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Himachal Pradesh High Court · body

2014 DIGILAW 1710 (HP)

Jai Ram Kaundal v. State of H. P.

2014-11-21

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. 1. Petitioner was appointed as Medical Officer (Dental) vide office order dated 31.5.1993. He joined his duties on 4.6.1993. One post of exserviceman scheduled caste was advertised vide advertisement No.5/96 dated 31.10.1996. Petitioner made a representation through proper channel to consider him against the vacancy of scheduled caste ex-serviceman. He has also stated in the representation that he has given the option to be considered against the reserved vacancy of ex-serviceman as and when available. Case of the petitioner was rejected vide office order dated 6.10.2008 on the basis of instructions dated 21.7.1982. According to the letter dated 6.10.2008, rules do not provide to give benefit of fixation of pay and seniority when the officer is not recruited against the reserved vacancy of ex-serviceman. The same stand has been reiterated by the respondents in the reply. 2. However, fact of the matter is that petitioner was appointed on 31.5.1993 when the post of scheduled caste ex-serviceman was not available. It is in these circumstances he applied against scheduled caste category and appointed as Medical Officer (Dental) on 31.5.1993. The post of scheduled caste ex-serviceman has only become available on 31.10.1996. Case of the petitioner was required to be considered against this post, particularly when he had given option to be considered against the post of scheduled caste ex-serviceman as and when available. Petitioner had no option but to seek appointment against the scheduled caste post since the post of scheduled caste ex-serviceman was not available in the year 1993 when he was appointed as a Medical Officer (Dental). The instructions issued on 21.7.1982 clarifying that if any exserviceman belonging to scheduled caste or scheduled tribe is selected for an appointment, out of the vacancies reserved for being filled by ex-serviceman, his selection would be counted against the overall quota of reservation that shall be provided to scheduled caste or scheduled tribe as the case may be and once a person has been considered against scheduled caste or scheduled tribe quota, he cannot claim any benefit of being an ex-serviceman on a later date. These instructions would apply only when the ex-serviceman belonging to scheduled caste or scheduled tribe is selected for appointment out of vacancies reserved for being filled by ex-serviceman. In the instant case, the post of ex-serviceman was not available in the year 1993. It has become available only on 31.10.1996. These instructions would apply only when the ex-serviceman belonging to scheduled caste or scheduled tribe is selected for appointment out of vacancies reserved for being filled by ex-serviceman. In the instant case, the post of ex-serviceman was not available in the year 1993. It has become available only on 31.10.1996. Once the petitioner has given his option, he should have been considered against the post of ex-serviceman and conferred with all the rights upon him as per rules. 3. The employer has to take reasonable common sense view of the matter. Petitioner is an ex-serviceman. He joined the post, which was available immediately after his retirement from army. He could not wait till availability of the post of ex-serviceman scheduled caste being advertised. It is in these circumstances, he got himself appointed against the post of scheduled caste category and simultaneously gave his option to be considered against the post of ex-serviceman as and when available. Respondents have misconstrued instructions dated 21.7.1982 to deny the benefit of pay fixation and seniority to the petitioner. 4. The benefits which were available as per instructions dated 19.2.1975 to the demobilized armed personnel when recruited to non-reserved post and vacancy becoming available in near future even if occurs subsequently, the same would be applicable to the petitioner also. The personnel appointed against ex-serviceman category are entitled to pay fixation and seniority. The rules have been framed to give benefits to the ex-servicemen. The underlined principle to give reservation to the ex-servicemen is to attract the youth to join Indian Army and to appreciate the services they have rendered to the Nation. These provisions being special provisions are to mitigate the hardship being faced by the incumbents to seek employment, after their retirement at the young age, have to be construed liberally. 5. Accordingly, in view of the analysis made hereinabove, the petition is allowed. Annexures P-3 and P-4 are quashed and set aside. Petitioner would be deemed to have been appointed against the post of ex-serviceman scheduled caste advertised on 31.10.1996 for all intents and purposes. His pay shall be fixed in accordance with Armed Forces Personal Reservation of Vacancy in H.P. Non-Technical Service Rules, 1985 within a period of six weeks from today. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.