Ex-servicemen are entitled to count approved military service for pay fixation despite amendments to relevant rules, as prior judicial decisions affirm this entitlement.

JUDGMENT :

(Sandeep Sharma, J.)

By way of instant petition, petitioner has prayed for following main reliefs:

“(i) That the Respondents may kindly be directed to re-fix the pay of the petitioner by giving benefit of full military service i.e.16 years.

(ii) The Respondents may kindly be directed to pay the interest @ 9% on the amount of arrear of pay fixation which was unreasonably denied to the petitioner till date.”

2. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Ramesh Kaundal, learned counsel representing the petitioner, is that benefit of approved military service for the purpose of fixation of pay cannot be denied in terms of amendment carried out in Rule 5 of new Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal Pradesh State Non-Technical Services) Rules, 1972 (in short “Rules”), rather in terms of aforesaid notification, period of approved military service rendered prior to attaining the minimum age and educational qualification prescribed for appointment to the relevant services by the candidates appointed against reserved vacancies shall not be taken into consideration for the purpose of seniority.

3. Though, by way of filing detailed reply to the petition, claim of the petitioner, as has been put-forth in the petition, has been seriously refuted by the respondents, but it is not in dispute that issue raised in the instant proceedings already stands adjudicated by Division Bench of this Court in CWP No. 6443 of 2021 titled as Babu Ram Vs. State of Himachal Pradesh alongwith connected matters, wherein moot question was that whether the benefit of approved military service for the purpose of pay fixation in terms of sub-rule 1 of rule 5 of Rules, 1972, can be denied to the Ex-servicemen in terms of amendment carried out in aforesaid Rule vide Notification dated 29.1.2018, wherein it came to be provided that 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 count towards fixation of pay in that service at the time of first civil employment against reserved vacancy. In afore case, Division Bench of this Court having taken note of its earlier judgment rendered in CWP No. 488 of 2001 titled as V.K.Behal & Ors. Vs. State of Himachal Pradesh & Ors., which was subsequently affirmed by Hon’ble Apex Court held in R.K. Bharwal’s case that in all cases, past service in the Armed Forces shall be counted from the date, when Ex-serviceman acquired the minimum educational qualification and no benefit can be given for army service rendered prior to attaining such qualification. Division Bench of this Court in aforesaid judgment held that once it is apparent from the judgment in V.K.Behal (supra) that rule 5(1) of the Rules are read down to the extent it provided for 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. It would be apt to take note of following paras of the aforesaid judgment.

“12. Being aggrieved and dissatisfied with aforesaid judgments rendered by learned Single Judges in cases detailed herein above, State has filed Letters Patent Appeals captioned herein above, praying therein to set aside judgments passed by learned Single Judges and uphold its action in denying benefit of approved military service for the purpose of fixation of pay, to those persons, who had not attained minimum age and educational qualification prescribed for the service concerned, while being appointed to the posts reserved for that category.

13. Moot question, which needs to be determined /adjudicated in the cases at hand is that, whether the benefit of approved military service for the purpose of pay fixation in terms of sub-rule 1 of rule 5 of Rules, 1972, can be denie