Sanjay Singh vs State Of Uttarakhand And Others
2021 Latest Caselaw 5177 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL
                     Writ Petition (S/S) No.1966 of 2018

Sanjay Singh                                                   .....Petitioner

                                        Versus
State of Uttarakhand and others                                .... Respondents
Present :-
Mr. Anil Anthwal, Advocate, for the petitioner.
Mr. Narain Dutt, Brief Holder, for the State of Uttarakhand.

                                                    Dated: 16th December, 2021
                                JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The IA No. 12993 of 2021, filed by respondent No.4, along with supplementary counter affidavit is taken on record.

2. The matter is listed on an Urgency Application No. 12994 of 2021, preferred by the petitioner, the same would stand allowed.

3. With the consent of the parties, the Writ Petition is being heard on its own merit.

4. The petitioner to the present Writ Petition had prayed for issuance of a writ of mandamus, commanding the respondents to take into account the services rendered by the petitioner in the Armed Forces, for the purposes of the re-fixation of his pay scale and service benefits, after being re-engaged in the Police Department, to be determined after inclusion of the period of services rendered with the Indian Army.

5. Few facts, which are apparent on records are, that according to the case of the petitioner, the petitioner was selected and was later enrolled in the Indian Armed Forces on 16th July, 1993, and

after qualifying the training, he joined the armed force services as a soldier and after rendering 15 years of services in the Indian Armed Forces, he was discharged from the Armed Forces on 31st August, 2008. Subsequent thereto, the writ petitioner is shown to have joined his services as a constable with the respondents w.e.f. 4th April, 2011, and had discharged services in the said capacity as a Constable in the Civil Police, and hence, his grievance raised in the Writ Petition has been, that after his absorption as a Constable in the State Police Services, after rendering the services from 1993 till 31st August 2008, in the Indian Armed Forces, the same was required to be taken into consideration for the purposes of grant of the service benefits and re- fixation of his scale. He submits that despite of having repeatedly represented his case before the respondents, when no action was taken, he had preferred this Writ Petition.

6. The learned counsel for the petitioner submitted, that the issue pertaining to the inclusion of the service period, for the grant of service benefits on the subsequent engagement, after having discharged from the Armed Forces, was a subject matter, which was initially agitated before the Division Bench of this Court in Writ Petition (S/B) No. 50 of 2005, T.P. Kundaliya Vs. State of Uttarakhand and others, wherein, the learned Division Bench of this Court vide its decision rendered on 4th July, 2005, has held that on the basis of the judgment of the Hon'ble Apex Court and, as well as that of the Allahabad High Court, as rendered in Writ Petition to 29711 of 1992, the petitioner's services, which he has rendered in the Armed Forces after being commissioned, on completion of training is required to be taken into consideration for the purposes of extension of the service benefits after having been absorbed in the Transport Department, (as it was in that case) and that should be taken into consideration for the purposes of even determination of seniority. The relevant part of the judgement of the Division Bench has observed in para 7, 8 and 9 as under :-

"7. The first respondent has no case that the petitioner's case is not similar to that of Jitendra Nath, respondent in Civil Appeal Nos. 837 and 838 of 1995 before the Supreme Court. The only contention is that the benefit of the order of the Supreme Court in Civil Appeal No. 837 and 838 of 1995 (Annexure 7 to the writ petition) can be claimed only by the said Jitendra Nath. However, when the petitioner's case is admittedly similar to that of Jitendra Nath and when the petitioner claims the same benefit which was extended to Sri Jitendra Nath, there is no reason why the petitioner should be treated differently from the said Jitendra Nath. In our view, since the case of the petitioner is similar to the case of Sri Jitendra Nath whose claim was upheld by the Hon'ble Supreme Court, the petitioner also is entitled to the benefit extended to Sri Jitendra Nath. In this view of the matter Annexure 11 order is liable to be quashed and the first respondent is liable to be directed to extend to the petitioner the benefit extended to Sri Jitendra Nath and to take into account the Army service rendered by the petitioner for fixing his seniority in the Transport Department.

8. Mr. B.D.Kandpal, learned Standing Counsel for the first respondent submitted that unless the judgment of the Supreme Court in Civil Appeal No.358 of 1994 filed by the State of Uttar Pradesh against the judgment of the High Court of Allahabad in Writ Petition No. 29711 of 1992 filed by the petitioner, is not reviewed, the petitioner cannot be granted the relief sought in this writ petition. We do not find any merit in this contention. In the judgment of the Supreme Court in Civil Appeal No.358 of 1994, the only issue considered and decided was whether the classification between the officers, who were commissioned prior to 10th January, 1968 and after 10th January, 1968 was discriminatory or not. The question whether an officer who had joined the training prior to 10th January, 1968 and on successful completion of the training was commissioned after 10th of January, 1968 is entitled to the benefit under the Rules, was not considered or decided by the High Court or the Supreme Court in the earlier case. The above question was considered and decided by the High Court and the Supreme Court only in Jitendra Nath's case. In Jitendra Nath's case, both High Court of Allahabad and the Supreme Court of India held that an officer who had joined the training prior to 10th January, 1968 and on successful completion of training was commissioned after 10th January, 1968 is entitled to the benefit under the Rules. Hence, the judgment of the Supreme Court in Civil Appeal No. 358 of 1994 does not stand in the way of allowing the prayer in this writ petition.

9. In the above circumstances, the writ petition is allowed. Annexure 11 order is quashed. The first respondent is directed to take into account the Army service rendered by the petitioner in fixing his seniority in the Transport

Department of the first respondent. The first respondent shall reconsider Annexure 9 representation of the petitioner and pass fresh orders in the light of the above directions as expeditiously as possible and at any rate within a period of two months from the date of the receipt of a copy of this judgment"

7. This judgement of the learned Division Bench, it is not the case of the respondents ever pleaded that was ever put to challenge before the Hon'ble Apex Court or was ever set aside by the Hon'ble Apex Court, hence the same ratio will still hold good in the eyes of law and not even that based on the same principles, yet another Division Bench of this Court in Writ Petition No. 231 (S/B) of 2006, Ravindra Singh Nayal Vs. State of Uttaranchal and others, while making reference to the judgement of 4th July, 2005, had the extended identical benefit and thereby directed, that the services rendered by the petitioner therein, in the Indian Armed Forces is to be taken into consideration for the purposes of fixation of seniority in the Police Department from the date of the receipt of the certified copy of the judgement and also for the purposes of extension of other service benefits. The relevant part of the judgement rendered by the Division Bench on 4th November, 2006, is extracted hereunder :-

"Hon'ble Supreme Court while dismissing the Civil Appeal Nos. 837 and 838 of 1995 filed by the State of Uttar Pradesh held that Sri Jitendra Nath who joined the Army for training on 17.08.1967 and was commissioned only on 23.06.1968 was entitled to the benefits as he was undergoing training w.e.f. 17.08.1967. Considering the effect of Rule 3 of the above-mentioned Rules and the need for undergoing actual training before the commissioning of officers, the Supreme Court held that officers like Jitendra Nath also are entitled to the benefit of the Rules.

According to the petitioner, he was selected in the Indian Army and was sent for training on 08.12.1967 and thereafter, had been commissioned as Officer on 12.01.1969. The aforesaid controversy has also been dealt with the Division Bench of this High Court in Writ Petition No. 50 (SB) of 2005 [T.P. Kundaliya Vs. State and another] decided on 04.07.2005.

It is disputed by the respondents that the case of the petitioner is similar to the case of T. P. Kundaliya, petitioner in writ petitin no. 50 (SB) of 2005 decided by this court, as such, he is entitle for the same relief.

In view of the above, writ petition deserves to be allowed. Writ Petition is allowed. Service rendered by the petitioner in Indian Army shall be taken into consideration for fixing the seniority in the Police Department within a period of two months from the date of receipt of copy of this judgement. Interim relief application no. 113457 of 2006 is disposed of accordingly. No order as to costs."

8. In fact, the subsequent judgement of the Division Bench too, while recording its finding has foundationed its judgement based on the observations which were made in para 7, 8, and 9 of the earlier judgement of the Division Bench, which has been extracted above.

9. The aforesaid principles laid down by the Division Bench is being sought to be controverted by the learned Brief Holder, based on the fact, that on the basis of the circular issued, in fact, there was a gap between the petitioner's engagement in the Police Department and from the date of his discharge from the Armed Forces, and there was no continuity of services as such, hence, the petitioner would not be entitled for extension of same benefits in the light of the provisions, which has been referred therein by the learned Brief Holder, as it has been appended with the supplementary counter affidavit.

10. The reference made to the Notification No.214 dated 18th November, 2015, is on the pretext that under the amended provisions, by virtue of which, an amendment was made in Uttarakhand Sevanivrti Labh (Sansodhan) Niyamawali, 2016, in fact, it was attempted to be conveyed, and convinced, that when there is a time gap between the engagement from the date of the discharge from the Armed Forces, in that eventuality, the continuity of services is broken and the period of services rendered in the Armed Forces will not be taken into consideration for the fixation of the service benefits and also for the purposes of determination of seniority.

11. This contention of the learned Brief Holder in the light of the aforesaid Notification dated 18th November 2015, is not acceptable by this Court for the reason being that, if the judgement of the Division Bench dated 4th November, 2006, is taken into consideration, in fact, in principle and factually, it was akin to the case at hand, because thereto the petitioner, who claimed the re-fixation of the service benefits, after including the services rendered by him in the Armed Forces was based upon the same facts, wherein, the petitioner therein in the said Writ Petition, was discharged from Indian Army on 9th April, 1979, and he was much later on engaged in the Police Department of the State, much thereafter in 1983. It was under those circumstances, where there was a gap of beyond three years in the re- engagement, and hence, it is quite obvious and logical also, because immediately after the discharge from the Indian Armed Forces, it may not be a situation, where always a person thus discharged from the Indian Army, would be readily made available with the services immediately thereafter, the date of the discharge and it quite obviously engages certain time period for him to get himself suitably appointed after searching a job according to his suitability, in any other Government Departments and that time gap, when the endeavour are being made by the person concerned to be reengaged after the discharge from the Indian Army cannot be for all practical purposes be treated as to be a break into the services in order to create an impediment in the extension of the service benefits, after including the period of services rendered by the person in the Armed Forces, and particularly, in the judgement of the Division Bench of this Court, which has attained finality i.e. dated 4th November, 2006, thereto, the situation prevailing was the same, where the discharge date was of 9th April, 1979, and the engagement in the Police services was of 14th January, 1983.

12. Since this principles laid down by the Division Bench had quite categorically laid down, that the services rendered by the person in the Indian Armed services cannot be laid to futility due to its

non-consideration for the extension of benefits, when a person is subsequently engaged in a State Department.

13. Hence, I am of the considered view that the embargo, which has been sought to be attracted by applying the Notification No. 214 dated 18th November, 2015, in view of the amendment, which was made in 2016, it will not be applicable in the light of the judicial precedents laid down by this Court, and particularly, because of the fact when the petitioner in the instant case was discharged from the Indian Army only on 31st August, 2008, and he was re-engaged in the State Police Force on 4th April, 2011, i.e. much prior to the amendment, which was made by the State Government by virtue of the Notification dated 18th November, 2015. When the right of the petitioner has matured under the then prevalent Rules, based on the judicial precedence, the same cannot be clouded by way of a subsequent amendment made by the State by virtue of the Notification of 18th November, 2015, or an executive directions.

14. In that eventuality, the Writ Petition is allowed. The respondents are directed to re-fix the pay scale payable to the petitioner and the consequential benefits flowing from it, after including therein the period of services which has been rendered by the petitioner in the Indian Armed Forces, after his commission in the Army on 16th July, 1993, and from the date of his discharge on 31st August, 2008, and his subsequent re-engagement in the Police and extend all the service benefits accordingly in the light of the principles of the Division Bench judgement, within a period of two months from the date of production of certified copy of this judgement.

15. Subject to the above observations, the Writ Petition stands allowed.

(Sharad Kumar Sharma, J.) 16.12.2021 Shiv