Ex-servicemen are entitled to count approved military service towards pay fixation, regardless of subsequent amendments, if appointed before the amendment's enactment.

JUDGMENT :

Jyotsna Rewal Dua, J.

Despite grant of final opportunity to the respondents to file reply to this writ petition under order dated 26.03.2025, reply has still not been filed.

With the consent of learned counsel for the parties, the matter is heard at this stage.

2. Petitioner was enrolled in Military Service on 27.06.1992. He was released from Military Service on 28.02.2013. Petitioner, as an ex-serviceman was re- employed in civil service as Physical Education Teacher (PET) on 21.11.2016 on contract basis. His services were regularized on 20.05.2020. Dispute in this petition is for grant of benefit of approved military service to the petitioner towards fixation of his pay in civil employment from the initial date of joining the same.

3. Learned counsel for the petitioner submits that the case of the petitioner for the relief claimed by him is squarely covered by the decision rendered in Babu Ram Versus State of Himachal Pradesh and others, CWP No.6443 of 2021 , decided alongwith connected matters on 09.05.2022. Learned counsel further submits that the petitioner did Army Institute Basic Course in the year 1998, which is equivalent to PET.

4. Heard learned counsel for the parties and considered the case file.

Learned Additional Advocate General opposes grant of the benefit of approved military service to the petitioner towards fixation of pay in civil employment primarily on the ground that vide notification dated 29.01.2018, the Department of Personnel, Government of Himachal Pradesh had amended Rule 5(1) of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972 . As per the amendment, ‘only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment to the service concerned, by the candidate(s) appointed against reserved vacancy under the relevant rules, shall count towards fixation of pay in that service at the time of first civil appointment against reserved vacancy. This benefit shall not be admissible in subsequent appointment(s) of Ex Servicemen who are already employed under the State/Central Government against reserved post(s): Provided that such fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time’. Respondents’ stand is that the petitioner had obtained minimum qualification for the post of Junior Office Assistant (IT) in the year 2007, hence, benefit of approved military service cannot be granted to him.

The aforesaid amendment was considered in Babu Ram’s (supra) case. The moot issue, which was determined in the said case was as to whether the benefit of approved military service for the purpose of pay fixation in terms of Rule 5(1) of 1972 Rules could be denied to the Ex-servicemen in terms of amendment carried out vide notification dated 29.01.2018, which provided that only the period of approved military service rendered after attaining minimum age and educational qualification prescribed for the service concerned by the candidate against reserved vacancy shall be counted towards fixation of pay in that service at the time of first civil employment against reserved vacancy. The Court held as under:-

“19.Now drawing strength from the aforesaid amendment carried out in the said rule, benefit of approved military service towards fixation of pay is being restricted to the period of approved military service, rendered after attaining the minimum age and educational qualification prescribed for the post, on which such Ex-serviceman is appointed.

20. Since it is quite apparent from the judgment in V.K. Behal supra, that rule 5(1) has been read down to the extent it had provided benefit of counting approved military service towards seniority in the service, there cannot be any dispute qua the entitlement of Ex- serviceman for counting of approved military service towards fixation of pay. However, in the cases at hand, State by way of issui