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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 011060 OF 2017 (ARISING OUT OF SLP (C) NO. 8710 OF 2009)

R. K. BARWAL AND OTHERS .....APPELLANT(S)

VERSUS

THE  STATE  OF  HIMACHAL  PRADESH AND OTHERS

.....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 011061   OF 2017 (ARISING OUT OF SLP (C) NO. 14361 OF 2009)

CIVIL APPEAL NO. 011062  OF 2017 (ARISING OUT OF SLP (C) NO. 19750 OF 2011)

SPECIAL LEAVE PETITION (C) No.22416    OF  2017 (ARISING OUT OF SLP(C).......D. NO. 20104 of 2017)

A N D

CIVIL APPEAL NO. 657 OF 2016

J U D G M E N T

A.K. SIKRI, J.

Leave granted in Special Leave Petition (Civil) Nos. 8710 of 2009,

14361 of 2009 and 19750 of 2011.

2) In  all  these  appeals,  issue  relates  to  the  validity  of  ‘Demobilized

Armed Forces Personnel (Reservation of Vacancies in the Himachal

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Pradesh  State  Non-Technical  Services)  Rules,  1972  (hereinafter

referred  to  as  the  ‘1972  Rules’).   These  1972  Rules  provide  for

reservation  to  the  Released  Indian  Armed  Forces  Personnel  in

non-technical services in the State of Himachal Pradesh.  Provision is

also made in the 1972 Rules for conferring the benefit of counting

approved military service of such Released Armed Forces Personnel

for  the  purpose  of  fixation  of  their  seniority  and  pay  in  civil

employment.   It  is  the validity of  these Rules which is the subject

matter  in  most  of  these  appeals.   However,  for  the  sake  of

convenience and better  understanding,  we would take note of  the

events from Civil Appeal No.____ of 2017 @ SLP (C) No. 8710 of

2009.   

3) The  appellants  in  these  appeals  are  Released  Armed  Forces

Personnel.  They were initially taken in the Army where they served

for few years and after serving for certain years, they were released

from the Army.  Still young and far away from the age of retirement

that  is  prescribed  for  civilian  post,  they  applied  for  the  post  of

Assistant  District  Attorney  in  the  State  of  Himachal  Pradesh

(hereinafter referred to as the ‘State’) and were successful in getting

appointment as Assistant  District  Attorneys with the Department of

Prosecution of the State.  In terms of 1972 Rules, they were accorded

the  benefit  of  their  approved  military  service  for  the  purposes  of

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fixation  of  their  pay  and  seniority  as  Assistant  District  Attorneys.

Details of appointments of these appellants are as under:

Appellant’s Name

Date  of Joining Armed Forces  and rank

Date  of release from Armed forces  and rank

Date  of joining  civil employment (prosecution department)

Date  of acquiring essential qualification

Deemed  date  of appointment

R.K.  Barwal (Appellant No. 1)

24.04.1981 (As Airman)

10.09.1997 (As Sergeant)

28.12.2001 (Appointed as ADA/APP)

1991 (LLB) + 2 years experience

20.03.1989 (By  giving  12 years  antedated seniority)

D.S. Parmar (Appellant No. 2)

21.06.1986 (As  Havaldar Clerk)

21.07.2001 (As Naib-Subed ar)

19.10.2006 (Appointed as ADA/APP)

1991 (LLB) + 2 years experience

09.09.1991  (By giving  15  years antedated seniority)

S.S. Pathania (Appellant No. 3)

16.01.1980 (As Seaman)

28.02.1999 (As  Master At Arms)

18.11.2003 (Appointed as ADA/APP)

1997 (LLB) + 2 years experience

29.08.1986 (By  giving  17 years seniority)

N.S. Verma (Appellant No. 4)

08.01.1974 (As Seaman)

31.01.1989 (As  Petty Officer)

20.09.1996 (Appointed as ADA/APP)

1984 (LLB) + 2 years experience

20.03.1989 (By  giving  12 years seniority)

As is clear from the aforesaid chart, though these appellants joined

as Assistant District Attorneys with the State on later dates, they were

given the seniority from the back/earlier date with the application of 1972

Rules by counting their approved military service.  Their pay was also

fixed accordingly.   

4) At  this  stage,  we  may reproduce  the  relevant  provisions  of  1972

Rules.  Primarily, we are concerned with Rules 3(1) and 5 (1).  The

Preamble as well as the aforesaid Rules of the 1972 Rules read as

under:

“Preamble

No. 11-76/71-GA-A—In exercise of the powers conferred by

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the proviso to Article 309 of the Constitution of India, and all other  powers  enabling  him  in  this  behalf,  the  Governor, Himachal  Pradesh,  hereby  makes  the  following  Rules regulating  the  reservation  of  vacancies  in  Himachal  State, Non-Technical  Services,  for  the  Demobilised  Emergency Commission  Officers,  Short  Service  Regular  Commission Officers,  Junior  Commissioned Officers,  Non-Commissioned Officers and other Ranks of the Armed Forces of the Indian Union (hereinafter called the Released Indian Armed Forces Personnel), and the recruitment of such officers/personnel on such vacancies, namely:

3. Reservation of vacancies:

(1)Fifteen  percent  vacancies  in  respect  of  all  posts,  viz., Class  I,  II,  III  and  IV  to  be  filled  up  through  direct recruitment  shall  be  reserved  for  being  filled  up  by  the released Indian Armed Forces Personnel or ex-servicemen who joined service or were commissioned on or after the 1st day  of  November,  1962  and  are  released  any  time thereafter....”

5. Seniority and Pay:

(1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant rules,  shall  count towards fixation of pay and seniority in that service.  (This benefit  shall  however be allowed at the time of first civil employment  only  and  it  shall  not  be  admissible  in subsequent  appointments  of  ex-servicemen  who  are already  employed  under  State/Central  Govt.  against reserved posts).”

5) It may also be mentioned here that the State Government has framed

similar Rules conferring this kind of benefit on the Released Armed

Forces Personnel in Administrative Services as well.   These Rules

were framed in the year 1974 and are called the ‘Demobilised Armed

Forces  Personnel  (Reservation  of  Vacancies  in  the  Himachal

Pradesh Administrative Services) Rules, 1974 (hereinafter referred to

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as the ‘1974 Rules’).  Though, the 1974 Rules are not the subject

matter of these appeals, purpose for referring to these Rules is that

the validity of these Rules was also challenged and the matter had

come  up  to  this  Court.   To that  extent,  reference  to  these  Rules

becomes  relevant  and  the  outcome  of  the  proceedings  would  be

mentioned at the appropriate stage.

6) When  the  seniority  of  the  appellants  was  fixed  in  the  aforesaid

manner as given in the table above, the result was that they were

given seniority over and above some of those appointees who came

in  the  general  category  and  even  when  they  were  appointed  as

Assistant District Attorneys, prior in point of time.   These persons,

naturally, felt aggrieved by this favourable treatment accorded to the

appellants,  Respondent  Nos.  3  to  5  herein  as  well  as  two  other

Assistant  District  Attorneys,  thus,  approached  the  State

Administrative Tribunal by filing Original Application (OA), inter alia,

challenging  the  vires of  Rule  5(1)  of  1972  Rules  insofar  as  it

conferred benefit of counting of approved military service upon the

appellants towards fixation of their seniority.  They prayed for striking

down Rule 5(1) to the extent it confers seniority upon such Released

Armed Forces Personnel with a specific prayer that deemed dates of

appointment assigned to the appellants be declared as illegal.  They

also  prayed  for  issuance  of  directions  to  the  effect  that  these

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appellants be given seniority from the actual date of appointment as

Assistant  District  Attorneys  or  alternatively  from  the  dates  they

acquired eligibility for the post, viz., degree of Ll.B.  Here, we may

mention that these appellants had obtained LL.B. degree later on, but

they were law graduates as on the date when they applied for the

post of District  Attorney and were eligible to be considered for the

said post.  However, the grievance of Respondent Nos. 3-5 was that

seniority is given to them, by counting military service, from the dates

when they were not law graduates and thus not even eligible for the

post, for want of requisite qualifications, on that date.   

7) The State Administrative Tribunal, after hearing the parties, dismissed

the  OA filed  by  the  Respondent  Nos.  3-5  vide  judgement  dated

January 12, 2001, thereby upholding the validity of Rule 5(1) of 1972

Rules.

8) These  respondents  challenged  the  decision  of  the  State

Administrative Tribunal by filing writ petitions in the High Court.  The

High Court has, vide impugned judgment, partially struck down Rule

5(1) of the 1972 Rules.  Relying upon the decision of this Court in

Ram Janam Singh vs. State of Uttar Pradesh and another1, the

High  Court  has  held  that  such  a  benefit  of  counting  past  service

rendered  in  the  armed  forces  would  be  admissible  only  to  those

personnel who had joined the forces during the period of Emergency

1   (1994) 2 SCC 622

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and would be inadmissible in case of ex-servicemen who had joined

the armed forces at the time of peace.   

9) The result  of  the aforesaid judgment of  the High Court  is that  the

appellants stand deprived of the period of service rendered by them

in armed forces for the purposes of seniority as they had not joined

the said service during the period of  emergency.  Since, the High

Court has rested its decision by relying upon  Ram Janam Singh1

case  and  few other  cases  to  the  same  effect,  before  proceeding

further we would like to discuss these judgments and law laid down

therein.   

10) Ram  Janam  Singh1 was  a  case  wherein  the  judgment  of  the

Allahabad High Court was called into question.  It pertained to U.P.

Non-Technical  (Class-II)  Services  (Reservation  of  Vacancies  for

Demobilised Officers) Rules, 1973.  Under these Rules, benefit was

confined to those ex-servicemen who had joined service in the armed

forces during the period when the country was under  the state of

emergency.   One person who had joined service in the armed forces

during  the  period  when  the  Emergency  was  not  in  operation

challenged the non-grant of the benefit of Rules to him on the ground

that  there  was  no  reasonable  or  rational  basis  for  excluding  the

period  from January 10,  1969 when  the  Emergency was  lifted  till

December  03,  1971  when  the  same  was  re-imposed.   The  writ

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petition was allowed by the Allahabad High Court.  Thereafter, Ram

Janam  Singh  filed  an  appeal  before  the  Apex  Court  which  was

allowed.  The Apex Court held as follows:-

“10. From time to time controversy regarding inter se seniority is raised between persons recruited from, different sources to the same service.  In past, notional seniority used to be given to one group of officers, purporting to mitigate their hardship or to rectify any alleged wrong done to them in the process of recruitment  or  promotion.  Ultimately,  it  was  realised  that  if liberty is given to fix seniority of an officer or group of officers belonging to a particular category with reference to a notional date, that will lead to great uncertainty in public service.  The date of entry into a particular service was considered to be the most safe rule to follow while determining the inter se (sic) one officer or the other or between one group of officers and the other recruited from the different sources.  After referring to different judgments of this Court, a Constitution Bench in the  case  of  Direct  Recruitment  Class  II  Engineering Officer’s  Association v.  State  of  Maharashtra [(1980)  2 SCC  715]:  (AIR  1990  SC  1607),  came  to  the  same conclusion.   The same has  been reiterated  in  the  case of State of West Bengal v.  Aghore Nath Dev [(1993) 3 SCC 371].  It  is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service, which will be consistent with the requirement of Articles  14  and  16  of  the  Constitution.   Of  course,  if  the circumstances so require a group of persons can be treated a class separate from the rest, for any preferential or beneficial treatment  while  fixing  their  seniority.   But,  whether  such, group of  persons belong to a special  class for  any special treatment,  in  matters  of  seniority  has  to  be  decided  on objective consideration and on taking into  account  relevant factors which can stand the test of Articles 14 and 16 of the Constitution.   Normally,  such  classification  should  be  by statutory  rule  or  rules  framed  under  Article  209  of  the Constitution.  The far-reaching implication of such Rules need not be impressed, because they purport to affect the seniority of  persons,  who  are  already  in  service.   For  promotional posts,  generally  the  rule  regarding  merit  and  ability  or seniority-cum-merit is flawed in most of the services.  As such the seniority of an employee in the later case is material and relevant  to  further  his  career,  which  can  be  affected  by factors, which can be held to be reasonable and rational.

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11.  It appears that the framers of the Rules 1973 and 1980, while treating the persons, who had been commissioned on or after  November  1,  1962 but  before  January  10,  1968 and again on or after December 03, 1971, took into account the circumstances  and  the  background  in  which  such  persons were commissioned in Armed Forces, i.e.,  when the nation was faced with foreign aggressions and the cry of the time was  that  persons  should  join  Armed Forces  to  defend  the integrity and sovereignty of the nation.  It is well-known that many persons in such situation are not inclined to join Armed Forces and only those with feeling for the honour of the nation rise to such occasions.  In this background, if such persons have  been  treated  as  a  separate  class  for  extending  any benefit  in  the  matter  of  seniority,  none  can  make  any grievance and their classification can be upheld even in the light of Articles 14 and 16 of the Constitution.

12.  But, we fail to understand as to how persons, who joined after  the emergency was over, i.e.,  after  January 10,  1968 and  before  December  03,  1971,  when  another  emergency was imposed in view of the foreign aggression can be treated at par or on the same level.  It needs to be pointed out that such persons  were  in  look  out  of  a  career  and joined the Armed Forces of their own volition.  It can be presumed that they were prepared for the normal risk in the service of the Armed  Forces.   Those  who  joined  Armed  Forces  after November  1,  1962  or  December  3,  1971,  not  only  joined Armed forces but joined a war which was being fought by the nation.  If the benefits extended to such persons, who were commissioned  during  national  emergencies  are  extended even to the members of the Armed Forces who joined during normal  times,  members  of  the  Civil  services  can  make legitimate grievance that their seniority is being affected by persons recruited to the service after they had entered in the said  service  without  there  being  any  rational  basis  for  the same.

13. xxx xxx xxx

14. Can it be said that the persons who had joined army after the declaration of emergency due to foreign aggression and those who  joined  after  the  war  came  to  an  end  stand  on  the  same footing?  Those who joined Army after revocation of emergency joined army as a career.  It is well known that many persons, who joined army service during the foreign aggression could have opted for other career or service.  But the nation itself being under peril, impelled by the spirit  to serve the nation,  they opted for joining Army where then risk was writ large.  No one can dispute that such persons formed a class by themselves and by Rules aforesaid an

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attempt has been made to compensate those who returned from war if they compete in different service.  According to us, the plea that  even  persons,  who  joined  army  service  after  cessaion  of foreign  aggression  and  revocation  of  emergency,  have  to  be treated  like  persons,  who  have  joined  army  service  during emergency, due to foreign aggression is a futile plea and should not  have  been  accepted  by  the  High  Court.      It  need  not  be impressed that whenever any particular period spent in any other service by a person is added to the service to which such person joins later, it is bound to affect the seniority of person who have already  entered  in  the  service.  As  such  any  period  of  earlier service should be taken into account for determination of seniority in the later service only for some very compelling reasons, which stand the test of reasonableness and on examination can be held to be free from arbitrariness.”                                 

(Emphasis supplied)       

11) This  dictum  was  reiterated  in  Chittranjan  Singh  Chima  and

Another v. State of Punjab and Others2 wherein this Court has held

that  the  person  appointed  to  defence  services  under  the  normal

recruitment,  before  the  proclamation  of  (External  Emergency  on

26.10.1962, were not covered under the expression “military service”

as  defined  in  the  Punjab  Government  National  Emergency

(Concession) Rules, 1965.  Hence, the appellants who were enrolled

in Indian Air Force on December 07, 1957 and September 03, 1959

respectively and were released in 1974 on completion of 15 years of

service, held not entitled to the benefit of this service for seniority and

other consequential benefits because they were not appointed during

emergency but in the regular process.

12) Another case taken note of by the High Court is  Narendra Nath

Pandey and Other vs. State of U.P. and others3. In this case, Rule

2   (1997) 11 SCC 447 3   AIR (1988) SC 1648

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6  of  the  aforesaid  U.P. Rules  of  1973  was  being  dealt  with,  the

relevant portion whereof is as under:  

“R. 6 Seniority and pay—

(1)Seniority  and  pay  of  candidates  appointed  against  the vacancies reserved under sub-rule (1) of Rule 3, shall be determined  on  the  assumption  that  they  entered  the service  concerned  at  their  second  opportunity,  of competing for recruitment, and they shall be assigned the same year  of  allotment  as  successful  candidates of  the relevant competitive examination.”     

The issue before the Court  was as to  whether  such ex-service

personnel  could be given the seniority even when they failed in  first

attempt in securing civil employment and further whether the benefit of

service rendered in armed forces could be given even if  there was a

significant time lag between release of such personnel by the army and

securing  the  civil  employment.  Interpreting  the  aforesaid  Rule,  these

questions were answered in the following manner:

“13.  It  is  true that Rule 6 does not provide for  the period between the demobilisation and recruitment of a war service candidate in the civil service.  Nor does it forbid consideration of such period.  It cannot, however, be denied that after the discharge from war service, there will be some lapse of time for  the  recruitment  of  a  candidate  in  the  Provincial  Civil Service.  There is a question of competing in the examination. Rule  6  does  not  provide  for  any  gap  to  be  taken  into consideration, yet it is apparent that some reasonable period has to be allowed to a candidate so as to enable him to avail himself  of  the  opportunity  of  appearing  at  the  competitive examination for his recruitment in the Provincial Civil Service. It cannot be gain said that to compete in the examination, a candidate  has  to  make  preparation  for  that  competitive examinations  are  generally  difficult  and,  in  our  opinion,  at least two years’ time should be allowed to a candidate, after his  discharge,  for  his  preparation  for  the  competitive examination and that will arise in the next year, that is, in the

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third year of his discharge from the armed forces.  In other words, he should be allowed three years for competing in the relevant examination for recruitment in the civil service.

14. Even  after  he  becomes  successful,  he  is  not recruited  immediately.   There  is  question  of  availability  of vacancies and posting.  It is common knowledge that some time is taken for posting.  On a proper construction of Rule 6, the  period  spent  by  a  candidate  for  competition  in  the examination which, in our opinion, will not be more than three years,  and  the  period  of  time  taken  for  his  recruitment  or posting will also be taken into consideration for the purpose of computing the seniority of a war service candidate. Thus, if a candidate is discharged in the year 1968, he should be given three  years’  time  to  avail  himself  of  the  opportunity  of competing in the examination.  Suppose, he is successful in the examination in 1971 and posted in 1973.  In view of Rule 6, he would be deemed to have entered service at the second opportunity of competing for recruitment and the entire period from  the  date  of  assumed  entry  in  the  service  up  to  his recruitment  in  1973  shall  be  taken  into  account  for  the purpose  of  computing  seniority  and  pay.   If,  however,  a candidate  does  not  avail  himself  of  the  opportunity  within three years of  his  discharge from war  service or  takes the examination  but  not  avail  himself  of  the  opportunity  within three years of  his  discharge from war  service or  takes the examination but becomes unsuccessful, the period between his discharge and subsequent recruitment will  not be taken into account for the purpose of computing the seniority.  Rule 6 should be given a reasonable interpretation.  We do not find any reason to interpret Rule 6 in a way which will be doing injustice to the appellants who have been recruited under the Service  Rules  after  competing  successfully  in  the examination.

15.  We agree with the High Court that the 1973 Rules as also the 1980 Rules are quite legal and valid.  We are, however, of the view that under Rule 6 of the 1973 Rules or Rule 5 of the 1980 Rules only a reasonable period, namely, the period of three years, required for taking the examination and the time taken for recruitment or posting, as discussed above, along with the period of  war service,  but  no other period, will  be taken  into  consideration  for  the  purpose  of  computing  the seniority  and pay.  The impugned seniority list  prepared in 1976 and also that prepared subsequently in the year 1980 cannot be sustained, as they have been prepared by taking into  consideration  the  entire  period  between  the  discharge and the recruitment without any reservation for computing the

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seniority. (Emphasis Supplied)”

13) Dicta  laid  down  in  the  aforesaid  judgments  of  this  Court  are

apparent  and  explicit.   The  Court  has  held  that  there  exists  an

intelligible criterion for providing quota to ex-servicemen.  The object

is  to  rehabilitate  the  ex-servicemen  which  can  be  achieved  by

providing reservations to them.  Therefore, insofar as provision made

in the Rules reserving a particular quota, within reasonable limits is

concerned that  is  permitted and does not  offend the provisions of

Article 14 of the Constitution.  There is an intelligible differentia having

nexus with the objective sought to be achieved.  Likewise, provision

in the Rules for protecting the pay is also held to be permissible.   

14) The bone of contention, however, is in respect of grant of benefit of

seniority  to  these  ex-servicemen  on  joining  civilian  service,  by

counting the service rendered in the armed forces for the purpose of

seniority in the department  which these ex-servicemen join.   Here

there is a conflict of interest that arises between those civilians who

join a particular service earlier than ex-servicemen but are rendered

juniors  to  the  ex-servicemen  joining  later  for  the  reason  that

ex-servicemen  are  benefited  with  their  past  service  in  the  armed

forces.   As  far  as  this  aspect  is  concerned,  the  judgments  noted

above have held that provision in the Rules giving benefit of service

in  armed  forces  to  those  ex-servicemen  who  joined  during

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Emergency, are perfectly justified.  It is based on the rationale that

sacrifice of such personnel in armed forces who joined the service in

war times is much more than those persons who joined the armed

forces during peace period.  Reasoning proceeds on the basis that

when a state of Emergency is declared and the nation is at war or

facing the threat of aggression some young persons out of a feeling

of patriotism join the armed forces knowing fully well  that they are

putting their  lives at stake.  They give up their  chance to join civil

service and live a comfortable life in the main cities of the country.

Drawing this distinction, this Court has granted the benefit of service

rendered by these ex-servicemen while in armed forces, is held to be

valid  when  they  were  recruited  during  Emergency.   However,  the

Court has held that such a benefit should not be available to those

who join the armed forces at a period when the country was not in

conflict with any other country/enemy country.  The denial of benefit

to such persons is on the premise that  these persons stand on a

totally different footing from those who join service during emergency

period.  These persons weigh all the pros and cons and after taking

into consideration all factors come to the conclusion that they have a

good future in the armed forces.  They join the armed forces as a

profession like any other.

15) On this  premise,  the Court  has held  that  the two categories of

15

ex-servicemen formed two  separate  classes  and  are  not  equal  to

each other.  Thus, latter category is not entitled to counting of their

service rendered in armed forces for the purpose of their seniority on

joining  the  civilian  post.   Following  this  dicta  laid  down  in  the

aforesaid  judgments,  the  High  Court  has  read  down  the  rule

in-question by limiting the benefit  of  seniority only to  that  class of

ex-servicemen  which  joined  armed  forces  during  the  period  of

Emergency.  

16) This  position  is  summed up by the High Court  in  the  following

manner:

“We  are  of  the  view  that  such  benefit  should  have  been limited  to  those  persons  who  joined  during  the  period  of emergency  only.   Otherwise  the  Rules  would  become unconstitutional.   The  Apex  Court  in  a  number  of  cases including those quoted above has clearly held that efficiency should not suffer on account of reservation.  Reservation can be held to be reasonable as long as efficiency does not suffer. It is also well settled that the seniority of an officer in service is  determined  with  reference  to  the  date  of  entry  in  the service.   This  is  consistent  with  Articles  14  &  16  of  the Constitution.   Exceptions  can  be  made  only  in  special circumstances.  However, who are entitled to such benefits has to be decided objectively.  Therefore,  the rules  in this behalf must be framed by taking into consideration the effect which such reservation will have on efficiency of the service and the manner in which it will affect the seniority of persons who are already in service.  

We may approach this issue from another angle.  The Apex Court  both  in  Ram  Janam  Singh’s  case as  well  as  in Chittranjan  Singh  Chima’s case  clearly  held  that  the ex-serviceman who joined the armed forces during normalcy could  not  be  equated  with  ex-servicemen  who  joined  the armed forces during emergency.  The Rule under challenge in fact equates these two.  Therefore, two unequals have been treated as equals.  What may be valid or reasonable for the

16

ex-servicemen  who  stand  on  higher  pedestal,  i.e., ex-servicemen  who  joined  during  emergency  may  not  be necessarily be valid or legal for those who stand on a lower footing.   The  civil  servants  who  are  placed  lower  to  such ex-servicemen  can  genuinely  complaint  that  they  are  the victims  of  arbitrary  discrimination  as  clearly  pointed  out  in Ram Janam Singh’s case.  Efficiency of the service is also bound to suffer if all ex-servicemen are given this benefit.”  

  17) It  becomes  apparent  from  the  aforesaid  discussion  that  while

deciding  against  the  appellants,  the  High  Court  has  followed  the

judgments of this Court and the ratio has also been applied correctly.

Therefore,  the judgment  of  the High Court  cannot be faulted with.

Though, Mr. Paramjeet Singh Patwalia, learned senior counsel for the

appellant had tried to distinguish the decision of this Court in Ram

Janam  Singh  and  Chittranjan  Singh  Chima  cases,  with  the

submission that the Rules in those two cases were different, however,

it is difficult to accept this contention of the appellant having regard to

the clear dicta and the ratio behind the said judgments which has

already been discussed above.  

18) Faced with this, another fervent plea made by the learned senior

counsel is to the effect that going by the prevailing conditions in the

country and the manner in which armed forces personnel have to

perform  their  duties,  there  is  hardly  any  difference  between  the

emergency and the peace time. It was submitted that post 1971 war,

Pakistan  has  waged  proxy  war  against  India  which  continues

unabated.  Life risk and casualties of soldiers during peace time are

17

more  as  compared  to  the  casualties  in  the  war.   Insurgency  like

conditions existed earlier  in Punjab and now continues in Kashmir

Valley besides in North Eastern States.  Almost every day there are

casualties of the personnel deployed in such affected areas.  Besides

fighting  insurgency  conditions  and  terrorism,  soldiers  have  to

participate  in  various  operations  like  Operation  Vijay  (Kargil

Operation),   Megadoot,  Pawan,  Prakaram,  Rakshak,  Bombay

Operation etc.  which take place during non-emergency period and

risk to life and fatalities of soldiers during such operations is also as

high as during the wars.

19) In  a  nutshell,  the  submission  is  that  the  distinction  which  was

drawn by this Court between those persons who joined armed forces

in  peace  time  and  those  who  joined  during  emergency  is  totally

blurred.  Emphasis of Mr. Patwalia was that even during the so-called

peace  time,  armed  forces  are  faced  with  warlike  situations  and,

therefore,  they  should  now  be  treated  at  par  with  those

ex-servicemen who joined the military service during the period of

emergency.  On that basis, it was submitted that the cases decided

by this Court and referred to above need reconsideration.

20) Insofar  as  official  respondents,  State  of  Himachal  Pradesh  and

Secretary  Personnel  to  the  Government  of  Himachal  Pradesh

(Respondent Nos. 1 and 2) are concerned, they have supported the

18

arguments of the appellants.  In fact, even State has challenged the

impugned judgment and its appeal is numbered as Civil Appeal No.

________ of 2017 (@ SLP(Civil) No. 14361 of 2009).  These appeals

were primarily contested by the private respondents who are civilians

and were appointed to these posts on various dates and had filed the

writ petition in the High Court which has been allowed by the High

Court.  In addition, an intervention application is filed by some other

persons belonging to this very class and they have also supported

the impugned judgment.

21) Insofar as private respondents, namely, Respondent nos. 4 and 5

as  well  as  interveners  are  concerned,  submission  of  the  learned

counsel appearing on their behalf was that the judgment of the High

Court  was  in  accord  with  the  law  laid  down  by  this  Court  and,

therefore, there was no reason to interfere with the same.  It  was

submitted that the background in which 1972 Rules were framed had

to be kept in mind. In this behalf, their submission was that China had

attacked  the  Nation  on  October  20,  1962  and  proclamation  of

Emergency was made on October 26, 1962.  It was found that there

was acute shortage of  young personnel  in  the Armed Forces who

could defend the country and accordingly a number of concessions

were announced by the Central and the State Governments for those

persons  who  joined  these  forces  including  reservation  of  posts,

19

counting  of  the  period  served  in  the  military  for  seniority  and

protection of pay and pension in the civil posts.

22) He  further  stated  that  after  Indo-China  and  Indo-Pak  wars,  a

review of the manpower required by the armed forces was made in

the  year  1968  and  all  those  persons  who  were  in  excess  were

“Demobilised” in a phased manner. To rehabilitate the demobilised

person  Central  and  the  State  Governments  had  framed  Rules.

Demobilisation  was  onetime  operation  and  demobilisation  was

stopped by 1975.  It was pointed out that the first such Rules were

framed by Punjab as Punjab National Emergency Concession Rules,

1965  and  notified  on  July  20,  1965  as  has  been  mentioned  in

Ex-Capt.  K.C.  Arora  and  Another  Vs. State  of  Haryana  and

Others4.

23) These  respondents,  thus,  supported  the  rationale  by  drawing

distinction between the two classes of ex-servicemen, namely, those

who had joined armed forces during Emergency and those who had

not  and it  is  only the first  category which could be entitled to the

benefit of past service.  It was also submitted that if such a benefit of

past  service  is  given,  many  such  ex-servicemen  would  become

entitled to seniority from a date when they were not even possessing

a degree in law or having any experience or practice as a lawyer

which is required for the post.  It  was also submitted that some of

4  (1984) 3 SCC 281

20

these ex-servicemen would  be getting seniority from the dates on

which they were not even enrolled as advocates with the Bar Council

and  had  not  completed  experience  of  three  years’  practice  as

advocates which could not be countenanced.  It was, thus, submitted

that  if  the  benefit  under  the  1972  Rules  is  extended  to  all

ex-servicemen, it would, undoubtedly, affect the efficiency of service.

Furthermore, the same would also cause heart burn and affect the

morale  of  the  competent   persons  who  joined  the  services  much

earlier  and  are  still  placed  much  lower  in  seniority  to  the

ex-servicemen, who invariably get seniority, from the date when they

did not even possess the bare minimum eligibility for appointment. It

was  submitted  that  Rule  for  reservation  of  vacancies  may not  be

stretched  so  far  as  to  include  seniority,  pay-scale  (Rule  5.1)  and

provision of vacancies to the dependents and continued reservation

of vacancies (Rule 3.1) of the Demobilised Rules.  Will these Rules

made under Article 309 of the Constitution stand the test of Article 16

of the Constitution to which Article 309 is subject to?      

24) It was pointed out that a number of ex-servicemen had superseded

these respondents and interveners which had a cascading effect on

the service career of the direct recruits.  It was specifically pointed out

that  Sh.  Purander  Sharma  was  the  topper  of  the  batch  and  was

appointed as Assistant District Attorney on July 20, 1990 along with

21

the  other  direct  recruits,  intervener  No.  2  Sh.  Ravi  Kant  Kaushal

while,  the  ex-servicemen,  Sh.  Dharam  Pal  Sharda,  Sh.  Sansar

Chand, Sh. Narain Singh Verma, Sh. Gian Chand Rana and Sh. R.K.

Barwal  were  appointed  on  much  later  dates.   However,  these

ex-servicemen were given the benefit of Rule 5(1) of the 1972 Rules

and were assigned a deemed date of appointment on a much earlier

date.  Consequently, Sh. Purander Sharma (Respondent No. 5) and

other similar situate persons, were placed much lower in the seniority

to these ex-servicemen, who got seniority from the date when they

did not even possess the bare minimum eligibility for appointment.  It

was emphasized that Sh. Purander Sharma got promoted to the post

of Deputy District Attorney in the year 2005 after serving as Assistant

District Attorney for a period of more than 15 years against minimum

requirement of seven years, while, Sh. R.P. Sharma, Sh. Dharam Pal

Sharda,  Sh.  Sansar  Chand,  Sh.  Narain  Singh  Verma,  Sh.  Gian

Chand Rana and Sh. R.K. Barwal (Ex-servicemen) were promoted

thrice  within  a  period  of  15  years  from  the  date  of  their  actual

appointments, i.e., on July 10, 1998, June 01, 1994, June 14, 1993,

September  20,  1996,  May  26,  1999  and  December  28,  2001

respectively.

25) On that basis, it was argued that there was no reason to take a

different view or refer the matter to a larger Bench for consideration.

22

26) After giving our due consideration to the respective submissions

and minutely going through the judgments of  this Court  discussed

above, which have been relied upon by the High Court, we do not see

any reason to deviate therefrom nor do we find any justification in

referring the issue to the larger Bench.

27) No doubt, Mr. Patwalia is right in pointing out that those who are

joining military service even in ‘peace times’ are faced with difficult

situations of proxy war and have also to deal with insurgency and

terrorism.  It is also a matter of common knowledge that these military

personnel are risking their life while dealing with the aforesaid difficult

situations and, in fact, the casualties and fatalities of the soldiers are

on  the  rise.   When  they  leave  the  military  service,  as  an

ex-serviceman, they not only get the benefit  of appointment to the

civilian  post  against  the  quota  earmarked for  them,  they are  also

getting the benefit  of counting of military service when their pay is

fixed on their appointment to the civilian post.  However, benefit of

counting of military service rendered by these ex-servicemen for the

purpose of seniority cannot be extended to them.  Such a benefit is

restricted by this Court only to those who joined armed forces during

emergency due to  foreign aggression.   This  special  category was

carved in the judgments referred to above.  This Court, while doing

so, categorically and repeatedly held that the call of service to nation

23

during war period is on a totally different footing than joining army

when the country is not  facing any such foreign aggression.   The

Court  pointed out  that  persons who were commissioned in  armed

forces when the nation was faced with foreign aggression and the cry

of the time was that persons should join armed forces to defend the

integrity  and  sovereignty of  the nation,  it  was  stressed that  many

persons in such situations are not inclined to join the armed forces

and only those with the feeling for the honour of the nation rise to

such occasions.  For this reason, such persons joining armed forces

at that time, sacrificing their career, had to be treated as a separate

class by extending them the benefit in the matter of seniority as well.

However, those who joined the armed forces otherwise, they do so in

look out of a career and joined such services of their own volition.

They are prepared for the normal risk in service of the armed forces.

Therefore,  benefit  of  service  rendered  in  armed forces  cannot  be

extended  to  such  a  class  for  the  purposes  of  seniority.   The

circumstances pointed out by Mr. Patwalia are nothing but those risks

which are very well known and prevalent.  Fact remains that these

persons joined the service to make their  career  and on their  own

volition,  exercising  it  as  a  matter  of  choice.   Their  cases  are,

therefore, on a different footing altogether.  After all, if the benefit of

armed  force  services  rendered  is  extended  to  each  and  every

24

ex-serviceman  for  the  purpose  of  seniority,  it  may  result  in  far

reaching  implications.   Examples  in  this  behalf  are  given  by  the

private respondents, as noted above.  This Court cannot shy away

from the normal rule of fixing the seniority, as enunciated in the cases

of Direct Recruitment Class II Engineering Officer’s Association

as well as Aghore Nath Dev, i.e. the seniority of an officer in service

is determined with reference to the date of his entry in the service,

which is consistent with the requirement of Articles 14 and 16 of the

Constitution.  There have to be very weighty reasons for departure

from this rule.  Otherwise, it may disturb the equilibrium by making

many direct recruits junior to such ex-servicemen even when such

direct recruits joined the services in civil posts much earlier than the

ex-servicemen.  Thus, an exceptional category carved out for giving

such a benefit only to those who were commissioned in armed forces

during  war  time  cannot  be  extended  to  each  and  every

ex-serviceman merely because he has served in armed forces.

28) We,  therefore,  are  of  the  considered  opinion  that  there  is  no

reason to deviate from the principle laid down by this Court in Ram

Janam Singh and Chittranjan Singh Chima.  This contention of the

appellant is, thus, rejected.

29) Mr. Patwalia also submitted that this Court in its decision in the

case of  State of H.P. vs. P.D. Attri5  has also held that each State

5   (1999) 3 SCC 217

25

has its own individualistic way of governance under the Constitution.

One  State  is  not  bound  to  follow  the  Rules  and  Regulations

applicable to the employees of  other  State and it  is  not  bound to

follow every change brought in the Rules and Regulations in other

State  even  if  the  same were  adopted  initially.  In  this  hue,  it  was

submitted  that  presently  the  percentage  of  reservation  of

ex-servicemen under the Rules of 1972 is to the extent of 15% in

respect of all posts viz. class I, II, III and IV (Rule 3(1) of 1972 Rules).

The  1972  Rules  apply  to  each  and  every  department  of  State

Government  except  the  administrative  services,  judiciary  and

technical  services  for  which  there  are  separate  rules.   There  are

approximately more than 2 lac employees in the State of H.P. who

are governed by the 1972 Rules.  Thus, approximately there would

be 30,000 to 35,000 ex-servicemen who have been conferred the

benefit of seniority under the Rules of 1972.

This  contention,  however,  needs  to  be  rejected  in  view  of  the

detailed discussion carried out hereinabove.

30) In the impugned judgement, the High Court has pointed out one

more pertinent aspect.  It is mentioned that the benefit of past service

rendered in armed forces is even given to those persons who did not

even fulfil  the minimum educational criteria for the service which is

otherwise mandatory.  Discussion in this behalf is as follows:

26

“In our considered opinion, the State Government did not at all  take into consideration these aspects of the matter.  No material  has been placed on record to show whether such objective criteria were followed while framing the Rules.  We also find that in the State of Himachal Pradesh benefit of past service rendered in the armed forces is even given to those persons  who  did  not  even  fulfil  the  minimum  educational criteria for the service which is otherwise mandatory.  Take for example  the  present  case.   According  to  the  R&P  Rules relating to District Attorneys, the minimum eligibility criteria is a  degree  in  law with  three  years  experience  as  a  lawyer. Ex-servicemen who were not  even possessing a degree in law nor having any experience of practice are being given the benefit of the past service rendered in the Army.  Immediately on joining the service they become senior  to  persons who have  come  from  the  general  category  and  joined  service much earlier to them.  This is bound to affect the efficiency in the service.  This will also cause heart burning.  Competent persons  who  joined  from  the  general  category  are  placed lower in seniority to those who may have become eligible to even join service much after they joined.

xxx xxx xxx

A  person  who  does  not  have  the  minimum  educational qualification would not be even eligible to apply for the post. When the person is not even eligible to apply for the post it does  not  stand  to  reason  that  he  can  be  given  benefit  of service rendered in the Army in such a post.  The purpose of the Rules is to rehabilitate the army man.  The rehabilitation is done  by  providing  them  reservation  but  when  it  comes  to giving  them  the  benefit  of  seniority  the  Rule  becomes unconstitutional  if  the  candidate  being  given  the  benefit  is ineligible to hold the post.  Even the State is not clear as to from which date this benefit is to be given. In some cases like in  the  case  of  respondent  No.  4  and  Sh.  G.C.  Rana  the benefit  of  past  service  has  been given only  from the  date these persons acquired the minimum qualifications but in the cases  of  some other  persons  this  benefit  has  been  given regardless of this date.  This practice is also discriminatory and violative of Article 14 of the Constitution of India.”     

31) Thus, grant of benefit of military service even in respect of those

who join the armed forces during the emergency, is to be given only

from  the  date  when  they  attained  the  minimum  eligibility  criteria

27

prescribed  in  the  Rules  for  the  post  to  which  such  persons  are

appointed.

32) Since we have already held that insofar as these appellants are

concerned, they are not entitled to get the period served in armed

forces  counted  for  the  purpose  of  seniority  as  Assistant  District

Attorney,  this  question  does  not  arise  for  consideration  in  these

cases.

33) As a result, Civil Appeal No. 011060 of 2017 arising out of SLP(C)

8710 of 2009, Civil Appeal No. 011061 of 2017 arising out of SLP(C)

14361 of 2009 and Civil  Appeal No. 011062 of 2017 arising out of

SLP(C) 19750 of 2017 are dismissed.

34) Special  Leave  Petition  (Civil)  No.  22416  2017  (arising  out  of

SLP(C) ….D. No. 20104 of 2017) is also filed by ex-servicemen who

have joined Department of Prosecution of the State.  They are five in

number.  However, they have challenged earlier judgment of the High

Court,  pronounced in Civil  Writ No. 620 of 2003 on November 16,

2007.  We do not  see any reason to entertain this  Special  Leave

Petition as it  is  filed after  a period of  10 years.   In any case, the

petitioners herein have raised the same issues which are raised by

the appellants in the aforesaid appeals and those appeals have been

dismissed finding no merit  therein.   Accordingly, this  special  leave

petition is also dismissed both on limitation as well as on merits.

28

Civil Appeal No. 657 of 2016

35) Insofar as Civil Appeal No. 657 of 2016 is concerned, it is filed by

State  of  Himachal  Pradesh  against  the  respondent  who  was  an

ex-serviceman appointed as Peon against unreserved post with effect

from January 01, 1975.  The issue in that case was different though

he was not given the benefit of Army service towards seniority, it was

primarily for  the officer  that  the respondent was appointed against

unreserved post and on that basis the Government took the view that

he  could  not  be  given  the  benefit  available  to  the  ex-servicemen

under the 1972 Rules.  Respondent approached the Administrative

Tribunal, Himachal Pradesh and his O.A. was allowed. Against the

judgment  of  the  Tribunal,  State  filed  writ  petition  which  has  been

dismissed  by  the  High  Court  vide  judgment  dated  May  22,  2014

against  which  the  aforesaid  appeal  is  preferred  by  the  State.   A

perusal  of  the  judgment  of  the  High  Court  would  reveal  that  the

administrative  instructions  issued by the  Government  that  when a

released Army Personnel  has been appointed against  the general

un-reserved  vacancy  in  the  first  instance,  he  should  be  given  an

option at the time of first appointment to accept a reserved vacancy,

even if  it  occurs subsequent  to  his  appointment.   The High Court

noted that such an option was never provided to the respondent.  The

29

vacancy became available after  the appointment  of  respondent  as

Peon on  January  01,  1975 and since  the  State  Government  was

required  to  give  option  to  the  respondent  at  the  time  of  initial

appointment  to  be  considered  against  the  post  reserved  for

ex-servicemen, which was not done and, therefore, respondent could

not be made to suffer due to reminiscence on the part of the State

Government. In the aforesaid factual background, we do not find any

error in the judgment of the High Court and, therefore, dismiss, this

appeal.

     .............................................J.

(A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; AUGUST 25, 2017

30

ITEM NO.1501               COURT NO.6               SECTION XIV (FOR JUDGMENT)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C)  No(s).  8710/2009 (Arising out of impugned final judgment and order dated  29-12-2008 in CWP No. 488/2001 passed by the High Court Of Himachal Pradesh At Shimla) R.K.BARWAL. & ORS.                                Petitioner(s)                                 VERSUS THE STATE OF HIMACHAL PRADESH & ORS.               Respondent(s) ([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])

WITH C.A. No. 657/2016 (XIV) SLP(C) No. 14361/2009 (XIV) SLP(C) No. 19750/2011 (XIV) SLP(C)... Diary No. 20104/2017. Date : 25-08-2017 These matters were called on for pronouncement of judgment today. CORAM :  HON'BLE MR. JUSTICE A.K. SIKRI          HON'BLE MR. JUSTICE ASHOK BHUSHAN

For Petitioner(s) Mr. Paramjeet Singh, Patwalia, Sr. Adv.  Mr. Vikas Mahajan, Adv.  Mr. Vinod Sharma, Adv.  Mr.Vishal Mahajan, Adv.  Mr. S.S. Rai, Adv.  

                  Mr. Varinder Kumar Sharma, AOR                    Ms. Pragati Neekhra, AOR                    Mr. Bhaskar Y. Kulkarni, AOR                    Mr. Rajeev Sharma, AOR                    Mr. Naresh K. Sharma, AOR                    Mr. Sahil Bhalaik, AOR                     For Respondent(s)  Mr. Rajeev Kumar Bansal, Adv.

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Mr. Brahma Prakash, Adv.  Mr. Akshay K. Ghai, Adv.   Mr. Balraj Dewan, AOR

                   Mr. Naresh K. Sharma, AOR

                   Mr. Himinder Lal, AOR                      

Mr. Aditya Dhawan, Adv.  Ms. Kiran Dhawan, Adv.  

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench  comprising  His  Lordship  and  Hon'ble  Mr.  Justice  Ashok Bhushan.  

Leave granted in Special Leave Petition (C) Nos. 8710 of 2009, 14361 of 2009 and 19750 of 2011.

The appeals  and Special Leave Petition (Civil) No. ____ 2017 (arising out of SLP(C) ….D. No. 20104 of 2017)  are dismissed in terms of the signed reportable judgment.  

Pending  application(s),  if  any,  stands  disposed  of accordingly.

(Ashwani Thakur)       (MADHU NARULA)   COURT MASTER        COURT MASTER

(Signed reportable judgment is placed on the file)