JUDGMENT : Tarlok Singh Chauhan, Judge. The petitioners have sought directions against the respondents for considering their case for appointment as Junior Engineers from the date of their appointment against the vacancy meant for Ex-serviceman alongwith all consequential benefits. 2. It is not disputed that the petitioners are Ex-servicemen and came to be appointed as Junior Engineers with the respondent-department in general open category. Now the grievance of the petitioners is that despite available vacancies reserved for Ex-serviceman, their cases are not being considered against these vacancies. This action on the part of the respondent is stated to be illegal, arbitrary and contrary to the provisions of instructions contained in the Handbook on Personnel Matters, more particularly Para 18.4.6. which reads as under:- “18.4.6. Consideration of an ex-serviceman for recruitment against un-reserved posts and benefits as consequence thereof. An ex-serviceman can also be recruited to non-reserved posts in the normal course. At the time of such appointment he should be required to opt whether he would like to be considered against the reserved vacancy as and when it arises. If he does so then the benefit of seniority, pay fixation etc. will be available under the Rules when the vacancy in question arises, and the reserved vacancy will be deemed to have been filled accordingly. If however, he does not so opt, the benefits of pay and seniority under the Rules will not be available to him and the next reserved vacancy will be filled by an ex-serviceman as per the procedure. This benefit of option is to be allowed to incumbents appointed against unreserved posts after the coming into force of the rules /instructions regarding availability of option for ex-serviceman in Non- Technical and Technical services/ posts and not from earlier dates.” 3. The respondents have filed their reply. However, the long and the short of it is that there were no vacancies of ex-serviceman quota available during 2008, 2009, 2010 and 2011 and the case of the petitioners was being considered against the vacancies against ex-serviceman quota which may fall vacant during the year 2012 against which the claim of the petitioners could be considered. But in the meantime, the respondents received a letter from the government informing them that a provision of Rule 5 (1) of Demobilized Indian Armed Forces Personnel Rules, 1974 had been quashed and the matter was now sub-judice before the apex court. 4. But in the meantime, the respondents received a letter from the government informing them that a provision of Rule 5 (1) of Demobilized Indian Armed Forces Personnel Rules, 1974 had been quashed and the matter was now sub-judice before the apex court. 4. The petitioners filed rejoinders, wherein it is stated that as per information received under the Right to Information Act, in all, the names of 26 persons had been sponsored by the Ex-serviceman Cell, but three out of them did not join and many of those who had joined the service against the reserved posts stand superannuated from service and therefore, the cases of the petitioners could conveniently be considered against these vacancies. 5. When the matter came up for consideration before this Court on 20.11.2013, the respondents were directed to file a supplementary affidavit in CWP No. 4654 of 2013 meeting out the averments made in the rejoinder. The respondents filed supplementary affidavit wherein it is stated that a requisition to fill up 34 vacancies of Junior Engineers from the Ex-serviceman quota was sent to the Ex-serviceman Cell, Hamirpur against which 26 candidates were sponsored by the Ex-serviceman Cell. Subsequently, the Ex-serviceman Cell, Hamirpur directed the official respondents not to consider the candidature of the persons appearing at Serial Nos. 1, 8 and 23. However, vide letter dated 9.9.2008, it again sponsored the names of three candidates in their place. Out of aforesaid 26 persons one person namely Rasila Ram Bhardwaj did not join and the said post could not be filled in and given by the respondents to the Ex-serviceman recruited against general category. The person at Serial No. 31 also did not join, while the person listed at Serial No. 32 of Annexure P-6 vacated the post on his retirement on 30.6.2011. Besides these seven persons recruited through the Ex-serviceman quota were promoted and the said vacancies became available during 6/2012. Another vacancy became available on the retirement of person at Serial No. 33 on 31.8.2012 and yet again another vacancy became available on retirement of person at Serial No. 36 Sh. Kashmir Chand, who retired on 31.12.2011. The petitioners could not be appointed since there were four persons senior to them, who were waiting for their turn and consideration against these posts. Kashmir Chand, who retired on 31.12.2011. The petitioners could not be appointed since there were four persons senior to them, who were waiting for their turn and consideration against these posts. Two vacancies which became available during the year 2011 would go to Salinder Singh and Tilak Raj who were senior to the petitioners and against the vacancies, which became available during 6, 2012, the claim of the persons at Serial Nos. 3 to 6 would be considered. 6. It was then submitted that this court in its judgment dated 29.12.2008 in CWP No. 488 of 2001 titled V.K.Behal vs. State of H.P & ors. reported in Latest HLJ 2009 (HP) 402 has held that the Ex-servicemen, who are recruited during emergency alone are entitled for counting the service rendered in the military and the Ex-servicemen who joined the Indian Army as a career are not entitled for counting of service and the matter is now pending before the Hon’ble apex court. We have heard the learned counsel for the parties and have gone through the records. 7. Indisputedly the respondents were ready to consider the cases of the petitioners against the vacancy of ex-serviceman which would have arisen in the year 2012 but for the decision rendered by this court in V.K.Behal’s case (supra), where this court held as follows:- “17. In view of the above discussion, the writ petition is allowed. The Provision of Rule 5(1) of the Rules are read down and they are held to be unconstitutional in so far as they give benefit of counting the past army service towards seniority in civil employment in case of ex-servicemen who have not joined the Armed forces during the period of emergency. It is also held that the benefit of such service can not be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria prescribed in the rules. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. There shall be no order as to costs.” Rule 5(1) of the Demobilized Armed Forces Personnel (Reservation of vacancies in the Himachal Pradesh State Non- Technical Services) Rules, 1972, reads thus: “(1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant rules, shall count towards fixation of pay and seniority in that service. This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under the State/Central Govt. against reserved posts.” 8. In case the aforesaid rule is minutely analyzed, it would be seen that it comprises of two parts, 1st pertains to counting of service for the purpose of fixation of pay and 2nd pertains to counting of service for the purpose of seniority. 9. The question therefore, required to be determined is as to whether this court while deciding V.K.Behal’s case (supra) declined all the benefits provided under Rule 5(1) (supra) to those ex-servicemen, who admittedly had joined the Armed Forces as a career. In our humble and considered opinion the court has only adjudicated upon the benefit of counting of past army service towards seniority in civil employment and has not adjudicated upon the conferment of benefit of past army service in so far it pertains to fixation of pay. In fact this claim was neither agitated by the petitioners therein nor adjudicated upon by this court. Rather what appears from the perusal of judgment is that even the petitioners therein had no objection in case financial benefit like fixation of pay was granted to the ex-servicemen, as would be clear from para-3 of report, which reads as follows:- “3. The main contention raised on behalf of the petitioners by Sh.Dalip Sharma is that the Rules are unconstitutional because they give benefit of even those ex-servicemen who had not joined service in the armed forces during the period of emergency. The main contention raised on behalf of the petitioners by Sh.Dalip Sharma is that the Rules are unconstitutional because they give benefit of even those ex-servicemen who had not joined service in the armed forces during the period of emergency. According to the petitioners, the persons who join the armed forces when the situation in the Country is normal do not do anything extra-ordinary and they join the armed forces like any other career and therefore, there is no rationale for giving them benefit of the service rendered by them in the armed forces for the purposes of pay and seniority. Sh. Dalip Sharma, learned counsel for the petitioners had urged that he is not in any manner arguing that the ex-servicemen do not form a separate class. He submits that to satisfy the tests of Article 14 not only should the classification be justified but there should be a reasonable nexus with the object sought to be achieved. It is his submission that if the object is to rehabilitate the ex-serviceman this object is served by providing reservations to them. However, according to him, there is no justification in granting them the benefit of seniority by adding the period of service rendered by them in the Army. He submits that once the persons are recruited from various sources and become members of one service no further distinction can be made between them on the ground of the past service rendered in a totally unrelated employment. In the alternative he submits that the benefit, if any, should be restricted to grant of financial benefits like fixation of pay only and the rights of other individuals who joined service much before the ex-servicemen cannot be jeopardized by giving the ex-servicemen benefit of adding the service rendered by them in the armed forces for reckoning their seniority. According to him, the case of ex-servicemen who joined armed forces during the period of emergency when the Nation was facing foreign aggression or when the sovereignty and integrity of the Country was at stake, stands on a completely different footing and the ex-servicemen who joined during emergency have to be treated as a different class. The benefit given to such ex-servicemen who joined during emergency cannot be extended to the person who joined service during normalcy. The benefit given to such ex-servicemen who joined during emergency cannot be extended to the person who joined service during normalcy. In the alternative it is urged that even if the Rule is held to be valid the deemed date of appointment cannot be from a date prior to such persons acquiring the minimum educational eligibility criteria prescribed in the Rules.” 10. Notably even this court did not find any illegality in so far as the pay of ex-servicemen was protected, as would be clear from the following observations:- “10. There may exist an intelligible criteria for providing reservation to ex-servicemen. The object is also reasonable i.e.. to rehabilitate the ex-servicemen but this object can be achieved by providing reservations to them. Nobody is against such reservation. Their pay can also be protected. The problem arises when there is a conflict between persons from the civil society who have joined service much earlier than the ex-servicemen but then they are placed lower when the ex-servicemen who are given benefit of their past service regardless of the fact whether they have joined during emergency or not.” 11. Once this is the position, the respondents cannot under pretext of judgment in V.K.Behal’s case (supra), being sub-judice before the Hon’ble Supreme Court, deny to the petitioners the benefit of approved military service for counting the same towards fixation of pay. 12. In so far as the question of counting the same towards the seniority is concerned, the same shall essentially have to abide by the decision of the apex court in V.K.Behal’s case. In the event of the Hon’ble Supreme Court ultimately deciding in favour of the ex-servicemen, then needless to say that the same benefit shall also have to be extended to the petitioners. 13. With these observations, the petitions are partly allowed. The respondents are directed to grant the benefit of approved military service towards fixation of pay after considering their cases against the vacancies of ex-servicemen, which have arisen in the year 2012. The Registry is directed to place a copy of this judgment on the file of connected matter.