the ex-serviceman. Accordingly, in view of the plain language of sub-rule (c) of rule 4 (1) of the Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh Administrative Service) Rules, 1974, 5 the petitioner is not eligible to get the benefit of pay fixation and seniority on his second civil employment. Accordingly, there is no merit in the petition and the same is dismissed. There shall, however, be no order as to costs. 29.6. 2009 (Rajiv Sharma ), J. *awasthi*