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2007 Supreme(All) 3122
IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
RAJIV SHARMA, PRADEEP KANT, JJ.
Vinod Kumar Kharbanda – Appellant
Versus
State of U.P. and Others – Respondents
Writ Petition No. 828 of 2001
Decided On : 12-03-2007
For the Appellants : D.K. Upadhayaya, Raghvendra Singh.
For the Respondents: I.B. Singh, R. Singh.
The Court held that the Rules 3 (1) and 3 (b) of U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officer) Rules, 1973 and U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 are not discriminatory and violative of Articles 14 and 16 of the Constitution.
Headnote:
The Supreme Court held that the Petitioner was not entitled to claim seniority by counting his period of army service and the Rules aforesaid were not discriminatory nor violative of Articles 14 and 16 of the Constitution.
Fact of the Case:
The Petitioner, V.K. Kharbanda, was commissioned in the Army on 6th September, 1970 and was released on 3.12.1975. Thereafter, he was selected through U.P. Public Service Commission in the P.C.S. Cadre in pursuance of the examinations held in the year 1980. He was since allotted the seniority in the said cadre of 1981 batch, challenged the vires of Rule 3 (1) of U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officer) Rules, 1973 and also that of the Rule 3 (b) of U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 which has the similar provision with respect to definition of Demobilised Officer. The aforesaid Rule 3 (1) and 3 (b) as it existed is being reproduced below: Rule 3(1) - Ten per cent of the permanent vacancies in all Non-Technical (Class-II) Services to be filled substantively by direct recruitment through competitive examination in any year, shall be reserved for being filled in by the Disabled Defence Service Officers, Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned on or after November 1, 1962 but before January 10, 1968 and again on or after December 3, 1971 and released at any time thereafter. Provided that the reservation so made shall be utilized first for the appointment of Disabled Defence Service Officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other Emergency Commissioned Officers and Short Service Commissioned Officer. Rule 3(b) - "Demobilished Officer" means Disabled Defence Service Officer, Emergency Commissioned Officer and the Short Service Commissioned Officer, of the Armed Forces of the Union who was commissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter.
Finding of the Court:
The Court found that the Petitioner was not entitled to claim seniority by counting his period of army service and the Rules aforesaid were not discriminatory nor violative of Articles 14 and 16 of the Constitution.
Issues: 1. Whether the Rules 3 (1) and 3 (b) of U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officer) Rules, 1973 and U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 are discriminatory and violative of Articles 14 and 16 of the Constitution? 2. Whether the amendment in the rules namely, promulgation of (Second Amendment) Rules, 2000 was not as a result of contempt proceedings or in pursuance of the interim order passed in Writ Petition No. 805 (SB) of 1996 but was an independent and conscientious decision of the State Government and, therefore, the dismissal of the writ petition could not have been taken as liberty to the State to re-amend the rule by deleting the aforesaid rules, and substituting the original rules by enacting (Third Amendment) Rules, 2001? 3. Whether the rules having been amended and benefit of the same having been given to the Petitioner, the benefit of seniority and pay scale already given to the Petitioner could not have been taken away nor could stand withdrawn by the amendment of rules subsequently? 4. Whether the approval granted by the Governor on 4th February, 1997 was necessarily to be acted upon as the State Government was not having any authority to go beyond the said proposal and that any amendment in the rules with retrospective effect could not have been treated as a violation of judgment passed by the Apex Court in the case of Ram Janam Singh, particularly when the seniority of Ram Janam Singh was being protected?
Ratio Decidendi: 1. The Court held that the Rules 3 (1) and 3 (b) of U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officer) Rules, 1973 and U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 are not discriminatory and violative of Articles 14 and 16 of the Constitution. 2. The Court held that the amendment in the rules namely, promulgation of (Second Amendment) Rules, 2000 was as a result of contempt proceedings and in pursuance of the interim order passed in Writ Petition No. 805 (SB) of 1996. 3. The Court held that the rules having been amended and benefit of the same having been given to the Petitioner, the benefit of seniority and pay scale already given to the Petitioner could have been taken away by the amendment of rules subsequently. 4. The Court held that the approval granted by the Governor on 4th February, 1997 was not necessarily to be acted upon as the State Government was having the authority to go beyond the said proposal and that any amendment in the rules with retrospective effect could have been treated as a violation of judgment passed by the Apex Court in the case of Ram Janam Singh, particularly when the seniority of Ram Janam Singh was being protected.
Final Decision: The writ petitions were dismissed.
1. The Petitioner V.K. Kharbanda who was commissioned in the Army on 6th September, 1970 and was released on 3.12.1975 and thereafter was selected through U.P. Public Service Commission in the P.C.S. Cadre in pursuance of the examinations held in the year 1980, was since allotted the seniority in the said cadre of 1981 batch, challenged the vires of Rule 3 (1) of U.P. Non-Technical (Class-II) Service (Reservation of Vacancies for Demobilised Officer) Rules, 1973 and also that of the Rule 3 (b) of U.P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 which has the similar provision with respect to definition of Demobilised Officer. The aforesaid Rule 3 (1) and 3 (b) as it existed is being reproduced below:
Rule 3(1) - Ten per cent of the permanent vacancies in all Non-Technical (Class-II) Services to be filled substantively by direct recruitment through competitive examination in any year, shall be reserved for being filled in by the Disabled Defence Service Officers, Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned on or after November 1, 1962 but before January 10, 1968 and again on or after December 3, 1971 and released at any time thereafter.
Provided that the reservation so made shall be utilized first for the appointment of Disabled Defence Service Officers, and, if any such vacancies still remain unfilled, the same shall then be made available to other Emergency Commissioned Officers and Short Service Commissioned Officer.
Rule 3(b) - "Demobilished Officer" means Disabled Defence Service Officer, Emergency Commissioned Officer and the Short Service Commissioned Officer, of the Armed Forces of the Union who was commissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter.
2. The aforesaid Rules excluded from the definition of Defence Service of Demobilised Officer the person who joined the Army service during the gap period commencing from 11.1.1968 to 2.11.1971. The Petitioner having been commissioned as an officer in the Army on 6th September, 1970, thus was not entitled for counting the period of his Army Service while determining the seniority in the P.C.S. cadre.
3. Challenge made by the Petitioner on the ground of discrimination, i.e. giving of the benefit of Army Service to only those who were recruited during Indo-China War and thereafter denying the same benefit to the Petitioner who also fought Indo-Pak War and was commissioned only for a period of five years, was duly accepted by the High Court in a writ petition filed by the Petitioner bearing No. 7409 of 1986.
4. In this writ petition the Petitioner challenged the vires of Rule 3 (1), and 3 (b) of Rules, 1973 and 1980 alleging that they were discriminatory in nature and violative of Article 14 of the Constitution inasmuch as they provided for special seniority for Disabled Defence Service Officer and Short Service Commission of Armed Force, who were commissioned on or after 1st November, 1962 but before January 10, 1968 and again to those who were commissioned on or after 3rd December, 1971 but denied the same to persons who were commissioned after January 10, 1968 and before December 3, 1971 without there being any rational basis for the same. The Petitioner further pleaded that there was no justification to deny the same benefit to persons who had been commissioned to Armed Forces after January 10, 1968 and before December 3rd, 1971 because they also belong to the same class.
5. This writ petition was allowed by the High Court on 25.4.1990.
6. As a result of the aforesaid decision of the High Court the Petitioner was treated to be a Demobilised Officer and his seniority was fixed in the 1970 batch as against the pre-fixed seniority of 1981 batch and he was also given all consequential benefits.
7. SLP filed by the State Government before the Apex Court, wa
