Case: (Ex) Capt. Randhir Singh Dhull Vs. S.D. Bhambri and Others

which is a part of the Tahsildari Rules does not survive the Constitution. We do not feel called upon to decide this point in this case as the petitioner cannot be allowed to raise the point for two reasons:- (i) The basis of the petitioners case all throughout, at all stages, was Annexure P. 5 based on the Tahsildari Rules and Standing Order No. 12. Even now he does not claim his appointment on any other basis; (ii) Secondly, if the Tahsildari Rules and the Standing Order No. 12 are held to be ultra vires, the letter of acceptance (or letter of appointment as the petitioner erroneously calls it) which was issued under the provisions of the said Rules, will disappear and the petitioner will have no legs to stand on. 11. Rule 11 of the Tahsildari Rules has been quoted above. It provides for the seniority of the members of the service. It is to be determined by the date of the substantive appointment in the post. The petitioner however claims that he is entitled to get the benefit of h is service in the army during the Emergency, under the provisions of the Emergency (Concession) Rules; Sub-rule (ii) of Rule 4 of the Emergency Concession Rules reads:"4 (ii) Seniority:-The period of military service mentioned in Clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service." Military service is defined in rule 2 thus:"For the purpose of these rules, the expression "military service" means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made b y the President under Art. 352 of the Constitution of India on the 26th October, 1962 in any of the three wings of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said Emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service. A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." The military service of the petitioner from January 11, 1962 to July 1, 1968 and again from 31.10.1968 to 22.9.1974 was n ot during the operation of emergency in question. Further the petitioners service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14.12.78 of the Financial Commissioner, Revenue, Haryana in the following terms:"In pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160. Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976. Shri Randhir Singh Dhull, a Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the A class Tahsildars. His date of appointment as Tahs ildar will be 27th May 1973. 2. Further his pay is fixed at Rs. 450/- P.M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8.2.78 (his actual date of appointment to the post of Tahsildar) and his next increment rai sing his pay to Rs. 475/-P.M. is 1.2.79. He will not be entitled to any arrears of pay as a result of the above fixation prior to 8.2.1978.3. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authorities. 12. The petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. In fact none of them was accepted alongwith him by letter dated 13.9.74. 13. The petitioners further grievance is that the military service of the Captain K. Phool Singh, Captain Khem Singh Lathar, Shri Inder Singh, Captain A. R. Kohar and Captain B. K. Batra mentioned in para 8 of the petition have been counted for the benefit of their seniority etc. The petitioners grievance is baseless. Their cases were different. None of them was given the benefit of his service from the date he joined as a Candidate. The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of military service from the date of acceptance as class A Tahsildar candidate. 14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution. The petition has no merit and is dismissed. We however leave the parties to bear their own costs. 15. Mr. Bhagat, the learned Counsel appearing for the Respondent, submitted that the Writ Petition was barred by res judicata and in support of his submission he cited a decision of this Court reported in AIR 1970 S. C. 898. We need not examine the submission for two reasons: (i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5.9.79 in S. L. P. No. 4475 of 1979 (Annexure P. 1) 16.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]8. A perusal of the letter as per Annexure P. 5 alongwith sub-rules 2 and 3 of rule 5 and rule 11 of the Tahsildari Rules clearly show that by letter Annexure P. 5 the petitioner was merely accepted as a candidate for the post of Tahsildar. Annexure P. 5 itself has mentioned the terms and conditions of the service namely training, passing of departmental examination and probation to be governed by the Tahsildari Rules and Standing Order No. 12 as amended from time to time. A candidate had to fulfil the terms and conditions named in the letter before his appointment to the post of Tahsildar. The terms and conditions) to undergo a period of training(ii) to pass a departmental examination(iii) to undergo a period of probation, etcFulfillments of these terms and conditions by a candidate were conditions precedent to his appointment. Annexure P. 5 has nowhere mentioned that the petitioner was appointed as a TahsildarWe therefore have no hesitation in holding that he was not appointed to, but accepted as candidate for, the post of Tahsildar, by Annexure P. 5A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." The military service of the petitioner from January 11, 1962 to July 1, 1968 and again from 31.10.1968 to 22.9.1974 was n ot during the operation of emergency in question. Further the petitioners service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14.12.78 of the Financial Commissioner, Revenue, Haryana in the followingn pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160. Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976. Shri Randhir Singh Dhull, a Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the A class Tahsildars. His date of appointment as Tahs ildar will be 27th May 1973.2. Further his pay is fixed at Rs. 450/- P.M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8.2.78 (his actual date of appointment to the post of Tahsildar) and his next increment rai sing his pay to Rs. 475/-P.M. is 1.2.79. He will not be entitled to any arrears of pay as a result of the above fixation prior to 8.2.19783. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authoritiesThe petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. In fact none of them was accepted alongwith him by letter dated 13.9.74. The petitionersgrievance is baseless. Their cases were different. None of them was given the benefit of his service from the date he joined as a Candidate. The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of military service from the date of acceptance as class A Tahsildar candidate14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution. The petition has no merit and is dismissed. We however leave the parties to bear their own costsWe need not examine the submission for two reasons:(i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5.9.79 in S. L. P. No. 4475 of 1979 (Annexure P. 1)