IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 968 of 1998 THE RAJ. STATE EX-SERVICE LEAGUE V/S U.O.I. & ORS Mr. GR PUNIA, for the appellant Mr. KULDEEP MATHUR, for the respondent Date of Order : 5.3.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This appeal has been filed against the order of learned Single Judge dated 25.8.1998, whereby the writ petition was dismissed. The petitioner had filed writ petition on 2.2.1993, praying that it be declared that disengagement of the personnel mentioned in the schedule is illegal, and they are continuing in service, as if disengagement never took place, and the communication dated 30.12.1992 may be declared to be invalid, and quashed, and it be declared that the personnel will continue to be governed by the conditions of service which were originally offered, to these personnel. Then, all benefits consequent to the aforesaid relief are also claimed. The communication dated 30.12.1992 is produced as Annexure-4, which has been issued by the Director (Trg) to the Chief of Army Staff, informing that the President has conveyed the sanction for further extension of provisions of letter dt. 30.3.1992, for a further period of nine months, w.e.f. 1.4.1992 to 31.12.1992, so also, that the sanction was also conveyed for further embodiment of 128 Infantry Battalion Ecological Task Force w.e.f. 1.1.1993 to 31.10.1993, under Rule 33 of Territorial Army Rules, 1948 under revised terms and conditions given therein, which were, firstly, that all TA personnel of the Ecological Task Force (excluding Regular Army Personnel) will be disembodied on 31.12.1992. Secondly, that a total of 64 TA Personnel of the Ecological Task Force will be re-embodied w.e.f. 1.1.1993, and the remaining TA personnel of the Ecological Task Force will be re- embodied w.e.f. 1.3.1993. Then, the provision was made for annual leave/casual leave, and provision for employment of casual labour etc. was made. The learned Single Judge considered various aspects, about comprehension of expression “enrolment”, “embodiment” and “re-embodiment” etc., and ultimately found, that there is no illegality in the impugned order Annexure-4. 2 Arguing the appeal, all that was submitted was, that embodiment made had the effect of entitling the embodied personnel to the benefits mentioned in Annexure- 1, including, that the ex-serviceman drawing pension will continue to get full pension, in addition to pay and allowances as per regular army Group D (Infantry soldiers), and in addition, all other allowances and benefits, such as free ration, CILQ, DA/ADA etc. would be applicable as per regular army. Then, personnel already drawing pension will continue to do so in addition to their pay and allowances but they will not be entitled to enhancement of their pensionary benefits; and they will be entitled to family/disability pension in the event of death or disability during embodiment. Then, the ex- serviceman who are not in receipt of pension, will be entitled to gratuity after 5 years of embodied service or 10 years engagement at the rate specified in Annexure-1. It was contended that the order Annexure-4 has the effect of bringing about artificial break in the service, so as to adversely affect gratuity and continuity in service. The other submission made was, that this order has been passed in colourable exercise of powers, inasmuch as the embodied personnel were sought to be got rid of, for a period of two months, and during this period of two months, casual labour were sought to be appointed, which was violative of Article 14 and 16 of the Constitution of India. 3 On the other hand, learned counsel for the respondent supported the impugned order of the learned Single Judge, so also the order Annexure-4. We have considered the submissions, and have gone through the material available on record, including Territorial Army Act, and the Rules, which were made available to us by the learned counsel for the appellant. At this place it may be observed, that all the persons mentioned in the schedule have undisputedly served for initial period of embodiment, being 7 years, and some have enjoyed one further extension, and some have enjoyed more than one extension, and it is at this point of time, that the order Annexure-4 has come to be passed. With this, during course of hearing, certain more facts were brought to our notice by the learned counsel for the respondent, including that there were successive stay applications filed, where-from it was disclosed, that after 1.3.93 the disembodied personnel were recalled to join but they did not join, and thus it was sought to be contended, that as a matter of fact, the members of the petitioner appellant League do not want to continue to serve, and are simply litigating out. Our 4 attention was invited to the averment made in the third stay application, which is supported by the affidavit of Magha Ram, deposing that he was disembodied vide letter dt. 31.12.1992, which was followed by telegram Annexure- 11 dt. 12.3.93, calling him upon to rejoin for embodiment, and report immediately, but he was not prepared to work, and therefore, he was declared absconder, and was sought to be arrested, which order was sought to be stayed. Unfortunately we do not find the files of 1st stay application and 2nd stay application, nor do we have the original third stay application. However, copies of third stay application are available, and in view of the contents of Annexure-4, the impugned order, and the above averments, we are not inclined to go into the other aspects of the matter, as gone into by the learned Single Judge, and we feel better advised to dispose of the appeal, by simply holding, that since admittedly, disembodied personnel do not want to get re- embodied, on being recalled, the exercise, which we are called upon to undertake, would be an exercise in futility only. It would have been a different situation, that after filing of the writ petition, which was filed on 2.2.93, they would have joined, in response to call for rejoining, may be under protest, and could have prayed for treating continuity of service, and to be entitled to the benefits of Annexure-1. Then, the Court would have been in a position to examine the aspect, as 5 to whether the re-embodied personnel are entitled to the benefits of Annexure-1, or the revised conditions as contained in Annexure-4. But then, admittedly when they have not joined, the question cannot be gone into in abstract, that artificial break was sought to be given or that, other casual employees were sought to be taken for two months. It is again a different story, that embodiment was for a specified purpose, and as found by the learned Single Judge, there were conditions, during the period of two months being January and February, whereunder the work could not be undertaken on the high altitude of Himalaya. Then it is also significant, that despite writ having been filed on 2.2.93, it is not shown, that in any case, during the period of January, 1993, any casual labourers were engaged, as contemplated in Annexure-4, so as to lend assurance to the feelings and apprehensions of the petitioners, about the intentions and motives of issuing Annexure-4. With this, it is also significant to note, that even under Annexure-1, the gratuity admissible is admissible to the persons who were not drawing the pensionary benefits, and the persons who were drawing pensionary benefits, were not entitled to get any enhancement in their pensionary benefits. Obviously for the period, for which they have worked, they have been paid, and such break is not to be having any long lasting 6 effect subsequently. In these circumstances, we do not find any sufficient ground to interfere with the impugned order of the learned Single Judge, so also Annexure-4. The appeal thus has no force, and is dismissed. Parties shall bear their own costs. ( DEO NARAYAN THANVI ), J. ( N.P.GUPTA ), J. 7