IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 887 of 2011 Reserved on: 11.10.2011 Decided on: 15.10.2011 Rajeshwar Bhadur …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Lalit K. Sehgal, Advocate. For the respondents: Mr. J.S. Guleria, Assistant Advocate General, for respondents No. 1 to 3. Mr. Janesh Mahajan, Central Government Counsel, for respondent No. 4. Deepak Gupta, J. By means of this petition, the petitioner has prayed that the respondents be directed to count his Army service for the purpose of fixation of pay and seniority immediately after the first appointment to the next post reserved for Ex-servicemen was made and the respondents be also directed to grant fixed medical allowance to the petitioner. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 2. The undisputed facts are that the petitioner served the Indian Army for about five years and was discharged on compassionate grounds. Thereafter, he was enrolled in the Defence Security Corps and discharged on 30.06.1984. His entire service in Indian Army works out to about fifteen years. 3. In the year 1989, the petitioner applied for and was appointed as Laboratory Attendant against an unreserved post. The relevant rules regarding counting of Army service for fixation of pay is that when an Ex-serviceman is appointed against a non-reserved post, he is not entitled to count his previous Army service for purposes of pension. He can, however, at the same time, give an option that as and when the reserved vacancy arises, he may be considered to have been appointed against the said reserved vacancy and in that event, such an employee is entitled to count his past Army service for purposes of fixation of pay. 4. Admittedly, the petitioner did not exercise any such option when he joined in the year 1989 and his explanation is that he, being a Class IV employee, was not aware that any such option should have been exercised and no such option was called for by the State. 5. Alongwith the petition, the petitioner has attached a representation, Annexure P-5, which has been made on his behalf by the Himachal Pradesh Fourth Class Employees Association in the year 1994. The petitioner retired from service on 31.08.2003 -: 3 :- and there is no explanation as to why he kept silent from 1994 till his retirement in 2003. The present petition has been filed in the year 2011 and is highly belated. 6. When an Ex-serviceman is appointed against an unreserved post and opts to be considered against the next reserved post for Ex-servicemen which falls vacant in the department, the necessary consequence is that no recruitment is made to the post reserved for Ex-servicemen and the quota of Ex-servicemen gets filled in by such an employee. In case, no option is given, then some other Ex-serviceman is appointed. This Ex-serviceman will get the benefit of past services for purposes of pay and pension. There is no reason why the State should bear the burden of giving the benefit of past service to two employees when there is only one post reserved for Ex- servicemen. The remedy of the petitioner should have been to have given an option at earlier stage or atleast approach this Court much earlier. Therefore, this relief cannot be granted to the petitioner. 7. However, as far the fixed medical allowance is concerned, the petitioner being an Ex-serviceman can get free treatment in Army Hospitals and he cannot be denied the benefit of fixed medical allowance. Therefore, the respondents are directed to grant fixed medical allowance to the petitioner from the date of his retirement since admittedly he has not submitted any claim for reimbursement of medical expenses during this period. -: 4 :- 8. In view of the above discussion, the writ petition is partly allowed. The prayer for re-fixation of pay is rejected, but the respondents are directed to grant fixed medical allowance to the petitioner from the date of his retirement. No costs. (Deepak Gupta) Judge October 15, 2011 (rajni)