Himachal Pradesh High Court
State Of H.P. Through The ... vs State Of Haryana And Others And on 28 October, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 144 of 2001
Between:-
1. STATE OF H.P. THROUGH THE SECRETARY (E&T)
TO THE GOVT. OF H.P. SHIMLA-171002.
2. THE EXCISE AND TAXATION COMMISSIONER,
HIMACHAL PRADESH, SHIMLA-171009.
.....PETITIONERS
(BY SH. R.S. DOGRA, SENIOR ADDITIONAL ADVOCATE
GENERAL WITH SH. VINOD THAKUR, SH. SHIV PAL
MANHANS, ADDITIONAL ADVOCATE GENERALS AND
SH. BHUPINDER THAKUR, DY. ADVOCATE GENERAL)
AND
1. SH. GOVIND RAJ GAUR
SON OF SH. RUP LAL
EXCISE AND TAXATION OFFICER (RETIRED)
R/O BHAGWAN MOHALLA, MANDI, H.P.
......RESPONDENT
2. SH. MUNSHI RAM,
EXCISE AND TAXATION OFFICER
O/O ASSTT. EXCISE AND TAXATION
COMMISSIONER, SHIMLA.
3. SH. SHYAM LAL NEGI,
ASSISTANT EXCISE AND TAXATION
COMMISSIONER, SHIMLA.
4. (A) SMT. LAJWANTI (WIFE OF DECEASED)
::: Downloaded on - 31/01/2022 23:14:10 :::CIS
2
(B) BHISHAM KUMAR (SON OF THE DECEASED)
(C) JITENDER KUMAR (SON OF THE DECEASED)
.
(D) KUMARI POONAM (DAUGHTER OF THE DECEASED)
ALL RESIDENTS OF VILLAGE KANORI, P.O. DHAMI,
TEHSIL AND DISTRICT SHIMLA.
5. S.R DOGRA, EXCISE AND TAXATION OFFICER, O/O
DY. EXCISE AND TAXATION OFFICER (ENF.) (NZ)
DHARAMSHALA.
6. SH. SANT RAM KARD,
EXCISE AND TAXATION OFFICER,
M.P. BARRIER, SWARGHAT, DISTRICT
BILASPUR, H.P.
7. SH. RAM SARUP, EXCISE AND TAXATION OFFICER,
M.P. BARRIER, PARWANOO,
DISTRICT SOLAN, H.P.
8. SH. MUKHTIAR SINGH, INSPECTOR
O/O EXCISE AND TAXATION COMMISSIONER,
H.P. SHIMLA.
9. SH. RIKHI RAJ,
EXCISE AND TAXATION INSPECTOR,
O/O EXCISE AND TAXATION COMMISSIONER, H.P.
10. SH. B.L. DHIMAN,
EXCISE AND TAXATION INSPECTOR,
BILASPUR.
11. SH. PARTAP CHAUHAN,
EXCISE AND TAXATION INSPECTOR
M/S MOHAN MEAKIN BREWERY,
SOLAN, H.P.
12. SH. P.N. SHARMA,
EXCISE AND TAXATION INSPECTOR,
HAMIRPUR.
13. (A) SMT. KANTA DEVI (WIFE OF THE DECEASED)
::: Downloaded on - 31/01/2022 23:14:10 :::CIS
3
(B) SMT. SAROJ (DAUGHTER OF THE DECEASED)
(C) SH. MANOJ KUMAR (SON OF THE DECEASED)
.
ALL RESIDENT OF VILLAGE PENEOG, P.O.
KUMARSAIN, DISTRICT SHIMLA.
14. SH. H.C. JINDAL,
EXCISE AND TAXATION INSPECTOR,
CHOPAL, DISTRICT SOLAN, H.P.
15. SH. JAI DEV LAL SHARMA,
EXCISE AND TAXATION INSPECTOR, UNA, H.P.
..........PROFORMA RESPONDENTS
(SH. K.D.SOOD, SENIOR ADVOCATE WITH
SH. HET RAM THAKUR, ADVOCATE)
RESERVED ON : 21.10.2021
DATE OF DECISION : 28.10.2021
____________________________________________________
This petition coming on for orders this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, passed the following:
ORDER
Respondent No.1 presently aged 78 years was the
original applicant before the learned erstwhile H.P.
Administrative Tribunal. His original application bearing O.A.
No. 892 of 1991 seeking benefit of counting his past military
service for the purposes of Seniority, Promotion and Pay
Fixation in Excise and Taxation Department in accordance with
the Demobilised Armed Forces Personnel (Reservation of
Vacancies in Himachal State Non-Technical Services) Rules,
1972 was allowed by the learned tribunal on 7.7.2000. State
has assailed the judgment in this writ petition.
.
2 In the original application filed before the learned
Tribunal, it was pleaded that respondent No.1 joined Indian
Army on 06.12.1962. After putting in service of 4 years and
235 days, at his request, he was released from army on
compassionate grounds. Respondent No.1 thereafter was
directly recruited in the State Excise and Taxation Department
as an Inspector in the year 1970 and joined as such on
2.1.1971. The direct recruitment was against a vacancy
reserved for ex-servicemen. The Demobilized Armed Forces
Personnel (Reservation of Vacancies in Himachal State Non-
Technical Services) Rules, 1972 came into force. Respondent
No.1 claimed that in terms of these Rules, he was entitled to
count his service rendered in Army for the purposes of service
benefits i.e. seniority, promotion and pay-fixation. Following
reliefs were prayed for in the original application :-
"a) that the applicant be declared senior to
respondents No.3 to 16.
b) that the respondents be directed to count for the
military service of the applicant from December,
1962 to 1.8.67 for all benefits i.e. seniority &
promotion etc. and pay fixation."
The State contested the original application on
the ground that respondent No.1 did not fall in the definition of
.
ex-serviceman as given in the booklet on Service Matters
relating to Ex-Servicemen issued by the State in December
1983. It was contended that respondent No. 3 did not have
requisite five years of army service to his credit prior to his
release on compassionate grounds from Army to be called as
an ex-serviceman. Benefit of Demobilised Armed Forces Rules
cannot be extended to respondent No. 1. The factual assertion
made by respondent No. 1 that he was directly recruited in the
respondent Department against vacancy reserved for ex-
servicemen was not denied by the State in its reply. Another
ground taken by State to oppose the petition was that as per
Recruitment and Promotion Rules of cadre of Excise and
Taxation Inspectors, seniority has to be finalized on the basis
of qualifying departmental examination. Respondent No.1
qualified the departmental examination on 17.02.1977. Under
the R&P Rules, respondent No.1 has to be deemed to have
been confirmed in the year 1977. Seniority follows
confirmation. Therefore, respondent No.1 has to be assigned
seniority from the date of his qualifying the departmental
examination and not from the date of his appointment or from
the deemed date by extending him the benefit of Demobilized
Armed Forces Rules 1972 taking into account the period of
service he rendered in the army.
.
Learned Tribunal allowed the original application.
Respondent No.1 was allowed the benefit of service rendered
by him in army under the Demobilized Armed Forces Rules
1972. The State was directed to fix his seniority by giving him
the benefit of military service under the Demobilized Armed
Forces Rules and the Provisions of R&P Rules.
3. The State has challenged the judgment dated
7.7.2020 passed by the learned Tribunal on the grounds that:-
respondent No.1 was not covered under the definition of ex-
serviceman ; He was not appointed against the vacancy
reserved for ex-servicemen ; Respondent No.1 was appointed
as Inspector in Excise and Taxation Department on 2.1.1971
whereas the Demobilized Armed Forces Services Rules came
into effect w.e.f. 22.03.1972 ; The Recruitment and Promotion
Rules for the post in question provide for condition of qualifying
the departmental examination ; Under the Recruitment and
Promotion Rules, seniority has to be assigned from the date of
confirmation for the post of Inspector in the respondent
Department ; Confirmation is subject to condition of passing
the departmental examination ; The departmental examination
was qualified by respondent No.1 on 17.02.1977. Resultantly,
seniority has to be assigned to him from the date of his
qualifying the departmental examination which is sine-qua-non
.
for confirmation.
4. We have heard learned counsel for the parties
and gone though the records.
4(i) The Demobilized Armed Forces Personnel
(Reservation, of vacancies in Himachal State Non-Technical
Services) Rules 1972 do not specifically define an ex-
serviceman. However, the booklet on service matters relating
to ex-servicemen issued by State of Himachal in December
1983 contained the definition of ex-serviceman as under:-
"Ex serviceman means a person who has served in any
rank (whether as a combatant or as a non-combatant) in
the Armed Forces of the Union, including the Armed
Forces of the Former Indian States but excluding the
(a) Assam Rifles
(b) Defence Security Corps,
(c) General Reserve Engineering Forces
(d) Lok Sahayak Sena; and
(e) Territorial Army,
for a continous period of not less than six months after
attestation.
And
(i) has been released, otherwise than at his own request
or by way of dismissal or discharge on account of
misconduct or inefficiency, or has been transferred to
reserve pending such release;
or
(ii) has to serve for not more than six months for
becoming entitled to be released or transferred to the
reserve;
.
or
(iii) has been released at his own request, after
completing five years service in the Armed Forces of the
Union."
Respondent No.1 joined Indian Army on 6.12.1962 and
was released on compassionate grounds on 1.8.1967. He had
completed 4 years and 235 days of service in the army at the
time of his release. The stand of the State is that a person who
is released from military service at his own request, should
have served there for at least 5 years to qualify for the benefits
admissible to ex-servicemen. For this assertion, reliance has
been placed upon Clause-III of definition of ex-serviceman as
contained in the booklet (extracted above). Learned Tribunal,
while allowing the original application, relied upon a judgment
of Hon'ble Apex Court in 1985 (Supp) SCC 72 titled Raj Pal
Sharma and others Vs. State of Haryana and others and
rejected the objections taken by the State. In that case,
Government of Haryana had adopted Punjab Government
National Emergency Concession Rules 1965. Rule 4 of these
Rules provided for counting the military service towards
increments, seniority and pension as detailed in the Rule. Vide
notification dated 5.11.1976, the State of Haryana amended
Punjab Rules by inserting a proviso to Rule 4 whereby persons
who had been released from military service on
.
compassionate grounds were deprived of the benefits of the
rule. The proviso read as under:-
"Provided that a person who has been released from
military service on compassionate grounds shall not be
entitled to any concession under this rule".
Hon'ble Apex Court held that the mere fact that
the petitioners therein were released from military service on
compassionate grounds cannot disentitle them as they
satisfied the requirement of Rule 4 of the Punjab Rules. The
ground on which they were released were held to be not
material. It is apt to extract following para from the judgment:-
" 6. It is true that the principle of equality in Article 14 of
the Constitution does not take away from the State the
power of classifying persons for legitimate purposes.
Every classification in some degree is likely to produce
some inequality and mere production of inequality is not
enough. Differential treatment does not per se constitute
violation of Article 14. It denies equal protection only when
there is no reasonable basis for differentiation. If a law
deals equally with members of a well-defined class, it is
not obnoxious and it is not open to the charge of denial of
equal protection on the ground that it has no application to
other persons. what Article 14 prohibits is a class
legislation and not reasonable classification for the
purpose of legislation. If the legislature takes care to
reasonably classify persons for legislative purposes and it
deals equally with all persons belonging to a well defined
class it is not open to the charge of denial of equal
protection on the ground that the law does not apply to
other persons. In order, however, to pass the test of
permissible classification two conditions must be fulfilled:
.
(1) that the classification must be founded on an
intelligible differentia which distinguishes persons or things
that are grouped together from other left out of the group,
and (2) that the differentia must have a rational relation to
the object sought to be achieved by the statute in
question. In the instant cases the petitioners are all ex-
military personnel. They have also been released from
military service. All those persons released from military
service constitute one class and it is not possible to single
out certain persons of the same class for differential
treatment. There appears to be no reasonable
classification between the persons who were released on
compassionate grounds and those who were released on
other grounds and in this respect the petitioners have
been deprived of the equal opportunity. The amendment,
therefore, is violative of Articles 14 and 16 of the
Constitution and, therefore, bad.
7. In this view of the legal position the petitioners herein
are also entitled to the benefits of Rule 4 and the mere
fact that they were released from military service on
compassionate grounds cannot disentitle them as they
satisfy the requirement of Rule 4 of the Punjab Rules as it
originally stood. The grounds on which they were released
are not material. If once they are held to be ex-military
servicemen they are entitled to the benefits of Rule 4."
The judgment in Raj Pal Sharma's case (supra) was
followed in 1991 Supp(2) SCC 190 titled Ex-Captain R.S.
Dhull Vs. State of Haryana and others.
In the instant case, objection raised by the State
.
is not on account of release of respondent No.1 from Army on
compassionate grounds, but on the ground that at the time of
such release, respondent No. 1 had not put in 5 years of Army
service and thus was not covered under the definition of ex-
serviceman as given in the booklet (extracted above). The
objection of the State has to be viewed from various angles.
Respondent No. 1 has claimed benefit of Demobilised Armed
Forces Rules 1972. 'Ex-serviceman' has not been defined
under these Rules. In case definition of 'ex-serviceman' as
given in the booklet (already extracted above) is to be applied,
then respondent No. 1 falls short of requisite 5 years of Army
service by around 4 months. However, the booklet containing
this definition was issued by the State in December 1983,
whereas petitioner was appointed to civil service on
02.01.1971. Another significant factual aspect in this case is
that in their reply filed to the original application, the State did
not deny respondent No.1's factual assertion that he was
appointed as Inspector on 02.01.1971 in the Excise & Taxation
Department against a vacancy reserved for ex-servicemen. In
his reply filed to the present writ petition, respondent No. 1 has
placed on record a communication dated 31.08.1981 wherein
Excise & Taxation Commissioner has, inter alia, stated that
appointment of respondent No. 1 on 02.01.1971 was against a
.
vacancy reserved for ex-servicemen. The document has not
been rebutted by the State. No rejoinder controverting the
contentions raised in reply has been filed by the State.
Therefore, even if respondent No. 1 technically did not
possess 5 years of service required under the booklet issued
by the State in December, 1983 to be called as ex-serviceman,
yet looking to the facts of the case, we deem it proper to give
quietus to the issue by holding that respondent No.1 shall be
deemed to be an ex-serviceman by condoning shortfall, if any,
in the Army service rendered by him as against the requisite
period of Army service. We are adopting this approach
considering that respondent No. 1 was appointed to civil
service as an ex-serviceman on 02.01.1971; He filed his
original application in the year 1991 claiming benefit of past
Army service rendered by him; His original application was
allowed by the learned Tribunal on 07.07.2000 ; Ever since
1991 he is pursuing his claim on the strength of his being an
ex-serviceman ; During pendency of litigation, all private
parties including respondent No. 1 have superannuated ; None
of the private respondents have challenged the judgment
dated 07.07.2020. It is only the State, which has chosen to file
this writ petition against the judgment dated 07.07.2020 ;
Presently, respondent No. 1 is stated to be around 79 years of
.
age. Therefore, in the peculiar facts and circumstances, we are
inclined to hold that respondent No. 1 is to be treated as an
ex-serviceman. We clarify that such an observation is confined
only to the instant case in view of its peculiar facts and shall
not be treated as precedent.
5(ii) R&P Rules vis-a-vis Demobilized Armed Forces
Rules 1972.
It was jointly submitted by the parties that all the
issues raised by the petitioner/State under this head were to
follow and abide by the decision of the Hon'ble Supreme Court
in SLP(C ) 8949/2009 titled R.K. Barwal Vs. State of H.P.
Following order was passed in this regard on 05.03.2010 in
the instant writ petition:-
"List after the decision of the Supreme Court in SLP (C)
C.C. 8949/2009 (R.K. Barwal Vs.State of H.P.) arising out
of CWP No.488/2001 titled Sh. V.K. Behl Vs State decided
on 29.12.2008 as the same question arises for
determination in this petition."
R.K. Barwal's case (supra) stands decided by the
Hon'ble Apex Court vide (2017) 16 SCC 803, wherein it was
held that benefit of past service rendered in the Armed Forces
has to be extended to those ex-servicemen who joined Armed
Forces during emergency. In R.K. Barwal's case, the issue
involved related to the validity of the Demobilized Armed
Forces Personnel (Reservation, of Vacancies in Himachal
.
State Non-Technical Services) Rules 1972. A Division Bench of
this Court in judgment reported in Latest HLJ 2009 (HP) 402,
titled Shri V.K. Behal and others Vs. State of H.P. and
others, had held that there can be no manner of dispute that
ex-servicemen who joined the armed forces during emergency
have to be placed on a much higher pedestal. Their sacrifice is
much more than that of those persons who have joined the
armed forces during normal service. Therefore, though the
grant of benefit of service rendered in the armed forces to ex-
servicemen who join during emergency may be justified, such
benefit may not be totally justified in the case of those ex-
servicemen who joined during normal times. Hon'ble apex
Court while upholding the judgment held as under :-
"7. These respondents challenged the decision of the
State Administrative Tribunal by filing writ petitions in
the High Court. The High Court has, vide impugned
judgment, partially struck down Rule 5(1) of the 1972
Rules. Relying upon the decision of this Court in Ram
Janam Singh Vs. State of Uttar Pradesh and another,
the High Court has held that such a benefit of counting
past service rendered in the armed forces would be
admissible only to those personnel who had joined the
forces during the period of Emergency 1 (1994) 2 SCC
622 and would be inadmissible in case of ex-
servicemen who had joined the armed forces at the
time of peace.
.
15. On this premise, the Court has held that the two
categories of ex-servicemen formed two separate
classes and are not equal to each other. Thus, latter
category is not entitled to counting of their service
rendered in armed forces for the purpose of their
seniority on joining the civilian post. Following this dicta
laid down in the aforesaid judgments, the High Court
has read down the rule in-question by limiting the
benefit of seniority only to that class of ex-servicemen
which joined armed forces during the period of
Emergency.
17. It becomes apparent from the aforesaid discussion
that while deciding against the appellants, the High
Court has followed the judgments of this Court and the
ratio has also been applied correctly. Therefore, the
judgment of the High Court cannot be faulted with.
Though, Mr. Paramjeet Singh Patwalia, learned senior
counsel for the appellant had tried to distinguish the
decision of this Court in Ram Janam Singh and
Chittranjan Singh Chima cases, with the submission
that the Rules in those two cases were different,
however, it is difficult to accept this contention of the
appellant having regard to the clear dicta and the ratio
behind the said judgments which has already been
discussed above."
In the instant case, respondent No.1 served Indian
Army from 6.12.1962 to 1.8.1967. The first national emergency
was declared from 26.10.1962 to 10.01.1968 during the Indo
China war. Thus respondent No.1 had served Indian Army
.
during emergency, therefore, in terms of law declared in R.K.
Barwal's case (supra), as an ex-serviceman, he definitely was
entitled to count his army service towards seniority, promotion
and pay fixation in State's employment. In this regard relevant
part of Rule 5 of the Demobilized Armed Forces Personnel
(Reservation of Vacancies in Himachal State Non-Technical
Services) Rules, 1972, as it stood originally, reads as under:-
"(1) Service rendered in the Armed forces, including
the period spent on training prior to Commission in
the case of Commissioned officers, shall count, in full
towards seniority and fixation of pay under the State
Government in the post to which he is first appointed
against the vacancy reserved under rule 3..............."
It is not the case of the petitioner that respondent
No.1 did not meet the eligibility criteria required for the post
under the Rules. Respondent No.1, therefore, is entitled to
count the services rendered by him in the Indian Army for the
purposes of seniority, promotion and pay-fixation etc. Rule 6 of
the Demobilised Armed Forces Rules 1972 provides for
overriding effect of these Rules notwithstanding anything
contrary contained in any other rules.
No other point was urged.
For the aforesaid reasons, we do not find any
.
merit in the instant petition and the same is accordingly
dismissed. Pending miscellaneous applications, if any shall
also stand disposed off.
(Tarlok Singh Chauhan )
Judge
r to ( Jyotsna Rewal Dua )
Judge
28th October, 2021 (rohit)
