JAGMOHAN SINGH DHILLON ETC.ETC. versus SATWANT SINGH & ORS. ETC. ETC. on 26 March 2021

1. These appeals have been filed against the Division BenchJudgment of High Court of Punjab and Haryana dated 28.07.2009 inLPA No.213 of 2007 with LPA No.177 of 2007. The High Court videthe impugned judgment has allowed the LPA filed by the State of Punjaband set aside the judgment of learned Single Judge and dismissed thewrit petitions filed by the appellants before us.

2. Brief facts of the case necessary to be noted for deciding theseappeals are:

i.The appellants are ex-servicemen, who after being releasedfrom the Army were appointed to Punjab Civil Service(Executive Branch). Rules were framed namelyDemobilized Indian Armed Forces Personnel (Reservationof Vacancies in the Punjab Civil Service) (ExecutiveBranch) Rules, 1972, under which Rules Twenty percentof the vacancies in the Punjab Civil Service (ExecutiveBranch) were to be filled in by direct recruitment fromamongst Released Indian Armed Forces Personnel, who A

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joined military service or were commissioned on or afterthe first day of November, 1962. The vacancies existedunder Rules, 1972 for direct recruitment were from 1979to 1981.

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ii.Another set of Rules were framed namely PunjabBRecruitment of Ex-servicemen Rules, 1982 which weregazetted on 12.02.1982. Fifteen percent of the vacanciesto be filled by direct appointment were reserved for beingfilled in the recruitment by ex-servicemen. By 1982 Rules,the Rules 1972 as above mentioned were repealed. Anadvertisement was published on 01.05.1982 beingCadvertisement No.2 advertising the post of Punjab CivilService (Executive Branch). The examination was held inthe year 1985 and the appellants were appointed vide orderdated 18.03.1986 to Punjab Civil Service (ExecutiveBranch). The seniority list was issued in the year 1994 inDwhich seniority of the appellant was fixed at S.No.25 without granting him any benefit of earlier services in the Army.

iii.The appellant submitted representation against wrongfixation of his seniority. The appellant filed a Writ PetitionNo.8069 of 2001. In the writ petition, the appellant claimedEthat his seniority be re-fixed by granting military servicesbenefit in terms of Rule 4 of 1972 Rules. The writ petitionof the appellant was taken along with other three writpetitions and allowed by learned Single Judge of the HighCourt vide its judgment dated 31.07.2007.

Fiv.The learned Single Judge held that appellants shall bedeemed to be appointed under 1972 Rules and benefitsflowing there from shall be admissible to the appellant asper 1972 Rules. The earlier judgment of the High Courtdated 08.04.1986 in Writ Petition No.3236 of 1995,Ishwar Singh and others versus State of Punjab, wasGrelied by learned Single Judge. Aggrieved against thejudgment of learned Single Judge dated 31.07.2007, Stateof Punjab filed LPA No.213 of 2007. LPA No.19 of 2008and LPA No.20 of 2008 were decided along-with LPANo.213 of 2007, by judgment and order of the DivisionBench dated 28.07.2009. LPA filed by the State of Punjab G

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was allowed. Judgment of the learned Single Judge wasset aside and the writ petition filed by the appellant wasdismissed. Aggrieved by the judgment of Division Bench,these appeals have been filed.

3. We have heard Shri Gurminder Singh, learned senior counselappearing for the appellant. Shri Karan Bharihoke has appeared on behalfof State of Punjab and Shri Vineet Bhagat has appeared for respondentNos.1 to 4.

4. Learned senior counsel for the appellants contends that thevacancies against which appellants were appointed in the year 1986were vacancies which were all in existence prior to enforcement of1982 Rules, hence, 1972 Rules were applicable and the appellants wereentitled for the benefit of Rule 4, i.e., their seniority is to be determinedgiving the benefit of military services which should count towards fixationof pay and seniority. It is submitted that learned Single Judge has rightlyallowed the writ petition of the appellant.

5. It is further submitted that the High Court vide its judgmentdated 08.04.1986 in Writ Petition No.3236 of 1995, Ishwar Singhand others versus State of Punjab has already held that fordetermination of vacancies reserved for Armed Forces Personnel, 1972Rules shall be applicable and the reservation of vacancies shall be TwentyPercent as per 1972 Rules and not Fifteen Percent as per 1982 Rules.He submits that the judgment has become final and it is not open to Stateto contend that 1972 Rules shall not be applicable for determining theseniority of the appellant.

6. Learned counsel appearing for the State refuting the submissionsof learned counsel for the appellants contends that in the present case,the advertisement was issued after enforcement of 1982 Rules andappellant had applied in pursuance of advertisement which was issuedunder 1982 Rules and the examination and select list were publishedthereafter appointing the appellant in the year 1986 only. For determinationof the seniority, the appellant cannot rely on 1972 Rules. The benefitwhich was available under Rule 4 of 1972 Rules is no longer availableunder 1982 Rules, hence, the seniority of ex-servicemen appointed under1982 Rules have to be determined as per the Rules applicable to thePCS(Executive), i.e., Punjab Civil Service (Executive Branch) Rules,1976.

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A7. Learned counsel for the respondent Nos.1 to 4 submits thatrespondent Nos.1 to 4 have already retired from the service.8. We have considered the submissions of learned counsel for theparties and have perused the record.

9. The only question which needs to be considered and answeredBin this appeal is as to whether the appellant for determination of hisseniority was entitled for the benefit of Rule 4 of 1972 Rules. Rule 4 of1972 Rules provided as follows: - “ 4.(1) The period of military service rendered after attaining the Cminimum age prescribed for appointment to the Punjab Civil Service (Executive Branch), by the candidates appointed against reserved vacancies under rule 2, shall count towards fixation of pay and seniority in the said Service, subject to the condition that –

(a) The date of appointment in the PCS (Executive Branch) in respect of such candidates as are appointed Dagainst the reserved vacancies under rule 2 shall be determined on the assumption that they joined the service under the State Government at the first opportunity they had after joining the military service or training prior to the Commission; (b)The inter se seniority of the military personnel determined by the Punjab Public Service Commission Eshall not be disturbed;

(c) a military personnel appointed as a result of an earlier selection shall be senior to a military personnel appointed as a result of subsequent selection irrespective of the period of military service to his credit; and F(d)all candidates appointed against the reserved vacancies under rule 2 shall rank below the candidates appointed by direct recruitment in the year to which the former candidates are allotted.”

Fixation of Pay Seniority And retirement benefits

10. The 1972 Rules were superseded by another Rules framedunder Proviso to Article 309 read with Article 234 and 318 of theGConstitution of India, namely, Punjab (Recruitment of Ex-servicemen)Rules, 1982. Rule 4 of 1982 Rules is to the following effect: -

4. Reservation of Vacancies.(1) Subject to the provision of rule3, fifteen percent of the vacancies to be filled in by directappointment in all the State Civil Services and Posts connectedH

with the affairs of the State of Punjab shall be reserved for beingfilled in by recruitment of Ex-servicemen; “Provided that where an Ex-serviceman is not availablefor recruitment against a reserved vacancy, such a vacancy shallbe reserved to be filled in by recruitment of the wife or onedependent child of an Ex-serviceman, who has neither beenrecruitment against reserved vacancy nor is eligible to be recruitedagainst such vacancy under these rules; “Provided further that the total number of reservedvacancies including those reserved for the candidates belongingto the Scheduled Castes, Scheduled Tribes and Backward Classesshall not exceed fifty percent of the posts to be filled in a particularyear.”

(2) Where a reserved vacancy remains unfilled for non availabilityof a person eligible for recruitment under these rules such vacancymay be filled in temporarily from any other source in accordancewith the rules regulating the recruitment and the conditions ofservice of persons appointed to such posts as if the vacancy wasnot reserved; Provided that the reserved vacancy so filled in shall becarried forward for the subsequent occasions arising during atleast two years in each of which such occasion arises forrecruitment, where after the vacancy in question shall be treatedas un-reserved.”

11. As noted above, Rule 4 of 1972 Rules provided that period ofmilitary service rendered by a candidate appointed against reservedvacancy shall count towards fixation of pay and seniority, which provisionwas no longer continued in Rule 4 of 1982 Rules, However, the provisionfor reservation of vacancies was maintained to the extent of fifteenpercent of the vacancies. Rule 10 of 1982 Rules has provision of Repeal,which is as follows: - “10. Repeal – The following rules are hereby repealed-

1. The Punjab Government National Emergency (Concession)Rules, 1965;

2. The Demobilized Armed Forces Personnel (Reservation ofVacancies in the Punjab State Non-Technical Services) Rules,1968; A

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A3. The Demobilized Indian Armed Forces Personnel (Reservationof Vacancies in the Punjab Civil Services) (Executive Branch)Rules, 1972; and

4. The Released Indian Armed Forces Personnel (Determinationof Eligibility for promotion) Rules, 1977.”

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12. From the facts brought on the record, it is clear that theadvertisement against which the appellant was appointed was issued on01.05.1982, i.e., after the enforcement of 1982 Rules. The appellantwas appointed in pursuance of the advertisement by appointment orderdated 18.03.1986. Although 1972 Rules have been repealed but in theC1982 Rules, as per Rule 9(3), nothing in 1982 rules was to be construedas depriving any person of any right which had accrued under the rulesin force immediately before the commencement of the Rules 1982.Before enforcement of 1982 Rules admittedly, 1972 Rules were enforced.

13. The much reliance has been placed by the learned counsel forDthe appellant on earlier judgment of learned Single Judge in W.P.No.3236of 1995, Ishwar Singh and others versus State of Punjab. In theabove case, one of the questions was as to whether for the vacancieswhich were advertised under 1982 Rules, the reservation for the ArmedForces Personnel shall be twenty percent or fifteen percent and whetherthe benefit of ex-servicemen as contained in 1982 Rules shall be applicableEwith respect to vacancies which arose prior to enforcement of 1982Rules. In paragraph 50 of the judgment, following was observed: - “50. Both the aforesaid decisions fully support the petitioners forthe contention that the reservation quota in the vacancies, whichoccurred before 12.02.1982 would be 20 percent for the Ex.FServicemen and from 12.02.1982 it would be 15 percent. Thecarry forward rule under the 1972 rules as well as the 1982 rulestill before amendment of 1984 was far a period of four years andit was amended by the 1984 amendment, which came into effectfrom 30[th] April, 1984. Therefore, when the advertisements wasGmade on 01.05.1982 for recruitment, the left over vacancies from1979 upto 1982 had to be taken into consideration and similarlythe vacancies which occurred thereafter would also be taken notof for providing the relevant quota of 10 percent or 15 percent, asthe case may be. As noted above, on the basis of the posts wouldbe made available to the category of Ex. Servicemen. TheHvacancies which occurred on or after 30[th] April, 1984 would be carried forward on the basis of the 1984 amended rules. Whereasearlier unfilled vacancies would be carried forwarding under the1972 and 1982 un amended rules...”

14. The above judgment has attained finality. The learned SingleJudge took the view that since the vacancies were vacancies from 1979upto 1982, the twenty percent reservation as provided under 1972 Rulesshall govern. The judgment of Ishwar Singh, thus, only had laid downwith regard to percentage of reservation of the vacancies, which washeld to be twenty percent in view of the vacancies occurring prior to theenforcement of 1982 Rules.

15. The above proposition cannot be extended to the determinationof the seniority. The question of determination of seniority comes onlyafter a person enters into service and becomes a member of service.Under 1972 Rules, it cannot be held that the fact that vacancies were inexistent prior to enforcement of 1982 Rules, and appointment of a personsubsequent to enforcement of 1982 Rules, he shall be entitled to thebenefit of Rule 4, i.e., to add his military services for the purposes of hisseniority, especially when the benefit which was available for the purposesof seniority under Rule 4 of 1972 Rules is no longer continued under1982 Rules, as noted above.

16. We have noticed that 1982 Rules specifically repealed the1972 Rules, thus, the Rule 4 of 1972 Rules which provided for benefit ofseniority of Army service was no longer entitled to be counted forseniority for personnel who was appointed after enforcement of 1982Rules. The judgment of Ishwar Singh of Punjab and Haryana HighCourt which only determined the percentage of reserved vacancies whichwere to be reserved for Army personnel could not be held to be relevantregarding determination of seniority in the facts of the present case.

17. We may notice the judgment of this Court in R.K. Barwaland others versus State of Himachal Pradesh and others, (2017)16 SCC 803. This Court had occasion to consider in the above caseDemobilized Armed Forces Personnel (Reservation of Vacancies in theH.P. State Non-Technical Services) Rules, 1972, where Rule 5 providedfor counting of approved military service for purpose of determiningseniority on joining civilian post. The Court held that persons joining ArmedForces during emergency period vis-à-vis persons joining Armed Forcesduring ‘peacetime’, there is a reasonable classification and benefit whichwas available for adding seniority to persons joining Armed Forces during AB

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Aemergency cannot be extended to persons joining Armed Forces duringpeacetime.

18. This Court held that normal rule of fixing of seniority is withreference to the date of entry into the service and there has to be veryweighty reason for departure from this rule. Following observations wereBmade in paragraph 27: - “27... After all, if the benefit of armed force services rendered isextended to each and every ex-serviceman for the purpose ofseniority, it may result in far reaching implications. Examples inthis behalf are given by the private respondents, as noted above.CThis Court cannot shy away from the normal rule of fixing theseniority, as enunciated in the cases of Direct Recruitment ClassII Engineering Officer’s Association as well as Aghore Nath Dey,i.e. the seniority of an officer in service is determined withreference to the date of his entry in the service, which is consistentwith the requirement of Articles 14 and 16 of the Constitution.DThere have to be very weighty reasons for departure from thisrule. Otherwise, it may disturb the equilibrium by making manydirect recruits junior to such ex-servicemen even when such directrecruits joined the services in civil posts much earlier than the ex-servicemen. Thus, an exceptional category carved out for givingEsuch a benefit only to those who were commissioned in ArmedForces during war time cannot be extended to each and everyex-serviceman merely because he has served in Armed Forces.”

19. Under 1982 Rules, there is no indication that the benefit whichwas available to Armed Forces Personnel under Rule 4 of 1972 RulesFare continued or any right has been accrued on the appellant under 1972Rules which he is entitled to avail regarding seniority.

20. Learned Single Judge in its judgment dated 31.07.2007 hasheavily relied on Ishwar Singh’s case holding that with regard toreservation of vacancies, i.e., 1972 Rules have been made applicable,Gthe 1972 Rules also need to be applied for determination of seniority.The percentage of vacancies which are reserved for Armed ForcesPersonnel were held to be calculated as per 1972 Rules since thevacancies have occurred prior to 1982 Rules. The above judgment oflearned Single Judge in Ishwar Singh cannot be relied for determinationof seniority which is entirely a different concept and determination ofHseniority is governed by seniority rules enforced at the time of appointment of the personnel. The view of learned Single Judge that the appellantshall be deemed to be appointed under 1972 Rules cannot be approved.

21. The Division Bench has rightly taken the view that savingclause under Rule 9(3) does not extend any benefit to the appellantsince there is nothing to show that any right of weightage for armyservices for seniority has already accrued before he joined services.Saving clause in Rule 9(3) cannot be availed by the appellant. We fullyendorse the above view of the Division Bench taken in the impugnedorder.

22. Another judgment relied by the appellant is the judgment ofPunjab and Haryana High Court in State of Punjab and other versusDr. Balbir Bharadwaj, LPA No.168 of 2004, decided on 29.01.2007has rightly been distinguished by the Division Bench in the impugnedjudgment.

23. We, thus, hold that the appellant was not entitled to claimbenefit of military service for purpose of seniority for appointment toPunjab Civil Service(Executive Branch) since the benefit of Rule 4(1)of 1972 Rules was not continued in 1982 Rules. His seniority was to begoverned by statutory rules applicable after the enforcement of 1982Rules.

24. We do not find any error in the judgment of the Division Benchof the High Court. The appeals are dismissed.

Devika Gujral

Appeals dismissed.

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