Case: R.K. Barwal &amp; Others Vs. State of Himachal Pradesh &amp; Others

3. The appellants in these appeals are Released Armed Forces Personnel. They were initially taken in the Army where they served for few years and after serving for certain years, they were released from the Army. Still young and far away from the age of retirement that is prescribed for civilian post, they applied for the post of Assistant District Attorney in the State of Himachal Pradesh (hereinafter referred to as the `State) and were successful in getting appointment as Assistant District Attorneys with the Department of Prosecution of the State. In terms of 1972 Rules, they were accorded the benefit of their approved military service for the purposes of fixation of their pay and seniority as Assistant District Attorneys. Details of appointments of these appellants are asNameDate of Joining Armed Forces and rankDate of release from Armed forces and rankDate of joining civil employment (prosecution department)Date of acquiring essential qualificationDeemed date of appointmentR.K. Barwal (Appellant No. 1)24.04.1981 (As Airman)10.09.1997 (As Sergeant)28.12.2001 (Appointed as ADA/APP)1991 (LLB) + 2 years experience20.03.1989 (By giving 12 years antedated seniority)D.S. Parmar (Appellant No. 2)21.06.1986 (As Havaldar Clerk)21.07.2001 (Asar)19.10.2006 (Appointed as ADA/APP)1991 (LLB) + 2 years experience09.09.1991 (By giving 15 years antedated seniority)S.S. Pathania (Appellant No. 3)16.01.1980 (As Seaman)28.02.1999 (As Master At Arms)18.11.2003 (Appointed as ADA/APP)1997 (LLB) + 2 years experience29.08.1986 (By giving 17 years seniority)N.S. Verma (Appellant No. 4)08.01.1974 (As Seaman)31.01.1989 (As Petty Officer)20.09.1996 (Appointed as ADA/APP)1984 (LLB) + 2 years experience20.03.1989 (By giving 12 yearsis clear from the aforesaid chart, though these appellants joined as Assistant District Attorneys with the State on later dates, they were given the seniority from the back/earlier date with the application of 1972 Rules by counting their approved military service. Their pay was also fixed accordingly.4. At this stage, we may reproduce the relevant provisions of 1972 Rules. Primarily, we are concerned with Rules 3(1) and 5 (1). The Preamble as well as the aforesaid Rules of the 1972 Rules read asn exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, hereby makes the following Rules regulating the reservation of vacancies in Himachal State,Services, for the Demobilised Emergency Commission Officers, Short Service Regular Commission Officers, Junior Commissioned Officers,Officers and other Ranks of the Armed Forces of the Indian Union (hereinafter called the Released Indian Armed Forces Personnel), and the recruitment of such officers/personnel on such vacancies, namely:3. 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 orwho joined service or were commissioned on or after the 1st day of November, 1962 and are released any time thereafter...."5. Seniority and Pay:(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 ofwho are already employed under State/Central Govt. against reserved posts).It may also be mentioned here that the State Government has framed similar Rules conferring this kind of benefit on the Released Armed Forces Personnel in Administrative Services as well. These Rules were framed in the year 1974 and are called the `Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh Administrative Services) Rules, 1974 (hereinafter referred to as the `1974 Rules). Though, the 1974 Rules are not the subject matter of these appeals, purpose for referring to these Rules is that the validity of these Rules was also challenged and the matter had come up to this Court. To that extent, reference to these Rules becomes relevant and the outcome of the proceedings would be mentioned at the appropriate stage.6. When the seniority of the appellants was fixed in the aforesaid manner as given in the table above, the result was that they were given seniority over and above some of those appointees who came in the general category and even when they were appointed as Assistant District Attorneys, prior in point of time. These persons, naturally, felt aggrieved by this favourable treatment accorded to the appellants, Respondent Nos. 3 to 5 herein as well as two other Assistant District Attorneys, thus, approached the State Administrative Tribunal by filing Original Application (OA), inter alia, challenging the vires of Rule 5(1) of 1972 Rules insofar as it conferred benefit of counting of approved military service upon the appellants towards fixation of their seniority. They prayed for striking down Rule 5(1) to the extent it confers seniority upon such Released Armed Forces Personnel with a specific prayer that deemed dates of appointment assigned to the appellants be declared as illegal. They also prayed for issuance of directions to the effect that these appellants be given seniority from the actual date of appointment as Assistant District Attorneys or alternatively from the dates they acquired eligibility for the post, viz., degree of Ll.B. Here, we may mention that these appellants had obtained LL.B. degree later on, but they were law graduates as on the date when they applied for the post of District Attorney and were eligible to be considered for the said post. However, the grievance of Respondent Nos.was that seniority is given to them, by counting military service, from the dates when they were not law graduates and thus not even eligible for the post, for want of requisite qualifications, on that date.7. The State Administrative Tribunal, after hearing the parties, dismissed the OA filed by the Respondent Nos.vide judgement dated January 12, 2001, thereby upholding the validity of Rule 5(1) of 1972 Rules.8. These respondents challenged the decision of the State Administrative Tribunal by filing writ petitions in the High Court. The High Court has, vide impugned judgment, partially struck down Rule 5(1) of the 1972 Rules. Relying upon the decision of this Court in Ram Janam Singh v. State of Uttar Pradesh and another, 1994(2) S.C.T 68 : (1994) 2 SCC 622  , the High Court has held that such a benefit of counting past service rendered in the armed forces would be admissible only to those personnel who had joined the forces during the period of Emergency and would be inadmissible in case ofwho had joined the armed forces at the time of peace.9. The result of the aforesaid judgment of the High Court is that the appellants stand deprived of the period of service rendered by them in armed forces for the purposes of seniority as they had not joined the said service during the period of emergency. Since, the High Court has rested its decision by relying upon Ram Janam Singh1 case and few other cases to the same effect, before proceeding further we would like to discuss these judgments and law laid down therein.Insofar as Civil Appeal No. 657 of 2016 is concerned, it is filed by State of Himachal Pradesh against the respondent who was anappointed as Peon against unreserved post with effect from January 01, 1975. The issue in that case was different though he was not given the benefit of Army service towards seniority, it was primarily for the officer that the respondent was appointed against unreserved post and on that basis the Government took the view that he could not be given the benefit available to theunder the 1972 Rules. Respondent approached the Administrative Tribunal, Himachal Pradesh and his O.A. was allowed. Against the judgment of the Tribunal, State filed writ petition which has been dismissed by the High Court vide judgment dated May 22, 2014 against which the aforesaid appeal is preferred by the State.

Court's reasoning:
13. Dicta laid down in the aforesaid judgments of this Court are apparent and explicit. The Court has held that there exists an intelligible criterion for providing quota toThe object is to rehabilitate thewhich can be achieved by providing reservations to them. Therefore, insofar as provision made in the Rules reserving a particular quota, within reasonable limits is concerned that is permitted and does not offend the provisions of Article 14 of the Constitution. There is an intelligible differentia having nexus with the objective sought to be achieved. Likewise, provision in the Rules for protecting the pay is also held to be permissible.It becomes apparent from the aforesaid discussion that while deciding against the appellants, the High Court has followed the judgments of this Court and the ratio has also been applied correctly. Therefore, the judgment of the High Court cannot be faulted with. Though, Mr. Paramjeet Singh Patwalia, learned senior counsel for the appellant had tried to distinguish the decision of this Court in Ram Janam Singh and Chittranjan Singh Chima cases, with the submission that the Rules in those two cases were different, however, it is difficult to accept this contention of the appellant having regard to the clear dicta and the ratio behind the said judgments which has already been discussed above.In a nutshell, the submission is that the distinction which was drawn by this Court between those persons who joined armed forces in peace time and those who joined during emergency is totally blurred. Emphasis of Mr. Patwalia was that even during thepeace time, armed forces are faced with warlike situations and, therefore, they should now be treated at par with thosewho joined the military service during the period of emergency. On that basis, it was submitted that the cases decided by this Court and referred to above need reconsideration.20. Insofar as official respondents, State of Himachal Pradesh and Secretary Personnel to the Government of Himachal Pradesh (Respondent Nos. 1 and 2) are concerned, they have supported the arguments of the appellants. In fact, even State has challenged the impugned judgment and its appeal is numbered as Civil Appeal No. ________ of 2017 (@ SLP(Civil) No. 14361 of 2009). These appeals were primarily contested by the private respondents who are civilians and were appointed to these posts on various dates and had filed the writ petition in the High Court which has been allowed by the High Court. In addition, an intervention application is filed by some other persons belonging to this very class and they have also supported the impugned judgment.21. Insofar as private respondents, namely, Respondent nos. 4 and 5 as well as interveners are concerned, submission of the learned counsel appearing on their behalf was that the judgment of the High Court was in accord with the law laid down by this Court and, therefore, there was no reason to interfere with the same. It was submitted that the background in which 1972 Rules were framed had to be kept in mind. In this behalf, their submission was that China had attacked the Nation on October 20, 1962 and proclamation of Emergency was made on October 26, 1962. It was found that there was acute shortage of young personnel in the Armed Forces who could defend the country and accordingly a number of concessions were announced by the Central and the State Governments for those persons who joined these forces including reservation of posts, counting of the period served in the military for seniority and protection of pay and pension in the civil posts.After giving our due consideration to the respective submissions and minutely going through the judgments of this Court discussed above, which have been relied upon by the High Court, we do not see any reason to deviate therefrom nor do we find any justification in referring the issue to the larger Bench.27. No doubt, Mr. Patwalia is right in pointing out that those who are joining military service even in `peace times are faced with difficult situations of proxy war and have also to deal with insurgency and terrorism. It is also a matter of common knowledge that these military personnel are risking their life while dealing with the aforesaid difficult situations and, in fact, the casualties and fatalities of the soldiers are on the rise. When they leave the military service, as anthey not only get the benefit of appointment to the civilian post against the quota earmarked for them, they are also getting the benefit of counting of military service when their pay is fixed on their appointment to the civilian post. However, benefit of counting of military service rendered by thesefor the purpose of seniority cannot be extended to them. Such a benefit is restricted by this Court only to those who joined armed forces during emergency due to foreign aggression. This special category was carved in the judgments referred to above. This Court, while doing so, categorically and repeatedly held that the call of service to nation during war period is on a totally different footing than joining army when the country is not facing any such foreign aggression. The Court pointed out that persons who were commissioned in armed forces when the nation was faced with foreign aggression and the cry of the time was that persons should join armed forces to defend the integrity and sovereignty of the nation, it was stressed that many persons in such situations are not inclined to join the armed forces and only those with the feeling for the honour of the nation rise to such occasions. For this reason, such persons joining armed forces at that time, sacrificing their career, had to be treated as a separate class by extending them the benefit in the matter of seniority as well. However, those who joined the armed forces otherwise, they do so in look out of a career and joined such services of their own volition. They are prepared for the normal risk in service of the armed forces. Therefore, benefit of service rendered in armed forces cannot be extended to such a class for the purposes of seniority. The circumstances pointed out by Mr. Patwalia are nothing but those risks which are very well known and prevalent. Fact remains that these persons joined the service to make their career and on their own volition, exercising it as a matter of choice. Their cases are, therefore, on a different footing altogether. After all, if the benefit of armed force services rendered is extended to each and everyfor the purpose of seniority, it may result in far reaching implications. Examples in this behalf are given by the private respondents, as noted above. This Court cannot shy away from the normal rule of fixing the seniority, as enunciated in the cases of Direct Recruitment Class II Engineering Officers Association as well as Aghore Nath Dev, i.e. the seniority of an officer in service is determined with reference to the date of his entry in the service, which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise, it may disturb the equilibrium by making many direct recruits junior to sucheven when such direct recruits joined the services in civil posts much earlier than theThus, an exceptional category carved out for giving such a benefit only to those who were commissioned in armed forces during war time cannot be extended to each and everymerely because he has served in armed forces.28. We, therefore, are of the considered opinion that there is no reason to deviate from the principle laid down by this Court in Ram Janam Singh and Chittranjan Singh Chima. This contention of the appellant is, thus, rejected.Thus, grant of benefit of military service even in respect of those who join the armed forces during the emergency, only from the date when they attained the minimum eligibility criteria prescribed in the Rules for the post to which such persons are appointed.32. Since we have already held that insofar as these appellants are concerned, they are not entitled to get the period served in armed forces counted for the purpose of seniority as Assistant District Attorney, this question does not arise for consideration in theseperusal of the judgment of the High Court would reveal that the administrative instructions issued by the Government that when a released Army Personnel has been appointed against the generalvacancy in the first instance, he should be given an option at the time of first appointment to accept a reserved vacancy, even if it occurs subsequent to his appointment. The High Court noted that such an option was never provided to the respondent. The vacancy became available after the appointment of respondent as Peon on January 01, 1975 and since the State Government was required to give option to the respondent at the time of initial appointment to be considered against the post reserved forwhich was not done and, therefore, respondent could not be made to suffer due to reminiscence on the part of the State Government.