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2000 DIGILAW 166 (HP)

GOVIND RAJ GAUR v. STATE OF HIMACHAL PRADESH

2000-07-07

A.L.VAIDYA, V.K.BHATNAGAR

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ORDER V.K. Bhatnagar, Member (Adm.)—The applicant is serving in the Excise & Taxation Department as an Excise and Taxation Inspector. He joined the Army in December 9, 1962 and was discharged on August 1, 1967. He was appointed in the direct recruitment on January 2, 1971 against the vacancy reserved for Ex-serviceman. He approached the respondent department for counting of his Army Service for the purpose of seniority and fixation of pay in accordance with the Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972. However, the respondents did not fix the seniority of the applicant by treating the applicant as an ex-serviceman. 2. In the present application following reliefs have been claimed: (i) the applicant be declared senior to the respondents 3 to 16. (ii) the respondents may be directed to count the military service of the applicant for all benefits i.e. seniority, promotion and pay fixation. 3. In their reply the respondents 1 and 2 have resisted the claim of the applicant mainly on the ground that the applicant is not covered in the definition of Ex-serviceman as given in Rule 1 of the Booklet on Service Matters relating to Ex-serviceman. The respondents 1 and 2 have stated that the term "Ex-serviceman" for the purpose of Demobilished Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services Rules has been defined as under : "Ex-serviceman means a person who has served in any rank (whether as a combatant or as a non-combatant) in the Armed Forces of the Union, including the Armed Forces of the Former Indian States but excluding, the— (a) Assam Rifles; (b) Defence Security Corps; (c) General Reserve Engineering Forces; (d) Lok Sahayak Sena; and (e) Territorial Army. for a continuous period of not less than six months after attestation, and (i) has been released, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency, or has been transferred to reserve pending such release; OR (ii) has to serve for not more than six months for becoming entitled to be released or transferred to the reserve; OR (iii) has been released at his own request, after completing five years service in the Armed Forces of the Union." 4. It has been stated that the applicant does not fall in this definition because according to the documents he had not completed the minimum tenure of five years in the Army to get the benefit under Demobilised Armed Forces Rules. It has also been stated that as per Recruitment & Promotion Rules for the post of Excise and Taxation Inspector, the seniority list has to be finalised on the basis of qualifying departmental examination on the date of reply this seniority list was still under finalisation in terms of judgment of this Tribunal in TA-647 of 1986, Prem Nath Sood v. State of Himachal Pradesh. It was, therefore, pleaded that at that point of time the applicant has no cause of action. 5. The learned Counsels for the parties have been heard and pleadings have been gone into. 6. There is no dispute that the applicant had been discharged from Army on compassionate grounds before completion of five years of service under Item No. Ill (iv) of the Table Annexed to Army Rule 13, after serving for four years and 235 days. Under the above quoted provisions this discharge as per these Rules is at the request of the applicant and as such the applicant does not really fall in the definition of the Ex-serviceman. 7. The learned Counsel for the applicant has cited the judgment of the Honble Supreme Court in AIR 1985 SC 1263, in case of Raj Pal Sharma and others v. State of Haryana and others, while dealing with the similar situation. In that case, the Governor of Haryana by a notification dated November 5, 1976 in exercise of powers conferred under Article 309 of the Constitution had amended the Punjab Rules by inserting a proviso to Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965 (which had also been adopted by the State of Haryana). By these amendment, persons who had been released from Military service on compassionate grounds, were singled out for being deprived of the benefits of that Rule. This proviso to Rule 4 reads as follows: "Provided that a person who has been released from military service on compassionate grounds shall not be entitled to any concession under this rule." 8. By these amendment, persons who had been released from Military service on compassionate grounds, were singled out for being deprived of the benefits of that Rule. This proviso to Rule 4 reads as follows: "Provided that a person who has been released from military service on compassionate grounds shall not be entitled to any concession under this rule." 8. The petitioner in that case approached the Honble Supreme Court and the Honble Apex Court allowed the petition with following observations: "......What Article 14 prohibits is a class legislation and not reasonable classification for the purpose of legislation. If the legislature takes care to reasonably classify persons for legislative purposes and it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons. In order, however, to pass the test of permissible classification two conditions must be fulfilled: (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. In the instant cases the petitioners are all ex-military personnel. They have also been released from military service. All those persons released from military service constitute one class and it is not possible to single out certain persons of the same class for differential treatment. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived of the equal opportunity. The amendment, therefore, is violative of Articles 14 and 16 of the Constitution and, therefore, bad." 9. In view of above position the present case is fully covered by this judgment of the Honble Supreme Court. Therefore, the applicant cannot be deprived of the benefits for which he is entitled on account of his service in the Army. 10. As far as the next objection taken by the respondents 1 and 2 about non finalisation of seniority in the cadre of Excise & Taxation Inspectors is concerned, it was learnt from the learned Additional Advocate General that the same has been finalised. 11. 10. As far as the next objection taken by the respondents 1 and 2 about non finalisation of seniority in the cadre of Excise & Taxation Inspectors is concerned, it was learnt from the learned Additional Advocate General that the same has been finalised. 11. In view of above discussion the present application is accepted and the respondents are directed to fix the seniority of the applicant by giving him the benefit of military service under the Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972 and the provisions of Recruitment and Promotion Rules. The parties are, however, left to bear their own costs. Application allowed.