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Himachal Pradesh High Court · body

2001 DIGILAW 24 (HP)

ANIL SOOD v. STATE OF HP

2001-01-21

AVTAR SINGH, NARINDER SINGH THAKUR

body2001
JUDGMENT Narinder Thakur Member, (J): The present OA has been filed jointly by 5applicants who are working as Additional District Attorneys or equivalent seeking mainly the following relief:- (i) " That the impugned words" seniority and" appearing in Rules 5(i) of the DP Rules at Annexure-A/2 may kindly be struck down as violative of Articles 14 and 16 of the Constitution of India, (b) That the deemed dates of appointments assigned to respondents 4 to 6 in the impugned seniority list at Annexure-A/3 may be declared as be declared illegal and the respondent Department may be directed to assign seniority to the respondents No. 3 to 6 at appropriate place in accordance with the dates of their appointment as ADA or the same may be directed to assigned from the dates these respondents acquire eligibility for the post in question in accordance with the relevant R&PL Rules with all consequential benefits to the applicants. (c) That if during the pendency of this application any of the private respondent is further promoted on the basis of impugned seniority list, in that event the applicants may also be held entitled to consideration for further promotion from the date of promotion of such junior (s), with all consequential relief (s).” 2. The facts leading to file the present original Application are that all applicants No.1 to 3 have joined the department of prosecution on 1.6.1984, applicant No.4 on 7.11.1983 and the applicant No.5 has joined on 20.7.1990 as Additional District Attorneys. The private respondent No. 3 to 6 are all Ex-servicemen and their particulars are as under- R-3 R-4 R-5 R-6 LLB 1983Gharwal) 1980 (Allahabad) 1984(Mumbai) 1978 (Allahabad) Enrolled as An Advocate Approved 27.10.1987 28.9.1968 to 15/10/1987 Aug. 1986 released on 29.4.1986 8.4.1988 Not known Oct. 1995 30.1.95 to 31.1.1995 Military Service Joined as ADA 1.6.1994 16.4.1993 20.9.1996 Sep. 98 Deemed date of joining as ADA 9.10.78 22.7.90 21.3.84 Not known 3. It is further stated in the OA that as per R&P Rules for the post of ADA (Annexure-A/1.) a candidate must posses the degree of LLB and... years experience of practice at the bar. 4. However, as far as the respondent Nos. 3 to 6 are concerned, they being Ex-servicemen and also governed by the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 as far as making of reservations in the cadre of AD. years experience of practice at the bar. 4. However, as far as the respondent Nos. 3 to 6 are concerned, they being Ex-servicemen and also governed by the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 as far as making of reservations in the cadre of AD. As is contended a tentative seniority list of the ADAs as on 1.7.1997 was circulated vide office memorandum dated 21.7.1998 wherein deemed dates of appointment were assigned to the respondents No. 4 to 6 on the basis of the impugned provision in the Rules as Annexure-A/2. 5. The main contentions of the applicants in the original Application is that the provision in the Rule 5(1) of the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 is most unreasonable, arbitrary, irrational and ultra-vires the provisions of articles 14 and 16 of the Constitution of India. It is also contended that if these persons who joined armed forces during emergency when the nation faced aggression, are treated as special class for extending them any benefit in the matter of seniority, none can make any grievance and the classification is valid on the touch a stone of Articles 14 and 16 of the Constitution. But the impugned provisions in the above rules does not extend this benefit to those ex-servicemen alone who joined service during emergency/war period, but gives benefit to all ex-army personnel whether they joined army in normal period on during emergency. Those who joined service during normal period service during normal period army as a career, at the most the ex-servicemen can be given seniority from the date of acquiring qualifications as per R&P Rules. 6. The respondents have filed replies and the respondent State in its reply has stated that the seniority of the respondent Nos. 3 to 6 has been rightly assigned in accordance with the Rules 5 of the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972. It is also stated that these Rules have been framed under Article 309 of the Constitution of India. There is no violation of the Articles 14 and 16 of the Constitution of India as alleged by the applicants. It is also stated that these Rules have been framed under Article 309 of the Constitution of India. There is no violation of the Articles 14 and 16 of the Constitution of India as alleged by the applicants. It is also submitted in the reply that it is exclusively within the domain of the Executive as to what shape it ought to have given to the Rues. It is also stated in the reply that the minimum educational qualification should be possessed by the Ex-servicemen at the time of submitting his application and it is immaterial as to on which date an ex-servicemen acquired the educational and other essential qualifications. 7. In the reply the respondent No.3 has also taken the plea of time-barred. The respondents No.4 and 5 have filed joint reply and have submitted that there is nothing wrong in the rule 5(i) of the Demolished Armed Forces Personal (Reservation of vacancies in the Himachal State Non-Technical Services) Rules, 1972. 8. In the reply, the respondent No.6 has submitted that the Indian Armed Forces have not only defended the nation during 1962 China Aggression and 1965 and 1S71 wars with Pakistan but have also been continuously fighting the internal insurgences, terrorism and other internal security threats. Therefore, there is no unreasonableness in the Rule 5(l) of the Demolished Armed Forces Personnel (Reservation of vacancies in the Himachal State No-Technical Services) Rules, 1972. The respondents were required to hold the requisite qualification at the time of appointment to the civil post. 9. We have heard the learned counsels of the respective parties at length and perused the pleadings carefully. Now we proceed to hold as follows: 10. The question for our determination is whether the impugned words "seniority and u appearing in Rule 5(i) of the Demolished Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972,are un-reasonable arbitrary, ultra vires Articles 14 and 16 of the Constitution of India. 11. The learned counsel for the applicant has drawn our attention to the judgment of the Honble Apex Court reported in AIR 1994 SC 1722 Ram Janam Singh Vs. 11. The learned counsel for the applicant has drawn our attention to the judgment of the Honble Apex Court reported in AIR 1994 SC 1722 Ram Janam Singh Vs. State of U.P. He has drawn our attention particularly to the following paras:- "10......It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service, which will be consistent with the Article 14 and 16 of the Constitution, of course, if the circumstances so require group of persons can be treated a class separate from the rest, for any preferential or beneficial treatment while fixing their seniority. But, whether such, group of persons belong to a special class for any special treatment, in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 309 of the Constitution." "14. Can it be said that the persons who had joined Army after the declaration of emergency due to foreign aggression and those who joined after the war came to an end stand on the same footing. Those who joins Army after revocation of emergency joined Army as a career, it is well known what many persons, who joined Army service during the foreign aggression could have opted for other career of service. But the nation itself being under peril, impelled by the spirit to serve the nation, they opted for joining Army where the risk was writ large. No one can dispute that such persons formed a class by themselves and by Rules aforesaid an attempt has been made to compensate those who returned from war if they compete in different service. According to us, the plea that even persons, who joined Army service after cessation of foreign aggression and revocation of emergency have to be treated like persons, who have joined Army service during emergency, due to foreign aggression is a futile plea and should not have been accepted by the High Court. According to us, the plea that even persons, who joined Army service after cessation of foreign aggression and revocation of emergency have to be treated like persons, who have joined Army service during emergency, due to foreign aggression is a futile plea and should not have been accepted by the High Court. It need not be impressed that whenever any particular period spent in any other service by a person as added to the service to which such person joins later, it is bound to affect the seniority of persons who have already entered in the service. As such any period of earlier service should be taken into amount for determination of seniority in the later service only for some very compelling reasons, which stand the test of requsonableness and on examination can be held to be free form arbitrariness". 12. In the above judgment the Honble Apex Court has been dealing with the UP. Non-Technical (Class-11) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973. R.3(i) - Non-Technical (Class-11) (Group-B) Services (Appointment of Demobilised Officers) Rules, 1980. On perusal of whole judgment the facts revealed are that the Government of U.P has framed three sets of Rules in exercise of powers under the proviso to Article 309 of the Constitution wherein the Uttar Pradesh Non-Technical (Class-11) services (Reservation of Vacancies for the Demobilised Officers) Rules, 1968 were framed. These Rules were to remain in force for a period of five years from the date of their commencement. Rule 2(1) provided that 20% of the permanent Vacancies in a Non-Technical (Class-11) service to be filled up by direct recruitment through competitive examination in any year, shall be reserved for being filled in, “by the Emergency commission Officers and the Short Service Commissioned officers of the Armed Forces of the Union, who were commissioned on or after November 1, 1962, and who are released at any time thereafter." Rule 4 provide the manner in which the seniority of candidates, who were appointed against the aforesaid reserved vacancies, was to be determined. The aforesaid Rules were substituted by the Uttar Pradesh Non-Technical (Class-11) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973, These Rules were also to remain in force of a period of five years from the date of their commencement. The aforesaid Rules were substituted by the Uttar Pradesh Non-Technical (Class-11) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973, These Rules were also to remain in force of a period of five years from the date of their commencement. Rule 3 reserved 10% of the permanent vacancies in all Non-Technical (Class-11) services, to be filled substantively by direct recruitment through competitive examination in any year for "the Disabled Defence Officers, Emergency Commissioned Offers and the Short Service Commissioned Officers of the Armed Forces of the Union, who were commissioned after November 1,1962, but before January 10, 1968, and again on or after December 3, 1971 and released at any time thereafter." Regarding the seniority of candidates appointed against aforesaid reserved vacancies, It was said in Rule 6 that seniority "shall be determined on the assumption that they entered the service concerned at their second opportunity, of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination. The aforesaid rules were again substituted by the Uttar Pradesh Non-Technical (Class-11) (Group-B) Services (Appointment of Demobilised Officers) Rule, 1980, which came into force with effect from August 6, 1978. I Rule 3(b) " Demolished Officer" was defined to mean Disabled Defence Service officer, Emergency Commissioned officer and the Short Service Commissioned officer, of the Armed Forces of the Union who was Commissioned on or after November 1,1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter, in Rule 5 it was said that seniority of such persons shall be determined on the assumption that they entered the service concerned at the second opportunity of competing for recruitment, and they shall be assigned the same year of allotment, as to successful candidates of the relevant competitive examination. It is in this back ground that one ex-serviceman who joined army on 6.9.1970 fell out side of preview of these rules and he filed a writ petition before the Honble High Court of Allahabad alleging that these Rules were discriminatory as well as violative of Articles 14 and 16 as it denies benefits to those who joined Army between the period 10th January, 1968 to 3rd December, 1971. The Honble High Court of Allahabad allowed the writ petition of the Ex-servicemen by holding that exclusion of above period was wholly arbitrary and discriminatory in nature. The Honble High Court of Allahabad allowed the writ petition of the Ex-servicemen by holding that exclusion of above period was wholly arbitrary and discriminatory in nature. Shri Ram Janam Singh, who belonged to UP State Civil Service challenged these orders of the Honble High Court of Allahabad. It is in this background that the Honble Apex Court has not struck down any of the ibid rules. The Honble Apex Court has also observed that: "10.....of course, if the circumstances; so require a group of persons can be treated a class separate from the rest, for any preferential or beneficial treatment while fixing their seniority. But, whether such, group of persons belong to a special class for any special treatment, in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 309 of the Constitution..." 13. The sum and substance of the above judgment is that the Honble Apex Court has upheld the action of the State Government of UP. in excluding the period between 10 January, 1968 to 3rd December, 1971 for extending the benefit under their rules. The State Govt. is thus held to be competent to exclude or include any period for granting any benefit as a separate class to ex-servicemen. The above citation therefore, does not help the applicants especially when there is specific provision in the H.P. Demolished Armed Forces personnel Rules, 1972 based on reasonable classification. 14. The Honble Apex Court in 1999 (3) SCC 217 State of H.P. Vs. Shri P.D. Attri, has observed that each state has its own individualistic way of governance under the Constitution. One state is not bound to follow the rules and Regulations applicable to the employees of the other State or it is not bound to follow very change brought in the rules and regulations in the other State. 15. The Demobilises Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical services) Rules, 1972 have been framed by the Government of H.P. in exercise of he powers conferred under Article 309 of the Constitution of India for the benefit of Ex-Servicemen. 15. The Demobilises Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical services) Rules, 1972 have been framed by the Government of H.P. in exercise of he powers conferred under Article 309 of the Constitution of India for the benefit of Ex-Servicemen. These Rules have been made with a view to compensate the Ex-Servicemen for their last opportunity because of their joining the Armed Forces to serve the nation. The Service in the Army cannot be equated with the service render in the civil Side. The competent legislative authority while legislating the rules under Article 309 of the Constitution is the best judge as to what should be the minimum qualifications and other conditions of service of its employees and this Tribunal cannot go into this question as these belongs to the exclusive domain of concerned Legislative authority of the State Government. So long such legislative decision does not suffer from the vice of colourable exercise of powers, arbitrary in any manner and the classification so made is based on no reason thereby offending Articles 14 and 16 of the Constitution, once it is held that the classification in respect of ex-servicemen is reasonable and can stand the test of reasonableness and on examination is held to be free from arbitrariness the Court should not over step its limit and tinker with the legislative decision of the State Government. We, therefore, do not intend to interfere with condition of service as has been prescribed by the competent authority for appointment of ex-servicemen by reservation in State Service. The respondent State has unambiguously stated in para-16 of the Booklet on service maters relating to Ex-servicemen December, 1983 issue that the Ex-servicemen an candidate is required to possess the requisite minimum educational qualifications at the time of his selection for appointment to the civil service. Date on which the actually acquires the qualifications has no relevance. The same sand has reiterated by the State Government in the personal Hand Book, Vol.11, Chapter 18, in a Note 1 at page No. 730. Be it stated here that the soldiers are enrolled young between the age group of 18 to 21 to keep our fighting forces fit and yon to meet any eventually like the ones is Kargil. The another reason to enroll young persons is that the youths joining the Armed Forces at this age are highly motivated. Be it stated here that the soldiers are enrolled young between the age group of 18 to 21 to keep our fighting forces fit and yon to meet any eventually like the ones is Kargil. The another reason to enroll young persons is that the youths joining the Armed Forces at this age are highly motivated. And this is the Prime time of age when one is supposed to acquire the requisite qualifications. The soldiers miss this opportunity with a view to serve the nation. Neither is the condition in armed forces so congenial as to enable the soldiers to acquire any qualifications during the service. It is in this background that the framers of the Demolished Armed Forces Personal (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 have framed the impugned provision. We are conscience of the fact that whenever there is any external or internal aggression, or there is any national calamity, the whole nation look forward towards the soldiers and whom we have find wanting and failing in their duties between their training, 16. The Honble Supreme Curt in SLP (Civil) No.7413-14/91 decided on 29.1.1991 has also held that, it is not necessary that he should have been qualified to apply for the post when the first opportunity to occupy the said post became available to him while he was in military service." Our attention is drawn to the judgment of Honble high Court of Himachal Pradesh reported in 1995 (2) SLC 205 titled as Janeshwar Goyal Vs. high Court of Himachal Pradesh. In his case the Honble high court has hold that so far as the Ex-servicemen (Reservation of Vacancies in the HP Judicial Service) 1981 are concerned, it was not in the competence of the State Government to frame these Rules under Article 309 of the Constitution of India without having consulted the High Court. The similar view were expressed by the Honble Apex Court reported in (2000) 7 SCC 1 titled AC Thalwal Vs. High Court of HP. However, in the present case we are not dealing with the Rules for Judicial Services but with the Demolished Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 which have been framed under proviso to Article 309 of the Constitution of India under its legislative power. 17. High Court of HP. However, in the present case we are not dealing with the Rules for Judicial Services but with the Demolished Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 which have been framed under proviso to Article 309 of the Constitution of India under its legislative power. 17. It is also pertinent to note that the Ex-Servicemen have already been held to be belonging to the category of Other Backward Class by the Full Bench of the Honble High Court of HP. in a case titles as Mohindar Kumar Sood Vs. Himachal Pradesh Public Service Commission reported in 1982 SIC 203 observing as under: "15. The term” backward class of citizens" has also used in clause (4) of Article 16 which guarantees equality of opportunity in matters of public employment. This clause enables the State to make provisions to, make reservations for appointment of posts in favour of any backward class of citizens which In the opinion of the State is not adequately represented in the service under the State. It will be noticed that the aforementioned provisions to clause (ii) to sub-rule (9) of ruie5 uses the term "other backward classes. This term will cover all "backward classes” referred to in Article 15(4) and Art. 16(4). In Jadish Rai and others vs. State of Haryana and Others, 1977 (1) SLR 771, the Full Bench of the Punjab and Harayna High Court was called upon to determine whether the reservation of vacancies for ex-armed forces personnel is constitutionally valid or not. After reviewing the existing case law, the Bench upheld the reservation with the following observations: “...... It must be said that while the best and the most meritorious of those seeking appointment under the State should be selected, it is equally fair and equitable that a just proportion of the posts should be given to these who, because of a peculiar handicap, not so handicapped. It would be an extension of the principle of Article 16(4). It must be said that while the best and the most meritorious of those seeking appointment under the State should be selected, it is equally fair and equitable that a just proportion of the posts should be given to these who, because of a peculiar handicap, not so handicapped. It would be an extension of the principle of Article 16(4). Defence Personnel who on account of their service with the Army, the Navy and the Air Force over the years have lost opportunities for entering government service and have also on contact with ordinary civilian fife, may find it extremely difficult, on demobilisation, to compete with discipline, sacrifice, sense of public duty, initiative, loyalty and leader- ship which they would have undoubtedly acquired as members of the Defence Forces. The Stale has an undoubted obligation to provide employment to ex-servicemen who have faithfully served the interest of countrys security, ready to risk their lives. The State has an obligation to protect them from the competition of civilian applicant against whom they may not stand a chance for reasons already mentioned. The State is, therefore, justified in classifying them separately as a source of recruitment and reserving posts for them." We are in with respectful agreement with this decision and are also bound to follow it. 18. This decision of the Full Bench of the Honble High Court of Himachal Pradesh has also been upheld by the Honble Apex Court in A.C. Thalwals ibid judgment. 19. Undoubtedly a duty is cast upon the State Government to provide for the rehabilitation of the Ex-servicemen. The decision of the State Government to give the seniority to the Ex-servicemen by counting the whole of the approved military service is a conscious decision inasmuch as the respondent state has unambiguously stated in para-16 of the Booklet on service Matters relating to Ex-servicemen December, 1S83 issue that the Ex-servicemen candidate is required to possess the requisite minimum educational qualifications at the time of his selection for appointment to the civil service. Date on which he actually acquired the qualifications has no relevance The same stand has been reiterated by the State Government is the personnel Hand Book, Vol.-11, Chapter 18, in a Note 1 at page No. 730. it will not be proper for us to Legislatively overstep in the domain of the State Government and to interfere in the matter. Date on which he actually acquired the qualifications has no relevance The same stand has been reiterated by the State Government is the personnel Hand Book, Vol.-11, Chapter 18, in a Note 1 at page No. 730. it will not be proper for us to Legislatively overstep in the domain of the State Government and to interfere in the matter. By upholding the validity of legislative power of the State Government based on reasonable classification cannot be interfered with on the ground of arbitrariness, un-reasonableness as such we see no reason to interfere and to hold to the contrary in this case. By upholding the validity of the H.P. Demobilised Armed Forces Personnel Rules the moral of the serving solders is bound to be boosted, We are aware of the fact that many brave young man of State of Himachal Pradesh have sacrificed their lives in the recent past, Others are ready and willing to take challenge and this fact cannot lost sight of while deciding this important issue. 20. In these premises, we see no illegality in the impugned words "seniority and" appearing in Rule 5(i) of the Demobilised Armed Forces Personnel Rules at Annexure-A/2 and do not find the same to be violative of Article 14 and 16 of the constitution of India in any manner whatsoever, The present original Application is thus dismissed with no order as to costs. The interim stay granted on January 27, 1999 is hereby vacated.