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SUPREME COURT OF INDIA
K. RAMASWAMY AND N. P. SINGH, JJ.
Ram Janam Singh, Appellant
Versus
State of U.P. and another, Respondents.
Civil appeals Nos. 354 of 1994 and 355-59 of 1994 (arising out of SLP (C) Nos. 7674 of 1992 and 5249,6443,7684,16261 and 15556 of 1993), D/-25-1-1994.
AND
State of U.P. and another, etc. etc., Appellant
Versus
Rajendra Singh Malhan, etc. etc., Respondents.
Constitution of India - Article 309 - Uttar Pradesh Non-Technical Services Rules, 1968 - Rule 2(1) - U. P. Non-Technical Services Rules, 1980 - Rule 3(b) - U. P. Non- Technical Services Rules, 1973 - Rule 3(l) - Civil Appeal – Reservation - Vacancies for Demobilized Officers - Appeal has filed on behalf of appellant, who belongs to U. P. State Civil Service, for setting aside judgment of High Court, allowing writ application filed on behalf of Respondent No. 2 directing not to give effect to provisions for exclusion of period while determining seniority of said respondent in State Civil Service – Held, Appeal filed on behalf of State of U. P. for setting aside the judgments and orders passed by the High Court in different writ applications filed on behalf of the respondents of the appeals, for direction similar to the direction given by the High Court in favour of the aforesaid Shri .Vinod Kumar Kharbanda. Some of the writ applications were allowed in terms of the judgment of the High Court, in the case other writ applications were disposed of directing State Government to consider representations filed by writ petitioners in the light of the judgment of the High Court in the case of Shri Kharbanda. As we have set aside the judgment of the High Court in the case of Shri Kharbanda, these appeals are allowed and different judgments and orders of the High Court are set aside - Appeals allowed.
Judgment
N. P. SINGH, J.:- Leave granted.
2. This appeal has been filed on behalf of the appellant, who belongs to the U. P. State Civil Service, for setting aside the judgment of the High Court, allowing the writ application filed on behalf of Respondent No. 2, Vinod Kumar Kharbanda (hereinafter referred to as "the respondent"), directing not to give effect to the provisions of Rule 3(l) of U. P. Non- Technical (Class II) Services (Reservation of Vacancies for Demobilized Officers) Rules, 1973 and Rule 3(b) of U. P. Non-Technical (Class II /Group B) Services (Appointment of Demobilised Officers) Rules, 1980, for exclusion of the period from 11-1-1968 to 2-12-1971, while determining the seniority of the said respondent in the State Civil Service.
3. In exercise of the power under the proviso to Article 309 of the Constitution, the Uttar Pradesh Non-Technical (Class II) Services (Reservation of Vacancies for the Demobilised Officers) Rules, 1968 were framed. These Rules were to remain in force for a period of five years from the date of their commencement. Rule 2(1) provided that 20% of the permanent vacancies in a Non-Technical (Class II) Services to be filled up by direct recruitment through competitive examination in any year, shall be reserved for being filled in, "by the Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union, who were commissioned on or after November 1, 1962, and who are released at any time thereafter". Rule 4 provided the manner in which the seniority of candidates, who were appointed against the aforesaid reserved vacancies, was to be determined.
4. The aforesaid Rules were substituted by the Uttar Pradesh Non-Technical (Class II) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973. These Rules were also to remain in force for a period of five years from the date of their commencement. Rule 3 reserved 10% of the permanent vacancies in all Non-Technical (Class II) Services, to be filled substantively by direct recruitment through competitive examination in any year for "the Disabled Defence Officers, Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union, who were commissioned on or after November 1, 1962, but before January 10, 1968, and again on or after December 3, 1971 and released at any time thereafter". Regarding the seniority of candidates appointed against aforesaid reserved vacancies, it was said in Rule 6 that seniority "shall be determined on the assumption that they entered the service concerned at their second opportunity, of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination."
5. The aforesaid Rules were again substituted by the Uttar Pradesh Non-Technical (Class II/Group B) Services (Appointment of Demobilised Officers) Rule, 1980, which came into force with effect from August 6, 1978. In Rule 3(b)"Demobilised Officer" was defined to mean Disabled Defence Service Officer, Emergency Commissioned Officer and the Short Service Commissioned Officer, of the Armed Forces of the Union who was commissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter. In Rule 5 it was said that seniority of such persons shall be determined on the assumption that they entered the service concerned at the second opportunity of competing for recruitment, and they shall be assigned the same year of allotment, as to successful candidates of the relevant competitive examination.
6. The respondent filed the connected writ application alleging that he had been recruited for Short Service Commission in the Indian Army on 6th September, 1970 and was released from army on 3rd December, 1975. Later he was selected by the Public Service Commission and joined State Civil Service on 16th July, 1982. According to him, Rule 3(l) of the
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