1. Challenge to rules providing reservation and counting of military service for seniority and pay for released armed forces personnel in non-technical state services. (Para 2 , 3 , 6 )
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2017 Supreme(SC) 1290
SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
R.K. Barwal & Others - Appellants
Versus
The State of Himachal Pradesh & Others - Respondents
Civil Appeal Nos. 011060, 011061 & 011062 of 2017 (Arising Out of SLP (C) Nos. 8710, 14361 of 2009 & 19750 of 2011); Special Leave Petition (C) No. 22416 of 2017 (Arising Out of SLP (C) ....... D. No. 20104 of 2017) & Civil Appeal No. 657 of 2016
Decided On : 25-08-2017
Important Points
The benefit of counting past service and military service for the purposes of seniority should be limited to personnel who joined armed forces during the period of emergency due to foreign aggression, and the benefit of military service should be given only from the date when the minimum eligibility criteria for the post is fulfilled.
Subject
Employment Law - Armed Forces Personnel Rights
Act Referred
CONSTITUTION OF INDIA: Art.309, Art.14, Art.16
HIMACHAL PRADESH ADMINISTRATIVE SERVICE RULES: R.5(1)
HIMACHAL PRADESH STATE NON-TECHNICAL SERVICES RULES: R.3(1), R.5(1)
HIMACHAL PRADESH ADMINISTRATIVE SERVICE RULES: R.5(1)
HIMACHAL PRADESH STATE NON-TECHNICAL SERVICES RULES: R.3(1), R.5(1)
Headnote
Demobilized Armed Forces Personnel - Validity of ‘Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh State Non-Technical Services) Rules, 1972 - Rules 3(1) and 5(1) - Benefit of counting approved military service for fixation of pay and seniority - Validity of Rules challenged - High Court partially struck down Rule 5(1) - Benefit of counting past service restricted to personnel who joined armed forces during Emergency - Benefit of seniority restricted to those who joined armed forces during Emergency - Benefit of military service to be given only from the date when minimum eligibility criteria for the post is fulfilled
Fact of the Case:
The appellants, Released Armed Forces Personnel, were given the benefit of their approved military service for the purposes of fixation of their pay and seniority as Assistant District Attorneys in the State of Himachal Pradesh under the 1972 Rules. This resulted in them being given seniority over and above some appointees who came in the general category and were appointed earlier. Respondent Nos. 3 to 5 challenged the validity of Rule 5(1) of 1972 Rules, which conferred benefit of counting of approved military service upon the appellants towards fixation of their seniority. The State Administrative Tribunal upheld the validity of Rule 5(1), but the High Court partially struck it down, restricting the benefit of counting past service to personnel who joined armed forces during Emergency.
Finding of the Court:
The High Court held that the benefit of counting past service should be limited to those who joined during the period of emergency only, as extending the benefit to all ex-servicemen would affect the efficiency of service and cause heartburn among those placed lower in seniority to ex-servicemen. The Court also found that the benefit of military service was being given to those who did not fulfill the minimum educational criteria for the service, affecting efficiency and causing heartburn among competent persons placed lower in seniority.
Issues: The issues revolved around the validity of Rule 5(1) of the 1972 Rules, which conferred benefit of counting approved military service for the purposes of fixation of seniority, and the extent to which the benefit of military service should be given to ex-servicemen.
Ratio Decidendi: The Court held that the benefit of counting past service should be limited to those who joined armed forces during the period of emergency due to foreign aggression, as the sacrifice of such personnel in armed forces during war times is much more than those who joined during peace time. The Court also held that the benefit of military service should be given only from the date when the minimum eligibility criteria for the post is fulfilled.
Final Decision: The appeals challenging the High Court's judgment were dismissed, and the State's appeal was also dismissed. The Court upheld the restriction of the benefit of counting past service to personnel who joined armed forces during Emergency and the restriction of the benefit of military service to the date when minimum eligibility criteria for the post is fulfilled.
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellants : Mr. Paramjeet Singh, Patwalia, Mr. Vikas Mahajan, Mr. Vinod Sharma, Mr. Vishal Mahajan, Mr. S.S. Rai, Mr. Varinder Kumar Sharma, Ms. Pragati Neekhra, Mr. Bhaskar Y. Kulkarni, Mr. Rajeev Sharma, Mr. Naresh K. Sharma, Mr. Sahil Bhalaik
For the Respondents: Mr. Rajeev Kumar Bansal, Mr. Brahma Prakash, Mr. Akshay K. Ghai, Mr. Balraj Dewan, Mr. Naresh K. Sharma, Mr. Himinder Lal, Mr. Aditya Dhawan, Ms. Kiran Dhawan
Advocate Appeared:
For the Appellants : Mr. Paramjeet Singh, Patwalia, Mr. Vikas Mahajan, Mr. Vinod Sharma, Mr. Vishal Mahajan, Mr. S.S. Rai, Mr. Varinder Kumar Sharma, Ms. Pragati Neekhra, Mr. Bhaskar Y. Kulkarni, Mr. Rajeev Sharma, Mr. Naresh K. Sharma, Mr. Sahil Bhalaik
For the Respondents: Mr. Rajeev Kumar Bansal, Mr. Brahma Prakash, Mr. Akshay K. Ghai, Mr. Balraj Dewan, Mr. Naresh K. Sharma, Mr. Himinder Lal, Mr. Aditya Dhawan, Ms. Kiran Dhawan
Table of Contents
2. Whether the distinction between personnel joining during emergency versus peace time is valid, and if current security conditions blur this distinction for seniority benefits. (Para 18 , 19 , 21 , 23 )
3. Seniority is typically based on entry date; exceptions for emergency-period recruits are justified by sacrifice, whereas peace-time recruits join as a professional career choice. (Para 10 , 14 , 27 )
4. Counting military service for seniority in civil employment is permissible only for personnel commissioned during national emergencies, not for those joining during peace time. (Para 14 , 27 , 28 )
5. Appeals dismissed; High Court judgment upholding the limitation of seniority benefits to emergency-period recruits affirmed. (Para 33 , 34 , 35 )
6. Can ex-servicemen count their military service for seniority in civil employment?
Yes, but only if they were commissioned during a national emergency due to foreign aggression. Those who joined during peace time as a career choice are not entitled to this benefit as they stand on a different footing from emergency recruits. (Para 14 , 27 , 28 )
7. What is the general rule for determining inter se seniority in public service?
Seniority is determined with reference to the date of entry into the service, which is consistent with the requirements of Articles 14 and 16 of the Constitution. (Para 10 , 27 )
8. Can military service be counted for seniority if the person lacked minimum educational qualifications during that period?
No. The benefit of past military service for seniority can only be granted from the date the person attained the minimum eligibility criteria prescribed in the rules for the post to which they are appointed. (Para 30 , 31 )
9. Is providing a reservation quota for ex-servicemen in civil services constitutionally valid?
Yes, providing a reservation quota within reasonable limits for the rehabilitation of ex-servicemen is permissible and does not offend Article 14, as there is an intelligible differentia having a nexus with the objective. (Para 13 )
JUDGMENT :
A.K. Sikri, J.
Leave granted in Special Leave Petition (Civil) Nos. 8710 of 2009, 14361 of 2009 and 19750 of 2011.
2. In all these appeals, issue relates to the validity of ‘Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh State Non-Technical Services) Rules, 1972 (hereinafter referred to as the ‘1972 Rules’). These 1972 Rules provide for reservation to the Released Indian Armed Forces Personnel in non-technical services in the State of Himachal Pradesh. Provision is also made in the 1972 Rules for conferring the benefit of counting approved military service of such Released Armed Forces Personnel for the purpose of fixation of their seniority and pay in civil employment. It is the validity of these Rules which is the subject matter in most of these appeals. However, for the sake of convenience and better understanding, we would take note of the events from Civil Appeal No.____ of 2017 @ SLP (C) No. 8710 of 2009.
3. The appellants in these appeals are Released Armed Forces Personnel. They were initially taken in the Army where they served for few years and after serving for certain years, they were released from the Army. Still young and far away from the age of retirement that is prescribed for civilian post, they applied for the post of Assistant District Attorney in the State of Himachal Pradesh (hereinafter referred to as the ‘State’) and were successful in getting appointment as Assistant District Attorneys with the Department of Prosecution of the State. In terms of 1972 Rules, they were accorded the benefit of their approved military service for the purposes of fixation of their pay and seniority as Assistant District Attorneys. Details of appointments of these appellants are as under:
Appellant’s Name
Date of Joining Armed Forces and rank
Date of release from Armed forces and rank
Date of joining civil employment (prosecution department)
Date of acquiring essential qualification
Deemed date of appointment
R.K. Barwal (Appellant No. 1)
24.04.1981 (As Airman)
10.09.1997 (As Sergeant)
28.12.2001 (Appointed as ADA/APP)
1991 (LLB) + 2 years experience
20.03.1989 (By giving 12 years antedated seniority)
D.S. Parmar (Appellant No. 2)
21.06.1986 (As Havaldar Clerk)
21.07.2001 (As Naib-Subedar)
19.10.2006 (Appointed as ADA/APP)
1991 (LLB) + 2 years experience
09.09.1991 (By giving 15 years antedated seniority)
S.S. Pathania (Appellant No. 3)
16.01.1980 (As Seaman)
28.02.1999 (As Master At Arms)
18.11.2003 (Appointed as ADA/APP)
1997 (LLB) + 2 years experience
29.08.1986 (By giving 17 years seniority)
N.S. Verma (Appellant No. 4)
08.01.1974 (As Seaman)
31.01.1989 (As Petty Officer)
20.09.1996 (Appointed as ADA/APP)
1984 (LLB) + 2 years experience
20.03.1989 (By giving 12 years seniority)
As is clear from the aforesaid chart, though these appellants joined as Assistant District Attorneys with the State on later dates, they were given the seniority from the back/earlier date with the application of 1972 Rules by counting their approved military service. Their pay was also fixed accordingly.
4. At this stage, we may reproduce the relevant provisions of 1972 Rules. Primarily, we are concerned with Rules 3(1) and 5 (1). The Preamble as well as the aforesaid Rules of the 1972 Rules read as under:
“Preamble
No. 11-76/71-GA-A - In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, and all other powers enabling him in this behalf, the Governor, Himachal Pradesh, hereby makes the following Rules regulating the reservation of vacancies in Himachal State, Non-Technical Services, for the Demobilised Emergency Commission Officers, Short Service Regular Commission Officers, Junior Commissioned Officers, Non-Commissioned Officers and other Ranks of the Armed Forces of the Indi
