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2011 DIGILAW 2275 (HP)

Basant Kumar v. State Of H. P.

2011-06-28

KULDIP SINGH

body2011
JUDGMENT : Kuldip Singh, J. The Petitioner has prayed for quashing of memo dated 6.6.2006 Annexure A-8 rejecting the case of Petitioner for pay fixation with further prayer that Respondents may be directed to give benefit of approved military service to Petitioner towards pay fixation and seniority as per letter dated 23.5.1975 and advice dated 17.5.1993. 2. The facts in brief are that Petitioner was enrolled in the Indian Army on 30.6.1975 and was discharged on 30.6.1999. He was selected for the post of Physical Education Teacher (PET) against a general/un-served post on 22.8.2003 even though he was eligible for the post of PET as an Ex-serviceman. The Petitioner on the basis of appointment letter dated 22.8.2003 and modified order 2.9.2003 joined on 3.9.2003 as PET in Govt. Senior Secondary School, Bhogarwan. 3. The Respondent No. 1 has framed H.P. Demobilised Armed Forces Personnel (Reservation of vacancies in Himachal State Non-Technical Services ) Rules, 1972 (for short, Rules). The Respondent No. 1 has issued letter dated 23.5.1975 and has given advice dated 17.5.1993 which provide that if an Ex-serviceman is appointed against a general/unreserved vacancy, then he should be given an option (only at the time of first appointment) to accept a reserved vacancy even if it occurs subsequently to his appointment so as to give benefit of approved military service for pay fixation and seniority against subsequent reserved post. The Respondents were bound to ask for or give an option to the Petitioner at the time of his appointment but Respondents did not either ask nor invited or called any option from the Petitioner at any time. The Petitioner of his own gave his option on 22.4.2006 alongwith other details. The Respondent No. 3, however on 6.6.2006 rejected the case of the Petitioner on the ground that as per letter dated 22.10.2003 issued by the Director, Sainik Welfare, Hamirpur, since the Petitioner was not appointed through the Ex-serviceman Cell, Hamirpur, the benefit of approved military service for pay fixation and seniority against subsequent reserved post for Ex-serviceman could not be given to the Petitioner. 4. The Petitioner submitted a representation to Respondent No. 2 on 12.8.2006 pleading therein that rejection of the case of the Petitioner was contrary to letter dated 23.5.1975 and advice dated 17.5.1993. The letter dated 22.10.2003 could not be applied to the Petitioner who joined on 3.9.2003 prior to letter dated 22.10.2003. 4. The Petitioner submitted a representation to Respondent No. 2 on 12.8.2006 pleading therein that rejection of the case of the Petitioner was contrary to letter dated 23.5.1975 and advice dated 17.5.1993. The letter dated 22.10.2003 could not be applied to the Petitioner who joined on 3.9.2003 prior to letter dated 22.10.2003. The right accrued to Petitioner on his appointment on 22.8.2003 alongwith joining dated 3.9.2003. The Respondents have filled up numerous posts of PET through Ex-serviceman Cell after the appointment/joining of Petitioner on 22.8.2003/3.9.2003, but without considering the right of the Petitioner in accordance with OM dated 23.5.1975 and advice dated 17.5.1993. The letter dated 22.10.2003 cannot be applied to the disadvantage of the Petitioner. 5. The Respondents No. 1 to 4 have contested the petition by filing reply. It has been pleaded that letter dated 23.5.1975 has been restricted vide Under Secretary (Education) to the Govt. of Himachal Pradesh, Education Department, letter dated 9.5.2002, with the directions that posts of PET reserved for Ex-serviceman be filled up only through Ex-serviceman Employment Cell. The government of Himachal Pradesh, Directorate of Sainik Welfare (Ex-servicemen Employment Cell) Hamirpur letter dated 22.10.2003 provides that while filling up the posts of PETs on batch-wise basis, the posts reserved for Ex-serviceman as per roster points may be notified to Ex-serviceman Employment Cell, Hamirpur and only those Ex-servicemen, who qualified PET test through Subordinate Selection Board against un-reserved/other posts may be absorbed after appointment against the posts of Ex-servicemen as per government letter dated 23.5.1975. The Petitioner could not be absorbed against the reserved post for Ex-serviceman as the Petitioner has been appointed on batch-wise basis against the un-reserved post for Ex-serviceman. It has been stated that option of the Petitioner has been rejected in the light of letter dated 22.10.2003 and benefit of approved military service for the purpose of pay fixation and seniority could not be given to the Petitioner. The Petitioner was appointed against un-reserved post of Ex-serviceman on batch-wise basis and therefore, as per government/Ex-serviceman Cell direction, the benefit of military service to the Petitioner could not be given. The letter dated 22.10.2003 is in continuation of government instructions dated 9.5.2002 and are applicable to appointments made on batch-wise basis against un-reserved posts of Ex-serviceman. 6. I have heard the learned Counsel for the parties. The letter dated 22.10.2003 is in continuation of government instructions dated 9.5.2002 and are applicable to appointments made on batch-wise basis against un-reserved posts of Ex-serviceman. 6. I have heard the learned Counsel for the parties. The learned Counsel for the Petitioner has reiterated the stand taken by the Petitioner in the petition. He has relied judgment dated 24.2.2011 in CWP(T) No. 14559 of 2008 titled Parkash Chand v. State of H.P. and Ors. He has submitted that Respondents have wrongly denied the benefit of letter dated 23.5.1975 and advice dated 17.5.1993. On behalf of the Respondents, it has been submitted that Petitioner was not appointed through Sainik Welfare Directorate, Hamirpur, hence, as per letter issued by the Director, Sainik Welfare, Hamirpur dated 22.10.2003, the benefit of approved military service could not be given to the Petitioner. 7. The parties are not at dispute that Petitioner is an Ex-serviceman, he has rendered some approved military service before his appointment as PET. The dispute is whether Petitioner is entitled to approved military service under the rules. There is no dispute that under the rules, Ex-servicemen are entitled to benefit of seniority and pay fixation in certain situation. The rules are applicable when an Ex-serviceman is appointed against the reserved post. 8. The letter dated 23.5.1975 at page 791 in Hand Book on Personnel Matters, Vol.I (Second Edition), Government of Himachal Pradesh Department of Personnel, provides as under: Copy of Government of Himachal Pradesh, General Administration Department letter No. 11-76/71-GA-A (Vol.II) dated the 23rd May, 1975 addressed to all Secretaries, Heads of Departments etc. ........ (Referred to in paras 18.2 and 18.4.6) Subject: Demobilised Army Personnel- Concession when recruited against un-reserved vacancies. I am directed to address you on the subject noted above and to say that the various concessions granted under the Demobilised 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, referred to above, the concessions in question cannot be extended against un-reserved vacancies. In this connection it is clarified that in order to remain within the scope of the 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. This also disposes of Home-B- Department letter No. 7-13/72-Home (B), dated the 19th February, 1975. Case -VI, page 748 of Hand Book on Personnel Matters, Vol.I (Second Edition), Government of Himachal Pradesh Department of Personnel, provides as under:- Issue:- The instructions contained in General Administration Department letter No. 11-76/71-GA-A (Vol.II) dated 23rd May, 1975 provide that where a Released Army Personnel (an ex-serviceman) is appointed against an 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. In this connection doubts were expressed whether in a case where the Department did not ask for option immediately on first appointment the option given after two or three years of the date of appointment can be entertained. Advice:- The instructions in question require the concerned Department to ask for option immediately on first appointment of an ex-serviceman against un-reserved post. In cases where the Department has erred in not asking for option in time, the incumbent is not at fault and even on his exercising option after two or three years, he has to be allowed the benefit as admissible under the General Administration Department's instructions dated 23rd May, 1975. [ (i) File No. Home-B (C) 11-7/87 of Home Department. Personnel Department's Dy. No. S.F-164/93, Advice given on 17.5.1993. (ii) File No. RDP 1-2-B(4)36/92 of R.I.D. Personnel Department's Dy. No. F. 265/A-III/93. Advice given on 16.7.1993.] 9. The Petitioner was appointed against un-reserved post. He has taken the stand that government has not called his option in terms of letter dated 23.5.1975 read with advice dated 17.5.1993 but of his own he gave his option on 22.4.2006. (ii) File No. RDP 1-2-B(4)36/92 of R.I.D. Personnel Department's Dy. No. F. 265/A-III/93. Advice given on 16.7.1993.] 9. The Petitioner was appointed against un-reserved post. He has taken the stand that government has not called his option in terms of letter dated 23.5.1975 read with advice dated 17.5.1993 but of his own he gave his option on 22.4.2006. The letter dated 9.5.1992 read with letter dated 22.10.2003 have been wrongly applied to deny the benefit of the rules to the Petitioner. The letter dated 23.5.1975 has been issued by the government, on the contrary letter dated 22.10.2003 Annexure-B placed on record has been issued by the Officer on Special Duty, Directorate of Sainik Welfare, H.P., Hamirpur. It is in the form of proposal. It nowhere indicates that it has been issued with the approval of the government. Moreover, once the Petitioner has entered the service by way of appointment as PET against un-reserved post, letter dated 23,5,1975 at once becomes applicable to his case. As per advice dated 17.5.1993 the government is bound to ask his option to accept subsequent reserved vacancy. The government has not asked his option. The Petitioner of his own has given his option on 22.4.2006. The letter dated 22.10.2003 cannot be applied to the Petitioner retrospectively inasmuch as the Petitioner was appointed on 22.8.2003/2.9.2003 and he joined on 3.9.2003. How Petitioner entered the service is not relevant. There is no allegation of misrepresentation against Petitioner. 10. It is not the case of the Respondents that after the appointment of Petitioner against un-reserved post of Ex-serviceman, no PET post of Ex-serviceman fell vacant or otherwise not filled in by the Respondents. A co-ordinate Bench in judgment dated 24.2.2011 in CWP(T) 14559 of 2008, in a case of PET appointment against general un-reserved vacancy after noticing letter dated 23.5.1975 and advice dated 17.5.1993 has directed the competent authority to offer an opportunity to the Petitioner of that case to exercise the option in terms of aforesaid government instructions and take a final decision in the matter within three months from the date of production of copy of the judgment with all consequential benefits. In that case the Petitioner had joined as PET against general un-reserved post on 21.8.2000. The Petitioner has thus made out a case for considering his case as per rules read with letter dated 23.5.1975 and advice dated 17.5.1993. In that case the Petitioner had joined as PET against general un-reserved post on 21.8.2000. The Petitioner has thus made out a case for considering his case as per rules read with letter dated 23.5.1975 and advice dated 17.5.1993. The memo dated 6.6.2006 Annexure A-8 is liable to be quashed. 11. In view of above discussion, the petition is allowed. The memo dated 6.6.2006 Annexure A-8 is quashed. The Respondents (competent authority) are directed to give benefit of rules, letter dated 23.5.1975 and advice dated 17.5.1993 to the Petitioner with all consequential benefits in the light of observations made above within a period of two months from the date of production of copy of judgment by the Petitioner to the competent authority. The petition stands disposed of on above terms.