CIVIL APPEAL 488/2001 on 22 December 1976

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP (T) No. 2612/2008 Decided on:29.6.2010

_____________________________________________

Krishna Thakur and others. …Petitioner. Versus Secretary, Finance to the Government of Himachal Pradesh and others. …Respondents.

_______________________________________________________

Coram:

Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?[1] Yes. For the petitioner : Ms. Sunita Sharma, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General.

____________________________________________________

Rajiv Sharma, Judge (oral).

Material facts necessary for the adjudication of this petition are that the petitioners were engaged in the clerical cadre in the Treasuries and Accounts Organization with effect from 25.7.1975, 22.12.1976 and 26.12.1977, respectively. Respondents No. 3 to 11 were also appointed in the clerical cadre of Treasuries and Accounts Organization against the reserved quota for ex-servicemen under rule 3 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 (hereinafter referred to as ‘the Demobilized Armed Forces Personnel Rules’). 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.

Respondents No. 3 to 11 were appointed on 8.7.1985, 1.11.1989, 28.10.1989, 30.9.1988, 23.1.1989, 24.1.1989, 20.1.1989, 19.1.1989 and 26.10.1989, respectively. Seniority list of Clerks/Steno-Typists in Himachal Pradesh Treasuries and Accounts Organization, as it stood on 31.3.1994, was notified on 22.6.1994. Respondents No. 3 to 11 ranked senior to the petitioners on the basis of the benefits granted to them under the Demobilized Armed Forces Personnel Rules.

2. Ms. Sunita Sharma has strenuously argued that the benefit under the Demobilized Armed Forces Personnel Rules could only be given to those ex-servicemen, who were appointed during the period of two emergencies, i.e. 1.11.1962 to 10.1.1968 and 3.12.1971 onwards. She further contended that the Treasuries and Accounts Organization came into being on 11.8.1969 and private respondents cannot be given the benefits towards seniority on the basis of the Demobilized Armed Forces Personnel Rules before the constitution of this organization. In other words, her plea is that private respondents had the first opportunity to join Treasuries and Accounts Organization only in the year 1969-1970. She has relied upon the judgment of a Division Bench of this Court in Shri V.K. Behal and others versus State of H.P. and others, CWP No. 488/2001 decided on 29.12.2008.

3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that seniority has been assigned to private respondents strictly as per the Demobilized Armed Forces Personnel Rules. He then contended that private respondents were required to be given seniority irrespective of the fact whether they were recruited during the period of two emergencies, i.e. 1.11.1962 to 10.1.1968 and 3.12.1971 onwards or not. He further contended that before the reorganization of Treasuries and Accounts organization, Treasuries were in existence in the State of Himachal Pradesh and the private respondents had opportunity to be appointed.

4. I have heard the learned counsel for the parties and have perused the record carefully.

5. What emerges from the pleadings of the parties is that petitioners were appointed with effect from 25.7.1975, 22.12.1976 and 26.12.1977, respectively. Private respondents were appointed, as noticed above, in the years 1985, 1988 and 1989, respectively. However, these private respondents have been given the benefit of 15, 16, 18 and 19 years of approved military service for seniority. It is clear from the reply filed by the respondents that respondent No.6 joined the Army on 26.2.1970 and respondent No.11 joined the Army on 16.10.1969. These persons were appointed when there was no emergency. Respondent-State has given the benefit of approved military service to private respondents from the date of joining in the Army before 11.8.1969 as well. The Court is of the considered view that since Treasuries and Accounts Organization was constituted/came into being on 11.8.1969, the benefit of seniority could not be granted to the private respondents from the date anterior to it. Private respondents had the first opportunity only when the Treasuries and Accounts Organization was constituted/reorganized on 11.8.1969. There is no merit in the contention of Mr. P.M. Negi that private respondents had the opportunity to join the Treasuries under the State Government before 1970. Rather respondent-State has admitted in the reply that the first opportunity to join Treasuries and Accounts Organization State service became available to private respondents only after September, 1970.

6. The legal question raised by Ms. Sunita Sharma is no more res integra in view of the judgment rendered by the Division Bench of this Court in Shri V.K. Behal and others versus State of H.P. and other (supra). The Division Bench has held as under:

“In view of the above discussion we are clearly of the view that in case Rule 5 (i) of the Rules has to be upheld, the entire benefit of the same should be made available only to those ex-servicemen who joined the armed forces during the period of emergency. As far as other ex-servicemen are concerned they may avail the benefit of reservation and fixation of pay but cannot count the past service rendered in the armed forces for the purposes of counting their seniority in the civil service which they have joined under the reserved category of ex-servicemen. It is also made clear that in all cases the benefit of past service can only be available from the date when the ex-servicemen acquired the minimum educational qualification. No benefit can be given for the army service rendered prior to the date of attaining such education qualification.

In view of the above discussion, the writ petition is allowed. The Provision of Rule 5(1) of the Rules are read

down and they are held to be unconstitutional in so far as they give benefit of counting the past army service towards seniority in civil employment in case of ex-servicemen who have not joined the Armed forces during the period of emergency. It is also held that the benefit of such service can not be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria prescribed in the rules. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. There shall be no order as to costs.”

7. What emerges from the above discussion and the law laid down by the Division Bench of this Court is that only those ex-servicemen could be granted benefit of approved military service, who were appointed during the period of emergency, i.e. 1.11.1962 to 10.1.1968 and 3.12.1971 onwards. The persons who were appointed after January 10, 1968 and before December 3, 1971 could not be given benefit of approved military service towards seniority. Consequently, respondent No.6 and 11 have been given the benefit of approved military service towards seniority illegally. Similarly, private respondents could not be given benefit of seniority before the constitution of Treasuries and Accounts Organization as per Annexure A-1. They were entitled to get benefit of approved military service after organization of the Treasuries, i.e. 11.8.1969 and not before that.

8. Accordingly, the petition is allowed. Annexure A-14 dated 22.6.1994 is quashed and set aside. Respondents are directed to redo the seniority strictly as per observations made hereinabove. Needful be done within a period of four weeks from the date of production of certified copy of this judgment by the petitioners. No costs.

29.6.2010 *awasthi*

(Rajiv Sharma), Judge.