IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP-T No.3087 of 2008. Date of Decision: 17th August, 2010. Prem Singh …Petitioner. Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Mr.Ramesh Sharma, Advocate. For the Respondent(s): Mr.Rajesh Mandhotra, Dy.A.G. for R- 1&2. Mr.Surinder Thakur, vice counsel for R-3. Deepak Gupta, J.(oral) The grievance of the petitioner in this petition is that though he was eligible to be sponsored for appointment for the post of Forest Guard against the ex-servicemen quota, the respondent No.2 Directorate of Sainik Welfare, Himachal Pradesh did not sponsor his name and resultantly a person junior to him i.e. respondent No.3 Sarwan Kumar was sponsored and appointed against the said post. The brief facts of the case are that the petitioner was born on 17th March, 1954. He joined the Indian Army some time in the year 1974 and was discharged on 30.9.1989. He thereafter enrolled himself with the Directorate of Sainik Welfare as well as Employment Exchange. It is not disputed that his name was also empanelled for being appointed to the post of Forest Guard. A requisition was issued for recruitment of a large number of forest guards. In so far as Bilaspur District is concerned there 2 were 40 anticipated vacancies out of which five fell to the category of ex-servicemen; three in the general category, one in OBC and one in scheduled caste category. The petitioner admittedly retired before respondent No.3 who retired in the year 1990. The stand of respondent No.2 is that the petitioner was overage and therefore his name was not sponsored for the post of forest guard. This stand is totally incorrect. The Government of Himachal Pradesh issued a Booklet on Service Matters relating to Ex-Servicemen as far back as in December, 1983. It would not be too much to presume that the officials manning the Directorate of Sainik Welfare should not be well versed with the instructions issued by the State Government in respect of the Ex- Servicemen from time to time. Clause 7 of these instructions reads as follows: “7.What is the upper-age limit for recruitment of ex- Servicemen? As per provision contained in rule 4(2)(b) an ex-Serviceman candidate shall be eligible to appointment to the civil service if his age at the time of joining military service or training prior to the Commission, as the case may be, does not exceed the upper age limit prescribed for direct recruitment to such post. From this it is clear that he should not have crossed the upper age limit prescribed for the post/service to which he applies as an ex- serviceman, at the time of his joining the military service to become eligible for that post/service. As such, in effect, there is no upper age limit for recruitment of ex-servicemen.” (emphasis supplied) This clearly shows that there is no upper age limit for appointment of ex-Servicemen when they are appointed against a post reserved for ex-Servicemen. From the material on record it is obvious that respondent No.3 has been appointed against a 3 post reserved for ex-Servicemen and the petitioner should have been appointed against the said post. Assuming for the sake of arguments that Clause 7 is not applicable then clause 15 of the aforesaid booklet would be applicable and the same reads as follows: “15. What concessions are given to ex-Servicemen when appointed against un-reserved vacancies: (a) Concession of age relaxation.—Instructions issued through letter No.11-50/64-GAD (Vol.V) dated the 28th August, 1982 grant age relaxation for ex-Servicemen seeking appointment under the State Government against un-reserved vacancies. According to these instructions, in the case of ex-Servicemen seeking appointments under the State Government made otherwise than on the basis of open competitive examination to be held by the Himachal Pradesh Public Service commission, the period of approved military service rendered by a candidate after attaining the minimum age prescribed for appointment to the service concerned, should be deducted from his actual age and if the resultant age does not exceed the prescribed age limit for the post applied for by him more than 3 years, he should be deemed to have satisfied the conditions of appointment to the post in question in respect of the maximum age.” This para 15 is virtually identical to the document relied upon by respondent No.2 which is the National Employment Service Manual. Even if the aforesaid directions are held to be applicable and it is held that the post was not reserved for ex-Servicemen it is apparent that the ex-Serviceman is permitted to deduct the period of army service rendered after attaining the minimum age prescribed for the post from the actual age. Thereafter, they have to be given another grace of 3 years. In this case, the minimum age of recruitment prescribed is 18 years and the maximum is 27 years. 4 Though the exact date of the petitioner’s enrolment in the Indian Army is not certain but it is apparent that he has joined the Indian Army at the end of 1974 or the beginning of 1975 i.e. after he had attained the age of 18 years since he was born in the year 1954. He was 45 years 9 months and 14 days old on 1st January, 2000 i.e. the year of recruitment. If his service of 15 years 10 months and 21 days is excluded it would mean that his age should be reckoned as 29 years 10 months and 23 days on 1st January, 2000. He has to be given another benefit of 3 years which would mean that for the purpose of recruitment he was 26 years 10 months and 23 days old which is less than the upper age prescribed. It is thus obvious that the petitioner’s case was wrongly overlooked by the respondent No.2 and the respondent No.3 was wrongly sponsored and appointed. Normally, in such a situation the appointment of respondent No.3 would have been cancelled and the petitioner would have been directed to be considered for appointment in his place. However, I find that now the petitioner would be over 56 years of age and by the time he undergoes training etc. of forest guard it would be meaningless to appoint him to civil service. Another aspect of the matter which cannot be lost sight of is that the respondent No.3 has already rendered about 10 years of service in the Forest Department. 5 Therefore, I feel that the relief has to be moulded keeping in view the peculiar facts and circumstances of this case. The error has occurred in the office of the Directorate of Sainik Welfare and it is this office which is responsible for sponsoring wrong name. If the petitioner would have been in service he would have, in the last 10 years, earned substantial amount and he would have continued in service for another 2 years. Keeping in view all these factors it is more than apparent that the petitioner has lost a substantial sum of money during this period. One must also take into consideration the fact that the petitioner may not have been idle during these many years and may have been rendering some other vocation. The salary of a forest guard at the minimum of scale would be Rs.15,000/- per month. The petitioner has also been deprived of the benefits of additional pension which he would have got if he continued in service. Further the petitioner shall not be made to suffer for the delay which has taken place in the decision of this case for which he is not at fault. Therefore, though I feel that the relief to which he is actually entitled cannot be granted to him but he must be compensated for the same. Keeping all these factors into consideration, I feel that the interest of justice shall be met in case the respondent No.2 is directed to compensate the petitioner by paying compensation of Rs.1,50,000/- which shall be against all the claims arising out of the present case. 6 The petition is accordingly allowed in the aforesaid terms. The respondent No.2 is directed to pay a sum of Rs.1,50,000/- as lump sum compensation for the injury which the petitioner has suffered due to the wrong action on the part of respondent No.2. This amount be paid to the petitioner on or before 31st of December, 2010 failing which the respondent No.2 shall be liable to pay interest on this amount @ 9% p.a. from the date of filing of the Original application till payment of the amount. There shall be no order as to costs. August 17, 2010 ( Deepak Gupta ) PV Judge.