Provision declared unconstitutional is void ab initio and non est; executive notifications cannot dilute judicial declaration without legislative action removing constitutional defect.

By way of instant petitioner, the petitioners have prayed for grant of following reliefs:-

“a. Call for the records;

b. Quash and set aside office order dated 13.12.2019 issued by the Director General, Prisons and Correctional Services (Annexure P- 12);

c. Direct the respondents to accord the benefit of past service rendered by the petitioners in the armed forces in computing their respective Seniority;

d. Direct the respondents not to promote anyone by superseding the petitioners and not to convene DPC for that purpose of promotion to the post of Head Warders (HW) and Assistant Superintendent Jail (ASJ);

e. Quash and set aside the tentative and final Seniority lists issued on 20.2.2018 and 7.3.2018 fixing the seniority of the Warders 29.12.2008 [Annexure(s) P-4 and P-5] respectively and/or any other Seniority list as being arbitrary, malafide and illegal and demote the persons who got benefited/promotion on the basis of the same;

f. Direct the respondent department to reframe and finalize the seniority list on the basis of notification dated 25.02.2019 by conferring the benefit of seniority upon the petitioners under Rule 5(1) of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non Technical Services) Rules, 1972 with all consequential benefits including arrears of salary, etc. alongwith interest.

g. Quash and set aside the promotion of private respondent No. 4 to the post of Head Warder;

h. Any other and further relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the petitioners in interest of justice and fair play.”

2. Petitioners are working as Honorary Head Warders in the department of Prisons and Correctional Services, Government of Himachal Pradesh. All the petitioners are ex- servicemen. They are seeking benefit of approved military service for seniority and on such basis claim promotion to the post of Head Warders.

3. Petitioners have built their claim on the foundation that though Rule 5(1) of the Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services), Rules 1972 (for short “Rules of 1972”) has been read down by this Court as unconstitutional while delivering judgment dated 29.12.2008 in CWP No. 488 of 2001 titled as V.K. Behal and Others vs. State of H.P. & Ors., yet the said judgment could be applied prospectively only and further the State Government vide notification dated 25.02.2019 had made the upshot of said judgment in V.K. Behal ineffective for the category of petitioners, who were appointed as Warders before 29.12.2008 i.e. the date on which judgment in V.K. Behal was pronounced.

4. The disputation of the petitioners, however, has not found favour with respondent No.2, who has rejected their representations vide impugned order Annexure P-12, dated 13.12.2019.

5. The case as set up by the petitioners is that they are senior to the private respondents and such seniority is being claimed on the basis of addition of their approved military service to the service rendered by the petitioners to the State Government. It is averred in the petition that the Department of Personnel, Government of Himachal Pradesh had issued communication dated 30.01.2018, whereby instructions were issued for reviewing the seniority, extended under the provisions of 1972 Rules in all cadres and to reframe the same accordingly showing position as on 29.12.2008. It is alleged that despite aforesaid inst