IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P.-T- No. 2899 of 2008. Reserved on: 09.05.2011. Decided on: 20.05.2011. _____________________________________________________ Lahori Singh. …Petitioner. -Versus- The State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. V.D. Khidta, Advocate. For the respondents. : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner joined the Indian Army in 1974. He was discharged in 1997. Thereafter, he joined as a Physical Education Teacher in the respondent-department on 30.07.1998 against the General category. Since the petitioner was an Ex- serviceman, he submitted an application on 12th October, 1998, exercising his option as per the notification dated 23rd May, 1975 to be considered against any of the vacancies, which were likely to become available under the category of Ex-servicemen subsequently. The respondent-department has not taken any decision on the option exercised by the petitioner. However, his salary was fixed as per Annexure A-13 w.e.f. 01.01.2001 instead of 30.07.1998, as prayed by the petitioner. 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - 2. Mr. V.D. Khidta, learned counsel for the petitioner has strenuously argued that action of the respondents of fixing the pay of the petitioner w.e.f. 01.01.2001 instead of 30.07.1998 is wrong, illegal, arbitrary and, thus, violative of Articles 14 and 16 of the Constitution of India. According to him, his client has exercised his option on 12.10.1998 as per instructions dated 23rd May, 1975 and the vacancy was also available under the category of Ex-servicemen. In other words, his plea is that the petitioner was required to be considered against the post of Ex- servicemen when the vacancy became available against the category of Ex-servicemen in order to give him the benefits under the Demobilised Armed Forces Personnel (Reservation of Vacancy in H.P. State Non-Technical Services) Rules, 1972. 3. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that no vacancy was available between 30.10.1999 till 01.01.2001. In other words, the date of fixation of the petitioner has been justified w.e.f. 01.01.2001. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner is an Ex-serviceman. He has been appointed against the General category. However, it is evident from Annexure A-2, dated 23rd May, 1975 that when a released army personnel has been appointed against a non-reserved vacancy, he should be given at first instance an option to accept a reserved vacancy even if it occurs subsequent to his appointment to give him the benefit of seniority etc.. In the instant case, the petitioner has already exercised his option on 12.10.1998. However, strangely, it has come in the reply that - 3 - option exercised by the petitioner on 12.10.1998 has been received in the office of respondent No. 3 on 30.10.1999. It is not believable. It would not have taken the option to travel from 12.10.1998 to 30.10.1999. However, fact of the matter is that the petitioner has exercised his option. 6. Now, the Court will advert to the issue whether the vacancy was available under category of Ex-servicemen or not. Mr. V.D. Khidta, learned counsel for the petitioner has drawn the attention of the Court to Annexure A-15, dated 15.05.2003. It is evident from the contents of this letter that one Shri Roshan Lal has been appointed against the vacancy reserved for Ex- servicemen in terms of the Demobilised Rules. He has joined on 29.10.1999. It is, thus, evident that the post of P.E.T. was available under the category of Ex-serviceman and the case of petitioner was required to be considered for the same. The respondents have not chosen to file any reply to this averment made by the petitioner in this regard in the petition. Since in this case, the post was available, case of the petitioner was required to be considered against the vacancy which was available in 1998-1999. The stand of the respondent-State that no vacancy was available, is contrary to the record. 7. Accordingly, in view of the observations and discussions, made hereinabove, the petition is allowed. Annexure A-13, dated 27.04.2004 is quashed and set aside. The respondents are directed to fix the pay of petitioner and grant him other benefits towards seniority etc. from the date when the vacancy has become available under the category of Ex- servicemen in 1998-1999 within a period of two months from - 4 - the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge May 20, 2011. (bhupender) - 5 - `