Ex-servicemen are entitled to count approved military service for pay fixation from the date of joining civil employment, despite subsequent amendments to the rules.

JUDGMENT :

Jyotsna Rewal Dua, J.

Despite grant of final opportunity subject to payment of costs for filing reply, the respondents have not filed the same. Hence, the matter is taken up for hearing.

2. Petitioner was enrolled in Armed Forces on 22.02.1995. He retired from Armed Forces on 31.01.2012. Petitioner was re-employed in civil service as Trained Graduate Teacher on 07.06.2017 on contract basis against the post reserved for Ex-servicemen. His services were regularized on 28.10.2020. Petitioner’s grievance is that the respondents have not granted the benefit of approved military service of the petitioner towards fixation of his pay.

3. Learned counsel for the petitioner submits that the case of the petitioner for grant of benefit of approved military service towards fixation of pay from the date of joining the civil employment 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 Deputy Advocate General disputes the above fact and submits that the benefit of approved military service to the petitioner towards fixation of pay in civil employment was denied 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’.

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

The aforesaid amendment carried out vide notification dated 29.01.2018, 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 issuing Notifications dated 29.1.2018 and 30.1.2018 has attempted to deny benefit of approved military service to the Ex-serviceman for the purpose of pay fixation. Vide communication dated 30.1.2018, issued by Additional Chief Secretary to the Government of Himachal Pradesh to various offic