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2025 DIGILAW 431 (HP)

Vinod Kumar v. State of H. P.

2025-03-21

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua , J. Petitioner is an ex-serviceman, presently serving as Junior Engineer (Civil) on Contract basis in Himachal Urban Development Authority (HIMUDA), where he had joined through the agency of Ex-servicemen Cell-respondents No.2 & 3 in December 2023. In the year 2024, several vacancies in different departments of the State meant to be filled up from ex-servicemen were notified. These were to be filled up through the Ex-servicemen Cell-respondents No.2 & 3. Petitioner was interested for the post of Junior Engineer (Civil) in Jal Shakti Department, Shimla notified at Serial No.74 & 75 of Annexure P-2. He, accordingly, represented on 10.09.2024 (Annexure P-1) to respondents No.2 & 3 to sponsor his name & to allow him to participate in the Screening process for the aforesaid post. Respondents No.2 & 3 did not oblige, hence, this writ petition. 2. Submissions 2(i) Learned Advocate General and learned counsel for respondents No.2 & 3 contend that having once been employed on a civil post as an ex-serviceman through respondents No.2 & 3, the petitioner can seek appointment against another civil post as an ex-serviceman only if the other is a post higher to the post currently held by the petitioner. The petitioner is presently serving as Junior Engineer (Civil) in HIMUDA on contract basis. He is now seeking employment again as Junior Engineer (Civil) in Jal Shakti Department of the State. Junior Engineer (Civil) in Jal Shakti Department is not a post higher to the post of Junior Engineer (Civil) HIMUDA. The post remains the same i.e. Junior Engineer (Civil). Therefore, petitioner’s name had rightly not been sponsored by respondents No.2 & 3 for the post in question. In support of this submission, reliance was placed upon following contents of an office letter dated 21.02.2009 (Annexure R-1):- “Dated Shimla-171002, the 21 st February, 2009 From The Secretary (Personnel) to the Government of Himachal Pradesh To The Director Sainik Welfare Department H.P. at Hamirpur, 177001. Subject:- Clarification with regard to considering the Ex-servicemen already nominated/appointed on contract basis for higher job on contract bases again. I am directed to refer to your letter No. DSW-EMP (Ex-cell) 4/76 dated 10 th October, 2008 and subsequent reminder of even number dated 5-11-2008 on the above subject and and to say that employment on contract basis is not to be termed as civil employment. I am directed to refer to your letter No. DSW-EMP (Ex-cell) 4/76 dated 10 th October, 2008 and subsequent reminder of even number dated 5-11-2008 on the above subject and and to say that employment on contract basis is not to be termed as civil employment. The first civil employment would mean that employment which is regular and where the official is given the benefit of reservation as ex-servicemen. Keeping in view the above position, the ex-servicemen once nominated/appointed on contractual basis can be considered again against higher post against a vacancy reserved for ex-servicemen on the basis of their seniority in the "Live Register' till they are appointed on regular basis. Yours Faithfully Deputy Secretary (Personnel) to the Government of Himachal Pradesh” 2(ii) Learned counsel for the petitioner argued that petitioner is serving at present as Junior Engineer (Civil) in HIMUDA through respondents No.2 & 3. The post is not regular but on contractual basis and further the post is not under the State Government but under HIMUDA-an independent authority. In order to have better career prospects, petitioner aspires for consideration of his candidature against vacancies for ex-servicemen which have now arisen in the State departments. Referring to Chapter 18 of the Handbook on Personnel Matters Volume-I (Edition 2021), the Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non-Technical Services) Rules 1972 and the Ex-Servicemen Reservation of vacancies in the Himachal Pradesh Technical Services) Rules 1985, learned counsel contended that there is no provision under the applicable rules/instructions which prohibits consideration of petitioner’s candidature as an ex-serviceman against a civil post on account of his presently manning a civil post on contract basis through respondents No.2 & 3. Since both sides have placed reliance upon Clause 18.4 of Handbook of Personnel Matter Volume-I, Ex-Servicemen (Reservation of vacancies in Himachal Pradesh Technical Services) Rules, 1985 (hereinafter referred to as Technical Services Rules) and Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972 (hereinafter called as Non-Technical Services Rules), therefore, in order to avoid repetition, rules are being discussed hereinafter. 3. The issue involved in the present case is:- Whether the petitioner currently employed as Junior Engineer (Civil) in HIMUDA on contract basis as an ex-serviceman through Ex-servicemen Cell, can again seek nomination as an ex-serviceman for appointment to another post of Junior Engineer (Civil)this time in a State Department? 4. 3. The issue involved in the present case is:- Whether the petitioner currently employed as Junior Engineer (Civil) in HIMUDA on contract basis as an ex-serviceman through Ex-servicemen Cell, can again seek nomination as an ex-serviceman for appointment to another post of Junior Engineer (Civil)this time in a State Department? 4. Consideration 4(i) It is not in dispute that the petitioner is serving as Junior Engineer (Civil) in HIMUDA on contract basis. He was appointed as such, based on nomination by respondents No.2 & 3-the Ex-servicemen Cell on 14.12.2023. Petitioner is now desirous of his nomination by respondents No.2 & 3 for appointment to the post of Junior Engineer (Civil) in Jal Shakti Department. The point to be considered is whether an ex-serviceman after gaining civil employment on contract basis as an ex-serviceman can be nominated again for another civil employment as an ex-serviceman on contract basis? 4(ii) For considering the above question, it would be appropriate to first refer to Chapter-18 of the Handbook of Personnel Matters Volume-1 (Edition 2021), which has been pressed into service by both sides. Its Chapter 18 is with the heading “Reservation for Demobilized Armed Forces Personnel”. Clause 18.4.9 thereof postulates admissibility of benefit of recruitment to an ex-serviceman against more than one reserved posts. Both sides have relied upon this clause but have different interpretation to offer thereof. The clause goes as under:- “18.4.9 Admissibility of benefit of recruitment to an ex-serviceman against more than one reserved posts. An ex-serviceman after appointment against a reserved post can again seek appointment against another post reserved for ex-servicemen, but in the event of his appointment to another post he is not entitled to count his approved military service for the grant of benefits like fixation of seniority and pay as these benefits are to be allowed only on his first civil appointment against a post reserved for ex-servicemen. Note:- In the rules of reservation of vacancies for Ex-servicemen in Non-Technical posts a note was inserted in Rule 3 from 29-6-1976 providing for an ex-serviceman ceasing to be an ex-serviceman on his joining the first civil employment under any State/Central Govt., but this note was subsequently deleted through an amendment to the Rules dated 1-8-1985.” The clear & unambiguous language of the above clause leaves no room for doubt that an ex-serviceman after his appointment against a reserved post can again seek appointment against another post reserved for ex-servicemen. The only condition is that in the event of his appointment to another post, he (ex-serviceman) will not be entitled to count his approved military service for the grant of benefits like fixation of seniority and pay etc. Such benefits are allowed only on first civil appointment against a post reserved for ex-servicemen. That being the rule position, the petitioner an ex-serviceman after his appointment as Junior Engineer (Civil) HIMUDA on contract basis can certainly seek appointment against the post of Junior Engineer (Civil) in Jal Shakti Department. In the event of petitioner’s appointment as an ex-serviceman to such post, he will not be entitled to count his approved military service for the grant of benefits like fixation of seniority and pay etc., which are presently admissible to the petitioner on his appointment as Junior Engineer (Civil) HIMUDA. Learned counsel for the petitioner states that petitioner will not claim his approved military service for the purpose of seniority and pay in the event of his appointment as ex-serviceman to another post. 4(iii) Learned Advocate General and learned counsel appearing for respondents No.2 & 3 though placed reliance upon afore-extracted clause 18.4.9 but submitted that the words used in the above extracted Clause are “another post’ reserved for an ex-serviceman. That the words “another post” would only mean a higher post in the same department. Learned Advocate General gave an example that in case a person is serving as a Junior Engineer as an ex-serviceman on his nomination as such by the Ex-servicemen Cell, he can be nominated once again for appointment as an ex-serviceman but only against the ‘higher post’ i.e. Assistant Engineer etc., whereas in the instant case, the petitioner presently serving as Junior Engineer (Civil) HIMUDA is seeking another employment as an ex-serviceman but again as Junior Engineer though in the State Department. The post in question in HIMUDA and also in Jal Shakti Department being Junior Engineer (Civil), the petitioner is not entitled to the benefit of Clause 18.4.9 as Junior Engineer (Civil) in Jal Shakti Department will not be a ‘higher post’ when compared to the post of Junior Engineer (Civil) HIMUDA. Learned Advocate General & learned counsel for respondents No.2 & 3 heavily banked upon an office letter dated 21.02.2009 for opposing petitioner’s claim for second time nomination through Ex-servicemen Cell. This office letter [extracted in para 2(i)]states that:- a. Employment on contract basis is not to be termed as civil employment as the civil employment would mean which is regular and where official is given benefit of reservation as ex-serviceman. b. Ex-servicemen once nominated/appointed on contractual basis can be considered again against higher post against a vacancy reserved for ex-servicemen on the basis of their seniority in the ‘Live Register’ till they are appointed on regular basis. 4(iii)(a) The above clarification rather supports petitioner’s claim for second time nomination by respondents No.2 & 3. He is currently holding a post on contract basis and not on regular basis, hence, is not in ‘civil employment’ as per the office letter relied upon by the respondents. Being not in civil employment, as per Clause 18.4.9, petitioner certainly has a right to be nominated again for another post as an ex-serviceman. 4(iii)(b) To a query of the Court, learned counsel for respondents No.2 & 3 fairly admitted that petitioner’s name is still being reflected in the ‘Live Register’ as his current employment of Junior Engineer (Civil) in HIMUDA is on contract basis against a contractual post and not on regular basis. 4(iii)(c) Learned counsel appearing for respondents however strongly urged that petitioner’s name can be nominated again for civil employment provided the next post is ‘higher’ than the previous post, whereas in the instant case, rank of both the posts i.e. the one currently held by the petitioner & the other to which he seeks nomination is Junior Engineer (Civil). Therefore, his name cannot be nominated. The ‘higher’ post has not been defined either in the clarification or in the applicable rules. ‘Higher’ is a relative term not to be confined to ‘higher in rank’, ‘higher in pay scale’ etc. Petitioner presently holds the post of Junior Engineer (Civil) in HIMUDA. Therefore, his name cannot be nominated. The ‘higher’ post has not been defined either in the clarification or in the applicable rules. ‘Higher’ is a relative term not to be confined to ‘higher in rank’, ‘higher in pay scale’ etc. Petitioner presently holds the post of Junior Engineer (Civil) in HIMUDA. The post of Junior Engineer (Civil) on which he now stakes claim is in State Jal Shakti Department. A subtle difference in the nature of two posts starts from this lone fact itself. Petitioner feels that his present posting as Junior Engineer (Civil) HIMUDA will not have those career prospects, which he can have as Junior Engineer (Civil) in Jal Shakti Department of State. For him, post of Junior Engineer (Civil) in Jal Shakti Department is a ‘higher post’. It is also to be noticed that the respondents in their reply have not disputed petitioner’s factual allegations that the post of Junior Engineer (Civil) currently being held by him on contract basis at HIMUDA enjoys lesser status than the post of Junior Engineer (Civil) in Jal Shakti Department of the respondents-State. HIMUDA is an autonomous body, whereas Jal Shakti Department falls under the State of Himachal Pradesh having better option of status, emoluments, promotional avenues and financial securities like pension, etc. 4(iii)(d) Further more, the second para of office letter dated 21.02.2009 cannot be read in isolation from the first para. When as per opening para of the office letter, the contractual appointment cannot even be construed as ‘civil employment’ within the rules then there cannot be any bar for subsequent re-appointment as ex-serviceman through nomination by Ex-servicemen Cell. In any case, the clarification given in office letter dated 21.02.2009 will not override the provisions in the Rules. 4(iv) It would be also pertinent to refer here to the note figuring below Rule 3 of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972. The note reads as under:- “For the purpose of this rule an ex-serviceman or a Released Army person shall cease to be so as soon as he joins the first civil employment under the State Government.” The import of the above note was that no sooner an ex-serviceman or the released army personnel joins first civil employment under the State Government, he shall cease to be an ex-serviceman. In another words, he will not be eligible to be considered for any other post as an ex-serviceman. Significantly this note was deleted under an amendment to the rules carried out vide notification dated 01.08.1985. The deletion of this note has also been specifically mentioned in Clause 18.4.9. of Chapter 18 of the Handbook on Personnel Matters Volume-I. Noticeably no such note even exists in the Ex-servicemen Reservation of Vacancies in the Himachal Pradesh Technical Services Rules 1985, which are applicable to the instant case. Thus there is no embargo under the Technical Rules 1985 for petitioner’s second time nomination as an ex-serviceman against the post in question. Learned counsel for the respondents would contend that if an ex-serviceman is permitted to apply again it would become a never ending process and resultantly posts will also keep falling vacant. This is an aspect to be considered by respondents. The Rules/Instructions framed by the respondents on the subject matter in place as on date permit the relief prayed for by the petitioner. The rules have been framed by the respondents themselves with objective for creating best possible re-employment avenues to the ex-servicemen. 4(v) No other point was urged. 5. The sum total of above discussion is that as per instructions/rules governing the subject matter as on date, the petitioner who is currently serving as Junior Engineer (Civil) HIMUDA as an ex-serviceman on contract basis certainly has a right to seek nomination from respondents-Ex Servicemen Cell for employment against the post of Junior Engineer (Civil) in Jal Shakti Department. The reasons assigned by the respondents for not nominating the petitioner for the post of Junior Engineer (Civil) in Jal Shakti Department reserved for ex-serviceman category are not tenable. Accordingly the writ petition is allowed. Respondents are directed to nominate/sponsor the name of the petitioner as an ex-serviceman for the post of Junior Engineer (Civil) in the Jal Shakti Department. This exercise be carried out within two weeks. Pending miscellaneous application(s), if any, shall also stand disposed of.