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2025 DIGILAW 809 (HP)

Manujeshwar Kumar v. State of H. P.

2025-04-25

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Despite grant of final opportunity subject to payment of costs for filing reply, the respondents have not filed the same. Hence, the matter is taken up for hearing. 2. Petitioner was enrolled in Armed Forces on 22.02.1995. He retired from Armed Forces on 31.01.2012. Petitioner was re-employed in civil service as Trained Graduate Teacher on 07.06.2017 on contract basis against the post reserved for Ex-servicemen. His services were regularized on 28.10.2020. Petitioner’s grievance is that the respondents have not granted the benefit of approved military service of the petitioner towards fixation of his pay. 3. Learned counsel for the petitioner submits that the case of the petitioner for grant of benefit of approved military service towards fixation of pay from the date of joining the civil employment is squarely covered by the decision rendered in Babu Ram Versus State of Himachal Pradesh and others, CWP No.6443 of 2021 , decided alongwith connected matters on 09.05.2022. Learned Deputy Advocate General disputes the above fact and submits that the benefit of approved military service to the petitioner towards fixation of pay in civil employment was denied on the ground that vide notification dated 29.01.2018, the Department of Personnel, Government of Himachal Pradesh had amended Rule 5(1) of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972 . As per the amendment, ‘only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment to the service concerned, by the candidate(s) appointed against reserved vacancy under the relevant rules, shall count towards fixation of pay in that service at the time of first civil appointment against reserved vacancy. This benefit shall not be admissible in subsequent appointment(s) of Ex Servicemen who are already employed under the State/ Central Government against reserved post(s): Provided that such fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time’. 4. Heard learned counsel for the parties and considered the case file. The aforesaid amendment carried out vide notification dated 29.01.2018, was considered in Babu Ram’s (supra) case. 4. Heard learned counsel for the parties and considered the case file. The aforesaid amendment carried out vide notification dated 29.01.2018, was considered in Babu Ram’s (supra) case. The moot issue, which was determined in the said case was as to whether the benefit of approved military service for the purpose of pay fixation in terms of Rule 5(1) of 1972 Rules could be denied to the Ex-servicemen in terms of amendment carried out vide notification dated 29.01.2018, which provided that only the period of approved military service rendered after attaining minimum age and educational qualification prescribed for the service concerned by the candidate against reserved vacancy shall be counted towards fixation of pay in that service at the time of first civil employment against reserved vacancy. The Court held as under:- “19. Now drawing strength from the aforesaid amendment carried out in the said rule, benefit of approved military service towards fixation of pay is being restricted to the period of approved military service, rendered after attaining the minimum age and educational qualification prescribed for the post, on which such Ex-serviceman is appointed. 20. Since it is quite apparent from the judgment in V.K. Behal supra, that rule 5(1) has been read down to the extent it had provided benefit of counting approved military service towards seniority in the service, there cannot be any dispute qua the entitlement of Ex- serviceman for counting of approved military service towards fixation of pay. However, in the cases at hand, State by way of issuing Notifications dated 29.1.2018 and 30.1.2018 has attempted to deny benefit of approved military service to the Ex-serviceman for the purpose of pay fixation. Vide communication dated 30.1.2018, issued by Additional Chief Secretary to the Government of Himachal Pradesh to various officers of the State, it has been conveyed that in terms of judgment of this court in V.K. Behal, benefit of seniority as per 1972 Rules and the Ex-servicemen.. Vide communication dated 30.1.2018, issued by Additional Chief Secretary to the Government of Himachal Pradesh to various officers of the State, it has been conveyed that in terms of judgment of this court in V.K. Behal, benefit of seniority as per 1972 Rules and the Ex-servicemen.. (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985 are to be reviewed and seniority lists in all cadres are to be reframed accordingly showing position as on 29.12.2008, when this Court had read down and declared the rule 5(1) of the Rules, 1972 unconstitutional, insofar as it gives benefit of counting of past army service towards seniority in civil employment in the case of ex-servicemen, who have not joined the Armed forces during the period of emergency. However, the ex-servicemen appointed against the vacancies reserved for ex-servicemen in civil employment shall be entitled to avail the benefit of fixation of pay from a date when the ex-servicemen attain minimum age and educational qualification eligibility criteria prescribed in the rules. The fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time. The above referred instructions dated 17.5.2013 were rescinded accordingly. 21. There cannot be any quarrel with the fact that now Ex-servicemen who did not join the Armed Forces during period of emergency are not entitled to have benefit of approved military service for the purpose of seniority but the action of the State, in not giving benefit of approved military service towards fixation of pay of the ex-servicemen is not sustainable in the eye of law being arbitrary. Once aforesaid right stands conferred upon Ex-serviceman in terms of provisions of sub-rule 1 of rule-5 of 1972 rules, which still exists in the rule book, amendment if any, carried out in the aforesaid rules after passing of judgment in V.K. Behal supra cannot be otherwise made applicable retrospectively qua those Ex- servicemen, who otherwise stand appointed against the posts reserved for this category prior to issuance of Notification dated 29.1.2018. Perusal of aforesaid Notification which has been extracted herein above, clearly reveals that these amended rules were to come into force from the date of publication in Rajpatra/E- gazette of Himachal Pradesh i.e. 29.1.2018, meaning thereby that the Ex-servicemen who stood appointed prior to issuance of aforesaid Notification against the posts reserved for this category, otherwise cannot be denied benefit of approved military service towards fixation of pay, on the ground of minimum age and educational eligibility criteria. 22. …………………………………….. 23. Amendment carried out in sub-rule 1 of Rule 5 vide Notification dated 29.1.2018, otherwise does not affect rights of the petitioners, who are claiming benefit of counting of approved military service towards fixation of pay. Government of Himachal Pradesh with a view to bring 1972 Rules in harmony with judgment of this Court in V.K. Behal supra has amended aforesaid rules providing therein that the approved military service shall be counted only for the period, when such Ex- serviceman acquired the minimum age and educational qualification. However, this court is of the view that provision of grant of benefit of approved military service for fixation of pay was very much in 1972 Rules and the same has not been altered /amended even by the amendment carried out vide Notification dated 29.1.2018 and as such, this court has no hesitation to conclude that the Notification dated 29.1.2018 does not affect the right of the Ex-serviceman for counting of approved military service towards fixation of pay. 24. ……………………………………… 25. Consequently, in view of detailed discussion made herein above, we find merit in the writ petitions and accordingly the same are allowed and the respondents are directed to give benefit of approved military service to the ex-servicemen towards fixation of pay, from the time, they joined the civil employment, ignoring amendment carried out in provision of rule 5(1) of the rules, 1972 which otherwise can be said to have come into operation from the date of Notification dated 29.1.2018.” The judgment in Babu Ram’s (supra)case applies to the case of the petitioner as well. Petitioner had even otherwise joined civil employment prior to coming into force of notification dated 29.01.2018. 5. In view of above, this writ petition is allowed. The respondents are directed to confer the benefit of approved military service to the petitioner towards fixation of his pay from the date of his joining the civil employment. Petitioner had even otherwise joined civil employment prior to coming into force of notification dated 29.01.2018. 5. In view of above, this writ petition is allowed. The respondents are directed to confer the benefit of approved military service to the petitioner towards fixation of his pay from the date of his joining the civil employment. This exercise alongwith consequential follow-up action/ release of benefits be completed within a period of six weeks from today. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.