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Himachal Pradesh High Court · body

2012 DIGILAW 1029 (HP)

Yashwant Singh v. State of Himachal Pradesh

2012-12-24

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This writ petition has been preferred by the petitioner praying that (a) his appointment as JBT teacher be considered against the post reserved for Ex-servicemen in accordance with the Demobilised Armed Forces Personnel (Reservation of vacancies in the Himachal State Non-Technical Services), Rules, 1972 (hereinafter referred to as ‘the Rules’); (b) that the respondents be directed to count the past military services of the petitioner towards pay fixation and seniority as JBT teacher; and (c) the respondents be directed to produce the entire record. 2. The petitioner pleads that he joined the Armed Corps as Sepoy on 21.10.1971 and was promoted as D.F.R. Havaldar in the year 1989. He was discharged from military services on 31.10.1995 after having rendered 24 years of approved military service to his credit. After retirement the petitioner was enrolled with the Employment Exchange, Ghumarwin, District Bilaspur as Ex-serviceman. His name was sponsored by the Employment Exchange and he was appointed as JBT teacher. The petitioner pleads that as an Ex-serviceman he is entitled to the benefit of seniority in accordance with the Rules. The petitioner relies upon the notification of the Himachal Pradesh Government (Annexure P-5) in support of his case. According to him, the benefit of the Notification has not been extended to him; therefore, he seeks the enforcement of the Rules by way of this writ petition. 3. The State has replied stating that the petitioner was on contract appointment and this post was not reserved for Ex-serviceman. There is no provision for counting contract service rendered as such. This is the gist of reply. The petitioner seeks enforcement of the instructions in the notification supra, for the purpose of reckoning his service against the post reserved for an Ex-servicemen. 4. In order to appreciate the factual matrix, it is necessary to refer to the notification relied upon by the petitioner, which is reproduced:- “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, Head of Departments etc. (Referred to in paras 18.2 and 18.4.6) Subject: Demobilised Army Personnel-Concession When recruited against un-reserved vacancies. (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 Notificationof evennumber 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 unreserved 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. 2. This also disposes of Home-B Department letter No.7-13/72-Home (B), dated the 19th February, 1975. Case VI 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 ofan 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. Appendix 8 Government of Himachal Pradesh, General Administration Department, letter No. 11-76/71-GA-A (Vol II) dated the 23rd May, 1975. Subject:- Demobilised Army Personnel- Concession when recruited against unreserved vacancies. Appendix 8 Government of Himachal Pradesh, General Administration Department, letter No. 11-76/71-GA-A (Vol II) dated the 23rd May, 1975. Subject:- Demobilised Army Personnel- Concession when recruited against unreserved vacancies. I am directed to address you on the subject noted above and to say that the various concessions granted under the Demoblised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972 notified vide this Department notification of even number, dated 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. 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 shouldbegiven 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. 2. This also disposed of Home-B-Department letter No. 7-13/72-Home(B), dated the 19th February, 1975.” It is these instructions which the petitioner seeks to enforce and claims the benefit thereunder. 5. The State resists this petition on a number of grounds inter-alia that the persons likely to be affected have not been impleaded as party-respondents, the vacancy was not reserved for ex-serviceman; his name was not sponsored by the cell specially constituted for the purpose of sponsoring names of ex-servicemen. It is submitted that if the post as such was reserved for ex-serviceman the names of eligible ex-servicemen had to be sponsored and their cases considered. In this eventuality, no benefit can be granted to the petitioner. There is substance in the submissions made by the State. There is nothing on record to show/indicate that the petitioner in fact was sponsored by the cell constituted for sponsoring the names of ex-servicemen. His name was sponsored by the Employment Exchange for the post which has not been reserved for an ex-serviceman. 6. There is substance in the submissions made by the State. There is nothing on record to show/indicate that the petitioner in fact was sponsored by the cell constituted for sponsoring the names of ex-servicemen. His name was sponsored by the Employment Exchange for the post which has not been reserved for an ex-serviceman. 6. On the grant of benefit in consonance with the Notification, there can be no doubt that his case requires consideration in accordance with law if the notification is attracted to the facts, but at the same time, the rights of other persons who could also claim the same benefit cannot be ignored nor can the seniority etc. of other teachers in the cadre. In these circumstances, I direct that the State shall consider the case of the petitioner as to whether he would be entitled to the benefit vide Notification Annexure P-5 keeping in view the rights of other affected parties as also as to whether the post was reserved for ex-servicemen. For this purpose, the respondents will take a decision within a period of six months from today. Petition stands disposed of. No order as to costs.