An ex-serviceman on contract can seek nomination for another post reserved for ex-servicemen, as current employment does not constitute civil employment under applicable rules.

JUDGMENT :

Jyotsna Rewal Dua, J.

Petitioner is an ex-serviceman, presently serving as Junior Engineer (Civil) on Contract basis in Himachal Urban Development Authority (HIMUDA), where he had joined through the agency of Ex-servicemen Cell-respondents No.2 & 3 in December 2023. In the year 2024, several vacancies in different departments of the State meant to be filled up from ex-servicemen were notified. These were to be filled up through the Ex-servicemen Cell-respondents No.2 & 3. Petitioner was interested for the post of Junior Engineer (Civil) in Jal Shakti Department, Shimla notified at Serial No.74 & 75 of Annexure P-2. He, accordingly, represented on 10.09.2024 (Annexure P-1) to respondents No.2 & 3 to sponsor his name & to allow him to participate in the Screening process for the aforesaid post. Respondents No.2 & 3 did not oblige, hence, this writ petition.

2. Submissions

2(i) Learned Advocate General and learned counsel for respondents No.2 & 3 contend that having once been employed on a civil post as an ex-serviceman through respondents No.2 & 3, the petitioner can seek appointment against another civil post as an ex-serviceman only if the other is a post higher to the post currently held by the petitioner. The petitioner is presently serving as Junior Engineer (Civil) in HIMUDA on contract basis. He is now seeking employment again as Junior Engineer (Civil) in Jal Shakti Department of the State. Junior Engineer (Civil) in Jal Shakti Department is not a post higher to the post of Junior Engineer (Civil) HIMUDA. The post remains the same i.e. Junior Engineer (Civil). Therefore, petitioner’s name had rightly not been sponsored by respondents No.2 & 3 for the post in question. In support of this submission, reliance was placed upon following contents of an office letter dated 21.02.2009 (Annexure R-1):-

“Dated Shimla-171002, the 21^st February, 2009

From

The Secretary (Personnel) to the

Government of Himachal Pradesh

To

The Director

Sainik Welfare Department

H.P. at Hamirpur, 177001.

Subject:- Clarification with regard to considering the Ex-servicemen already nominated/appointed on contract basis for higher job on contract bases again.

I am directed to refer to your letter No. DSW-EMP (Ex-cell) 4/76 dated 10^th October, 2008 and subsequent reminder of even number dated 5-11-2008 on the above subject and and to say that employment on contract basis is not to be termed as civil employment. The first civil employment would mean that employment which is regular and where the official is given the benefit of reservation as ex-servicemen.

Keeping in view the above position, the ex-servicemen once nominated/appointed on contractual basis can be considered again against higher post against a vacancy reserved for ex-servicemen on the basis of their seniority in the "Live Register' till they are appointed on regular basis.

Yours Faithfully

Deputy Secretary (Personnel) to

the Government of Himachal Pradesh”

2(ii) Learned counsel for the petitioner argued that petitioner is serving at present as Junior Engineer (Civil) in HIMUDA through respondents No.2 & 3. The post is not regular but on contractual basis and further the post is not under the State Government but under HIMUDA-an independent authority. In order to have better career prospects, petitioner aspires for consideration of his candidature against vacancies for ex-servicemen which have now arisen in the State departments. Referring to Chapter 18 of the Handbook on Personnel Matters Volume-I (Edition 2021), the Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non-Technical Services) Rules 1972 and the Ex-Servicemen Reservation of vacancies in the Himachal Pradesh Technical Services) Rules 1985, learned counsel contended that there is no provision under the applicable rules/instructions which prohibits consideration of petitioner’s candidature as an ex-serviceman against a civil post on account of his presently manning a civil post on contract basis through respond