IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 213 of 1999 with CWP Nos.223 & 289 of 1999 . Decided on: 05.08.2010. __________________________________________________________ 1. CWP No.213 of 1999. Ramesh Kumar Kapoor and others. … Petitioners. Versus Anil Kumar and others. … Respondents. 2. CWP No.223 of 1999. R.N. Rathore and others. … Petitioners. Versus Ranjit Chand Katoch and others. … Respondents. 3. CWP No.289 of 1999. Mohan Lal and another. … Petitioners. Versus Hira Lal and others. … Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. For the petitioners : Mr. Bimal Gupta, Advocate (in all the petitions). For the Respondents : Ms. Ranjana Parmar, Advocate for respondent No.1 in CWP No.213 of 1999. Mr. Dilip Sharma, Advocate for respondent No.1 in CWP No.223 of 1999. Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General for respondents No.2 and 3 (in all the petitions). - 2 - Justice Kurian Joseph, C. J. (Oral): The issues raised in these writ petitions, it is not disputed, are covered by the decision of a Division Bench of this Court rendered in V.K. Behal and others V/s State of H.P. and others, Latest HLJ 2009 (HP) 402, wherein this Court has held as under:- “This Writ Petition is directed against the order of the learned H.P. State Administrative Tribunal dated January 12, 2001 passed in O.A. No.191 of 1999 whereby the Original Application filed by the petitioners and respondents No.6&7 herein was rejected. 2. Briefly stated, the facts are that the petitioners and the private respondents are all working in the Department of the State of Himachal Pradesh. They were selected as Assistant District Attorneys on different dates. The petitioners, by means of the O.A. and by means of the present petition have challenged the constitutional validity of the Demobilized Armed Forces Personnel (Reservation of vacancies in the Himachal Pradesh State Non-Technical Services) Rules, 1972 (hereinafter referred to as the Rules). Rule 5(i) of the aforesaid Rules as originally notified on 28.3.1972 read as follows: “Service rendered in the armed forces including the period spent on training prior to Commission in the case of Commissioned Officers, shall count, in full, towards seniority and fixation of pay under the State Government in the post to which he is first appointed against the vacancy reserved under Rule 3.” This rule was amended vide notification dated 6.12.1980 to read as follows: “Seniority and pay of the candidates who are appointed against the vacancies reserved under Rule 3 shall be - 3 - determined on the assumption that they joined the service or the post, as the case may be, under the State Govt. at the first opportunity they had after they joined the military service or training prior to the Commission.” The aforesaid provision was against amended and now the provision reads as follows: “(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 relevant rules, shall count towards fixation of pay and seniority in that service. This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under the State/Central Govt. against reserved posts.” The petitioners challenge the validity of this Rule on various counts. We have heard Shri Dalip Sharma, learned counsel for the petitioners, Sh.R.M. Bisht, learned Deputy Advocate General for respondents 1&2 and S/Sh.Bhuvnesh Sharma, Ajay Chandel and Surinder Sharma, counsel for private respondents and the interveners. 3. The main contention raised on behalf of the petitioners by Sh. Dalip Sharma is that the Rules are unconstitutional because they give benefit to even those ex-servicemen who had not joined service in the armed forces during the period of emergency. According to the petitioners, the persons who join the armed forces when the situation in the Country is normal do not do anything extra-ordinary and they join the armed forces like any other career and therefore there is no rationale for giving them benefit of the service rendered by them in the armed forces for the purposes of pay and seniority. Sh.Dalip Sharma, learned counsel for the petitioners has urged that he is not - 4 - in any manner arguing that the ex-servicemen do not form a separate class. He submits that to satisfy the tests of Article 14 not only should the classification be justified but there should be a reasonable nexus with the object sought to be achieved. It is his submission that if the object is to rehabilitate the ex-serviceman this object is served by providing reservations to them. However, according to him, there is no justification in granting them the benefit of seniority by adding the period of service rendered by them in the Army. He submits that once the persons are recruited from various sources and become members of one service no further distinction can be made between them on the ground of the past service rendered in a totally unrelated employment. In the alternative he submits that the benefit, if any, should be restricted to grant of financial benefits like fixation of pay only and the rights of other individuals who joined service much before the ex- servicemen cannot be jeopardized by giving the ex- servicemen benefit of adding the service rendered by them in the armed forces for reckoning their seniority. According to him, the case of ex-servicemen who joined armed forces during the period of emergency when the Nation was facing foreign aggression or when the sovereignty and integrity of the Country was at stake, stands on a completely different footing and the ex-servicemen who joined during emergency have to be treated as a different class. The benefit given to such ex-servicemen who joined during emergency cannot be extended to the person who joined service during normalcy. In the alternative it is urged that even if the Rule is held to be valid the deemed date of appointment cannot be from a date prior to such persons acquiring the minimum educational eligibility criteria prescribed in the Rules. 4. On the other hand, counsel for the respondents and interveners have supported the validity of the Rules and have contended that not only is there an intelligible - 5 - criteria but the classification also has a reasonable nexus with the object sought to be achieved. The respondents have also argued that the Apex Court has virtually upheld the validity of the H.P. Rules though in the context of H.P. Police Service in S.B. Dogra vs. State of H.P., (1992) 4 SCC 455. 5. The main plank of argument of the petitioners is that the Apex Court in Ram Janam Singh vs. State of Uttar Pradesh and another, AIR 1994 SC 1722 clearly held that the ex-servicemen who joined service in the armed forces during the period of emergency have to be treated at a higher pedestal than those who joined service during normalcy. The two categories are unequal and cannot be equated. It would be pertinent to mention that under the U.P. Non Technical (Class-II) Services (Reservation of Vacancies for Demobilized Officers) Rules, 1973 the benefit of the Rules was confined to those ex- servicemen who had joined service in the armed forces during the period when the Country was under a state of emergency. One person who had joined service in the armed forces during the period when the emergency was not in operation challenged the non-grant of the benefit of Rules to him on the ground that there was no reasonable rational basis for excluding the period from January 10, 1969 when the emergency was lifted till December 3, 1971 when the same was re-imposed. This writ petition was allowed by the Allahabad High Court. Thereafter, Ram Janam Singh filed an appeal before the Apex Court which was allowed. The Apex Court held as follows: “10. From time to time controversy regarding inter se seniority is raised between persons recruited from different sources to the same service. In past, notional seniority used to be given to one group of officers, purporting to mitigate their hardship or to rectify any alleged wrong done to them in the process of recruitment - 6 - or promotion. Ultimately, it was realised that if liberty is given to fix seniority of an officer or group of officers belonging to a particular category with reference to a notional date, that will lead to great uncertainty in public service. The date of entry into a particular service was considered to be the most safe rule to follow while determining the inter se (sic) one officer or the other or between one group of officers and the other recruited from the different sources. After referring to different judgments of this Court, a Constitution Bench in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1980) 2 SCC 715 : (AIR 1990 SC 1607), came to the same conclusion. The same has been reiterated in the case of State of West Bengal v. Aghore Nath Dev,(1993) 3 SCC 371. It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service, which will be consistent with the recruitment of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons can be treated a class separate from the rest, for any preferential or beneficial treatment while fixing their seniority. But, whether such, group of persons belong to a special class for any special treatment, in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed, because they purport to affect the seniority of persons, who are already in service. For promotional posts, generally the rule regarding merit and ability or seniority-cum- merit is followed in most of the services. As such the seniority of an employee in the later case is material and relevant to further his career, which can be affected by factors, which can be held to be reasonable and rational. 11. It appears that the framers of the Rules 1973 and 1980, while treating the persons, who had been - 7 - commissioned on or after November 1, 1962 but before January 10, 1968 and again on or after December 3, 1971, took into account the circumstances and the background in which such persons were commissioned in Armed Forces i.e. when the nation was faced with foreign aggressions and the cry of the time was that persons should join the Armed Forces to defend the integrity and sovereignty of the nation. It is well known that many persons in such situation are not inclined to join Armed Forces and only those with feeling for the honour of the nation rise to such occasions. In this background, if such persons have been treated as a separate class for extending any benefit in the matter of seniority, none can make any grievance and their classification can be upheld even in the light of Articles 14 and 16 of the Constitution. 12. But, we fail to understand as to how persons, who joined after the emergency was over i.e. after January 10, 1968 and before December 3, 1971, when another emergency was imposed in view of the foreign aggression can be treated at par or on the same level. It need not be pointed out that such persons were in look out of a career and joined the Armed Forces of their own volition. It can be presumed that they were prepared for the normal risk in the service of the Armed Forces. Those who joined Armed Forces after November 1, 1962 or December 3, 1971, not only joined Armed Forces but joined a war which was being fought by the nation. If the benefits extended to such persons, who were commissioned during national emergencies are extended even to the members of the Armed Forces who joined during normal times, members of the Civil Services can make legitimate grievance that their seniority is being affected by persons recruited to the service after they had entered in the said service without there being any rational basis for the same. 13. xxxxxxxx - 8 - 14. Can it be said that the persons who had joined army after the declaration of emergency due to foreign aggression and those who joined after the war came to an end stand on the same footing? Those who joined Army after revocation of emergency joined army as a career. It is well known that many persons, who joined army service during the foreign aggression could have opted for other career or service. But the nation itself being under peril, impelled by the spirit to serve the nation, they opted for joining Army where then risk was writ large. No one can dispute that such persons formed a class by themselves and by Rules aforesaid an attempt has been made to compensate those who returned from war if they compete in different service. According to us, the plea that even persons, who joined army service after cessation of foreign aggression and revocation of emergency have to be treated like persons, who have joined army service during emergency, due to foreign aggression is a futile plea and should not have been accepted by the High Court. It need not be impressed that whenever any particular period spent in any other service by a person is added to the service to which such person joins later, it is bound to affect the seniority of persons who have already entered in the service. As such any period of earlier service should be taken into account for determination of seniority in the later service only for some very compelling reasons, which stand the test of reasonableness and on examination can be held to be free from arbitrariness.” (emphasis supplied) 6. In Narendra Nath Pandey and others vs. State of U.P. and others, AIR 1988 SC 1648 the Apex Court was dealing with the provisions of Rule 6 of the U.P. Rules, the relevant portion of which reads as follows: “R.6 Seniority and pay- (1)Seniority and pay of candidates appointed against the vacancies reserved under sub-rule (1) of Rule 3, shall be - 9 - determined on the assumption that they entered the service concerned at their second opportunity, of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination.” Interpreting this Rule, the Apex Court held as follows: “13. 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 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. 14. 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 - 10 - 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 injustice to the appellants who have been recruited under the Service Rules after competing successfully in the examination. 15. 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 - 11 - discharge and the recruitment without any reservation for computing the seniority.” 7. A Division Bench of this Court of which one of us (V.K.Ahuja, J) was a Member, considered in detail the provisions of reservation for ex-servicemen in so far as they were applicable to the H.P. Administrative Service in CWP No.1352 of 2006 titled Rajinder Singh and others vs. State of H.P. and others & other connected matters. In that case also Rule 4(i) of the Rules was challenged on the ground that though there may be reservation for those persons who joined armed forces during emergency when the Nation faced aggression by treating them as special class but the said reservation should not be extended by giving benefit to all those persons who had joined the armed forces in normal period. The Division Bench while dealing with this contention discussed the issue in the following terms: “A perusal of these Rules shows that the term ‘demobilized’ has not been defined in any of the rules and it is clear that taking the definition from the dictionary, it can be interpreted that these Rules are meant for providing reservation to those armed forces personnel who had been demobilized from these forces. Nowhere the word ex serviceman has been used in the preamble or title of these Rules. The intention of the State Government was to give benefit to those persons who had been demolished (sic) after the emergency and not to all ex servicemen. This demobilization may be due to the cessation of external aggression and reduction of strength of armed forces which are raised to meet the challenge posed by the Indo China war of 1962 and Indo Pak war of 1965. Xxxxxxxxx These Rules were exclusively framed for the benefit of those Indian Armed Forces Personnel who had served in these forces during the national emergency and not for all ex servicemen though they were entitled to be selected - 12 - against the quota reserved for ex servicemen which was already availed for 1984-85 batch by Shri B.R. Verma and there could not be reservation for two posts in that year and, therefore, respondent No.4 was not entitled to be adjusted for the purpose of seniority or reservation as an ex serviceman or demobilized person which are two distinct terms and has to be construed distinctively at different places. Xxxxxxxxx The next limb of the argument of the learned counsel for the petitioners was that respondent No. 4 had not joined during emergency and the benefit of service rendered as ex-serviceman were given to a person who did not join in emergency but joined in normal time and, therefore, the Rules providing for reservation or giving of benefit of past military can be said to be ultra vires provisions of the Constitution and further that the amendment in rules cannot take the benefits accrued to a person retrospectively and the seniority cannot be changed after a lapse of considerable time. Learned counsel for the petitioners had placed reliance on the following decisions. In the decision in S.B. Dogra Vs. State of H.P. and others, (1992) 4 Supreme Court Cases 455, shows that an Appellant Emergency Commissioned Officer, joined Delhi, H.P. Anandaman and Nicobar Island Police Service and after formation of State of Himachal Pradesh was allocated to State Police Service and appointed against the vacancy reserved for Demobilized Armed Forces Personnel. It was held that the Tribunal ought not to have disturbed the seniority after such a long lapse of time when respondent had not challenged it before the same was finalized in 1979. In Chittranjan Singh Chima & another Vs. State of Punjab & others, (1997) 11 Supreme Court Cases 447, the apex Court has held that the persons appointed to defence services under the normal recruitment, before proclamation of (External) Emergency on 26.10.1962, were not covered under the expression “military service” - 13 - as defined in the Punjab Government National Emergency (Concession) Rules, 1965. Hence, the appellants who were enrolled in Indian Air Force on 7.12.1957 and 3.9.1959 respectively and were released in 1974 on completion of 15 years of service, held, not entitled to benefit of this service for seniority and other consequential benefits because they were not appointed during emergency but in the regular process. Xxxxxxxxxx The decision in Ram Janam Singh Vs. State of Utter Pradesh & others, AIR 1994 S.C. 1722, deals with the question about which concessions were given to those officers joining armed forces during emergency and thereafter. However, denial to those joining after revocation of emergency is not discriminatory. Separate rules were framed conferring benefit in the matter of seniority only on those officers joining armed forces after November 1, 1962 but before January 10, 1968 and those joining after 3rd December, 1971 were held to be not discriminatory. Such officers benefited under the Rules constitute a separate class. It is apparent from Ram Janam’s case supra that the Supreme Court has clearly held that denial of the concession to persons who joined armed forces after revocation of emergency is not discriminatory and the officers benefited under the Rules framed by the State Government to give