Point of law : Right of Ex-serviceman to avail the benefit of counting approved military service towards fixation of pay in terms of sub-rule (1) of rule 5 of 1972 rules cannot be denied/defeated even if an Ex-serviceman had not joined Armed Forces during emergency.

JUDGMENT :

Since common question of law is involved in all the above captioned appeals and petitions and facts of the case are almost similar, this court after having clubbed all the cases heard them together and same are now being disposed of vide this common judgment. However, for the sake of clarity, facts of CWP No. 6443 of 2021 are being discussed herein below.

2. The petitioner who is an Ex-serviceman. after being retired from the armed forces, joined civil employment in the State of Himachal Pradesh as a Trained Graduate Teacher (Arts) with Education Department on 28.6.2016, on contract basis and thereafter his services were regularized on 23.11.2019.

3. State of Himachal Pradesh framed the Demobilised Armed Forces Personnel (Reservation Of Vacancies In The Himachal State Non-Technical Services) Rules, 1972 (hereinafter, ‘Rules 1972’) in order to provide benefits to the Ex-servicemen. Primarily we are concerned with rules 3 (1) and 5(1), which read as under:

“3. Reservation of vacancies: (1) [Fifteen percent of the vacancies in respect of all post viz. Class I, II, III and IV to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel or ex-servicemen who joined service or were commissioned on or after the 1st day of November, 1962 and are released any time thereafter. This 15% reservation in Class III and IV post will also include appointment of one dependent each of the family of those Defence Services Personnel who were killed in action or were disabled in action and rendered unfit for civil employment. Such dependent shall have to fulfil the requirements of the Recruitment and Promotion Rules of the post's to which they will be appointed, but they shall not be entitled for other benefits/concessions such as fixation of pay and seniority under rule 5(1):

Provided that whatever vacancies are left over due to non-availability of suitable ex-servicemen who joined service or were commissioned on or after 1st day of November, 1962, and the dependents a as provided above will be filled by suitable ex-servicemen who joined service or were commissioned before 1st day of November, 1962. The concession such as relaxation in age as provided in these rules shall also be admissible to such ex-servicemen. However, the benefit of counting the period of approved military service for the purpose of fixation of seniority and pay as provided in rule 5(1) of these rules, shall not be admissible to such ex-servicemen.

5. Seniority and pay: (1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant Rules, shall count towards fixation of pay and seniority in that service. (This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under State/Central Govt. against reserved posts).”

4. As per rule 3(1), fifteen percent of the vacancies in respect of all posts viz. Class I, II, III and IV to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel or ex-servicemen who joined service or were commissioned on or after the 1st day of November, 1962.

5. Rule 5(1) further provides that period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant Rules, shall count towards fixation of pay and seniority in that service. However, such benefit shall be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under State/Central Govt. against reserved posts.

6. It is pertinent to take note of the fact that some of the person