The benefit of counting past army service towards seniority in civil employment for ex-servicemen who did not join the Armed forces during the period of emergency was held to be unconstitutional, and the benefit of such service cannot be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria prescribed in the rules.

JUDGMENT :

Deepak Gupta, J.

1. This Writ Petition is directed against the order of the learned H.P. State Administrative Tribunal dated January 12, 2001 passed in O.A. No. 191 of 1999 whereby the Original Application filed by the petitioners and respondents No. 6&7 herein was rejected.

2. Briefly stated, the facts are that the petitioners and the private respondents are all working in the Prosecution Department of the State of Himachal Pradesh. They were selected as Assistant District Attorneys on different dates. The petitioners, by means of the O.A. and by means of the present petition have challenged the constitutional validity of the Demobilized Armed Forces Personnel (Reservation of vacancies in the Himachal Pradesh State Non- Technical Services) Rules, 1972 (hereinafter referred to as the Rules). Rule 5(i) of the aforesaid Rules as originally notified on 28.3.1972 read as follows:

"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."

3. This rule was amended vide notification dated 6.12.1980 to read as follows:

"Seniority and pay of the candidates who are appointed against the vacancies reserved under Rule 3 shall be determined on the assumption that they joined the service or the post, as the case may be, under the State Govt. at the first opportunity they had after they joined the military service or training prior to the Commission."

4. The aforesaid provision was against amended and now the provision reads as follows:

"(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 the State/Central Govt. against reserved posts."

5. The petitioners challenge the validity of this Rule on various counts.

6. We have heard Shri Dalip Sharma, learned counsel for the petitioners, Sh.R.M. Bisht, learned Deputy Advocate General for respondents 1&2 and S/Sh.Bhuvnesh Sharma, Ajay Chandel and Surinder Sharma, counsel for private respondents and the interveners.

7. The main contention raised on behalf of the petitioners by Sh.Dalip Sharma is that the Rules are unconstitutional because they give benefit to even those ex-servicemen who had not joined service in the armed forces during the period of emergency. According to the petitioners, the persons who join the armed forces when the situation in the Country is normal do not do anything extra-ordinary and they join the armed forces like any other career and therefore there is no rationale for giving them benefit of the service rendered by them in the armed forces for the purposes of pay and seniority. Sh.Dalip Sharma, learned counsel for the petitioners has urged that he is not in any manner arguing that the ex-servicemen do not form a separate class. He submits that to satisfy the tests of Article 14 not only should the classification be justified but there should be a reasonable nexus with the object sought to be achieved. It is his submission that if the object is to rehabilitate the ex-serviceman this object is served by providing reservations to them. However, according to him, there is no justification in granting them the benefit of seniority by adding the period of service rendered by them in the Army. He submits that once the persons are recruited from various sources and become members of one service no further distinction can be made between them on the ground of the past service rendered in a totally unrelated employment. I