IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 2381 of 2008 Date of Decision: 19.06.2009 Jai Kumar …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: Mr. Dilip Sharma, Advocate. For the Respondents.: Mr. R.K.Sharma, Sr. Addl. Advocate General. Per Deepak Gupta, J. The petitioner had filed O.A. No. 3294 of 1994 before the H.P.State Administrative Tribunal, Shimla. Since the Tribunal stands abolished vide notification issued by the Central Government and the case has been transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, the matter has been taken up by this Court and now registered as CWP(T) 2381 of 2008. The brief facts of the case are that the petitioner was enrolled in the Indian Army on 28th March, 1984. He was 2 discharged from the army on medical grounds on 1.11.1989. He applied for the post of Lecturer, school cadre against a post reserved for ex-servicemen. Interviews were held on 28.10.1994 but the candidature of the petitioner was rejected on the ground that he did not fall within the definition of ex-serviceman since he was not in receipt of any pension. The reservation for Demobilized Armed Forces Personnel in the school cadre is governed by the rules known as Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972. Rule 3 reads as follows:- “Reservation of Vacancies- (1) Fifteen percent Vacancies in respect of all posts viz. Class I, II, III and IV to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel who joined service or were commissioned on or after the 1st day of November, 1962 and are released any time thereafter.” Shri Dilip Sharma, learned counsel for the petitioner states that these rules do not talk of reservation for ex-servicemen but only talks of reservation for the released Indian Armed Forces Personnel. The petitioner has also placed reliance on the definition of ex-serviceman as given in the booklet of service matters issued by the State of 3 Himachal Pradesh from which it is clear that for recruitment purposes any person who has served in the military for at least six months continuously is entitled to be considered against the reserved vacancies unless he has been dismissed or discharged on account of misconduct or inefficiency. In case of persons released on their own request they should have served at least five years to qualify for the benefits admissible to ex-serviceman. The stand of the respondent is that the definition of ex- serviceman has been changed by the Central Government on 14th April, 1987 and this definition was forwarded by the H.P Rajya Sainik Board on 6th October, 1987. Relevant portion of this definition for our purpose read as follows:- “An Ex-serviceman means a person, who has served in any rank whether as a combatant or non combatant in the regular Army, Navy and Air Force of the Indian Union and (i) who retired from such service after earning his/her pension; or (ii) who has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (iii) who has been released, otherwise than on his own request, from such service as a result of reduction in establishment; or (iv) Who has been released from such service after completing the specific period of engagements, otherwise than at his won request or by way of dismissal or discharge on account of misconduct or inefficiency, and has been given a gratuity and includes personnel of the Territorial Army of the following categories, namely:- (i) Pension holders for continuous embodies service. (ii) Persons with disability attributable to military service; and (iii) Gallantry award winners.” 4 According to the respondents since the petitioner was discharged on medical grounds but has not been awarded any medical or other disability pension, he is not entitled to be considered an ex-serviceman. At the outset, it may be noticed that this definition was incorporated on the recommendation of the high level Committee in context of the ex-serviceman (Re-employment in Central Civil Services and Posts Rules, 1979). Though this definition appears to have been accepted by the Central Government no material has been placed on record to show that this definition was ever accepted by the State Government. Even assuming that this definition has been accepted by the State Government, it shall have no material effect on the decision of the case. The reservation for vacancies in the non-technical services under the State of Himachal Pradesh is governed by the rules referred to above. These rules do not talk of ex-serviceman but only talk of released Indian Armed Forces Personnel who joined services or were commissioned after 1st November, 1962 and were released any time thereafter. These rules do not contain any condition that the Released Indian Armed Forces Personnel must be getting pension. Rule 6 of these rules reads as follows:- 5 “Over riding effect of these Rules.- The provisions of these rules shall have effect notwithstanding anything to the contrary contained in any other rules.” These rules have overriding effect and prevail over any other rules to the contrary. Even otherwise rules stand on a higher footing than executive instructions. If there is conflict between executive instructions and rules, the rules must prevail. The writ petition is accordingly accepted. It is thus obvious that the petitioner was entitled to the benefit of the rules and should have been considered for appointment against the reserved vacancy. Having held so, I am of the considered opinion that the clock cannot now be turned back. The interviews for the post were held in the year 1994 and at that time the petitioner was aged about 30 years. Now, he must be above 45 years. He cannot be offered appointment only on the basis of the interview held more than 15 years back. At the same time, the petitioner cannot be punished for the delay in the legal system for which he is not responsible. Therefore, in the interest of justice, it is directed that in case the petitioner applies for any post under the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972, within one year from 6 today his candidature shall not be rejected only on the ground that he is over age and he shall be considered for appointment in accordance with the rules. The writ petition is disposed of in the aforesaid terms. No order as to costs. June 19, 2009. ( Deepak Gupta ) ™ Judge.