Research › Search › Judgment

Himachal Pradesh High Court · body

2006 DIGILAW 277 (HP)

MITTER DEV v. H. R. T. C.

2006-09-07

M.R.VERMA

body2006
JUDGEMENT Mr. Verma, J. (Retd.) Chairman: - The applicant has in this original j application claimed the following reliefs:- A) that memo Annexure PA (whereby the representation of applicant to grant him the benefit of Army Service under the Rules was rejected) may be quashed. B) That the respondents may be directed to fix pay of the applicant after counting his army service, and C) That the respondents be directed to give all consequential benefits and retrial benefits to the applicants. 2. The relevant admitted facts of the case are that the applicant was enrolled in the Army on 7.2.1968 and was discharged on 28.2.1983. He was selected for appointment as a driver in HRTC through Employment Exchange in open competition against open quota and was kept on the penal which led to his appointment as driver on daily wages w.e.f.24.12.1984 and was appointed as such on regular basis w.e.f. 21.8.1936. While fixing his pay, his pay as in the Army was protected. Since his selection/appointment was not against a vacancy reserved for ex-servicemen, he was hot given the benefit of such service as permissible under the Demobilized Armed Forces Personnel Rules 1972 (hereinafter referred to as the Rules.) The applicant represented vide Annexure PB to claim the benefits of army service but such representation was dismissed vide Annexure PA. The applicant has since retired w.e.f. 31.7.2005. 3. The applicant claims that denial to him of benefit of army service as permissible under the Rules is violative of the instructions of the Govt. of India, therefore, is illegal. Hence, this original application. 4. The defence taken by the respondents in the reply is that the applicant was selected and appointed against open quota after giving relaxation and his pay as in the army was protected while fixing his pay and thereby he was getting higher pay than the pay he was getting in the army, therefore, he is not entitled to the relief claimed. 5. I have heard the learned counsel for the applicant and the learned Dy. Advocate General for the respondents. 6. In view of the selection and appointment of the applicant against unreserved vacancy, he was undoubtedly not entitled immediately on appointment for the benefit of army service under the Rules. 5. I have heard the learned counsel for the applicant and the learned Dy. Advocate General for the respondents. 6. In view of the selection and appointment of the applicant against unreserved vacancy, he was undoubtedly not entitled immediately on appointment for the benefit of army service under the Rules. Despite this the service conditions of the applicant being an Ex-serviceman were to be regulated by the rules and clarification/instructions issued there under from time to time. One of such instructions relevant to the case is contained at page 791 of the hand Book on Personnel Matters (Vol.1) which reads as under:- "I am directed to address you on the subject noted above and to say that the various concessions granted under the Demobilized. Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972, notified vide this Department Notification of even number, dated the 28th March, 1972 are admissible only when the persons concerned are selected against the reserved vacancies. In this connection it is clarified that in order to remain within the scope of the relevant Rules relevant Rules, referred to above, the concessions in question cannot be extended against un-reserved vacancies. But where a Released Army Personnel has qualified against a non-reserved vacancy and has been appointed against a general un-reserved vacancy in the first instance he should be given an option (only at the time of first appointment) to accept a reserved vacancy even if it occurs subsequent to his appointment. This will automatically give the benefit of concessions like seniority etc., in the manner specified in the rules ibid." 7. On a bare reading of the above instructions it is clear that even in a case where an ex-servicemen an is selected and appointed against an unreserved civil post for the first time he should be given an option to accept a reserved vacancy even if it occurs subsequent to his appointment. The instructions ibid apparently are intended to give benefit of rules to those ex-servicemen who are selected and appointed against unreserved posts but by necessary implications these instructions will result even in eliminating discrimination in the matter of civil employment to the ex-serviceman. 8. It is not the case of the respondents that in the matter of appointment they have not adopted the Rules and instructions thereof under. 8. It is not the case of the respondents that in the matter of appointment they have not adopted the Rules and instructions thereof under. It is also not their case that the requisite option as per the instructions ibid was given by them to the applicant and was not accepted by him. Therefore, denial of the benefit of army service to the applicant as permissible under the Rules and instructions ibid is unjustifiable and illegal. 9. In view of the instructions ibid the respondents should have given the option to the applicant immediately after his appointment. It is implicit in the act of the applicant making representation Annexure PB that had such option been given he would have accepted it because in the absence of option having been given to him, he had claimed the benefits by making the representation. Thus, the respondents were duty bound to treat the applicant as having been appointed against a post reserved for ex-serviceman from the date from which a vacancy against such a post became available. 10. The. Claim for consequential monetary benefit however calls for determination subject to law of limitation therefore; the applicant will be entitled to the consequential arrears, if any, only from the date immediately one year before the filing of the original application. 11. In view of the above discussion and findings Annexure PA is quashed and set aside. The respondents are directed to treat the applicant as having been appointed the post reserved for an ex-servicemen from the date on which vacancy against such became available after the appointment of the applicant and then fix his pay by giving him the benefit of the Rules regarding counting of his army service and on the basis of such fixation and subsequent fixations as per the prescribed scales, proceed to... .the amount of arrears on difference of salary paid and payable for the period w.e.f. 3.8.1992 till the date of his retirement and pay the difference to the applicant. The respondents are further directed to re-determine the pension and other retrial benefits of the applicant in view of the consequences of this orders. .the amount of arrears on difference of salary paid and payable for the period w.e.f. 3.8.1992 till the date of his retirement and pay the difference to the applicant. The respondents are further directed to re-determine the pension and other retrial benefits of the applicant in view of the consequences of this orders. The process regarding compliance of these order/directions be completed and all payable dues be paid within three months form the date of passing of this order failing which the respondents will be liable to pay interest on the payable amount at the rate of 9% per annum from the date of the amount becoming payable till the date of payment thereof. 12. This original application is disposed of in terms of the above orders with no orders as to costs.