JUDGMENT :

Manoj Kumar Tiwari, J.

1. Petitioner was enrolled in Indian Army as Sepoy and he retired from service as Hawaldar on 31.01.2014. He is receiving service pension from Indian Army; thus, he is an ex-serviceman. After retirement from Indian Army, petitioner was appointed as Assistant Teacher in a Government Primary School on a post reserved for ex- servicemen, and presently, he is an employee of State Education Department.

2. Petitioner is challenging Clause 8 of Order dated 22.05.2020 issued by Additional Chief Secretary, Government of Uttarakhand, which is extracted below:-

^^HkwriowZ lSfudksa dks jkT;k/khu lsokvksa esa lsok;kstu ds lUnHkZ eas Hkkjr ljdkj ds O.M. No. 36034/27/84-Estt. (SCT) dated 02.05.1985, it was decided that once an ex-serviceman has joined the Government job on civil side after availing of the benefits given to him as an ex-serviceman for his re-employment, his ex-serviceman status for the purpose of re-employment in Government would cease.” dk izkfo/kku jkT;k/khu loskvksa eas ykxw fd;k x;k gSA vr,o jkT;k/khu lsok laoxksZ esa lsok;kstu gsrq Hkkjr ljdkj dh uhfr ds vuqlkj {kSfrt vkj{k.k dh x.kuk dh tk;sxhA**

3. Clause 8 of the Government Order dated 22.05.2020, impugned herein, refers to an Office Memorandum issued by Central Government on 02.05.1985. The said Office Memorandum provides that benefit of ex-servicemen status would be available only once and if an ex-serviceman gets civil employment due to his ex-servicemen status, then he shall not be entitled to such benefit again.

4. By order dated 22.05.2020, Government of Uttarakhand adopted the Central Government Policy, as contained in Office Memo dated 02.05.1985 for State services also, meaning thereby that once appointed in a State service, ex-servicemen cannot get the benefit available to ex-servicemen in the selection for some other post under the State.

5. Petitioner has challenged the condition mentioned in Clause 8 of Government Order dated 22.05.2020 on the ground that as a State Legislation is in place which provides reservation to ex-servicemen in State Services, therefore, benefit available to them under the said Legislation cannot be restricted or taken away by the State Government, by a Government Order.

6. It is not in dispute that State Legislature enacted The Uttar Pradesh Public Service (Reservation For Physically Handicapped, Dependents of Freedom Fighters and (Ex- Servicemen) Act, 1993 (from hereinafter referred to as “Act”), which was amended from time to time. The said Legislation is applicable in State of Uttarakhand also. The expression “Ex-Servicemen”, used in the aforesaid Legislation, was substituted by the expression “Purva Sainik” by Uttarakhand Act No. 3 of 2009 w.e.f. 16.03.2009.

7. Section 2(c) of the Act defines “Purva Sainik”, as follows:-

“2(c) Purva Sainik" means domicile of Uttarakhand who has served in Indian Army, Navy or Air Force as fighter or non-fighter and who has-

(1) retired from such service after earning their pension; or

(2) who has been released from such service on medical grounds as required for military service or has been released under such circumstances beyond his control and who has been given medical or other eligibility pension; or

(3) who has been released on account on resignation in establishment of such service and not on his own request; or

(4) who has been released from such service after completing a specific period but has not on his own request, or has not been terminated or removed from service because of misconduct or inefficiency and who has been paid gratuity, and includes following categories of Territorial Army personnel are also:-

(i) Those receiving pension for continuous organized service.

(ii) Medically unfit due to military service.

(iii)Those who received bravery award.”

8. Section 3(1)(i) provides reservation in State Services to the extent of 5 percent of vacancies to Purva Sainik, besides 2 percent reservation to dependants of Freedom Fighters. Section 3(1) of the Act is reproduce