Jagdev Chand vs State Of H.P. & Another

Ajay Mohan Goel, J

By way of this petition, petitioner has prayed for the following relief:Â​

“i) That the respondents may kindly be directed to issue fresh seniority list.

ii) That the respondents may kindly be directed to fix seniority of the applicant as per Rule 5 (1) of the Demobilised Armed Forces Personal Rules,

1872â€​.

Brief facts necessary for the adjudication of the present petition are that the petitioner joined the Armed forces as Sepoy in the year 1980 and he

superannuated from the service upon completion of seventeen years and nine months, on 30.09.1998. Thereafter, he joined the service of the

respondentsÂdepartment as D.P.E.D, on 25.10.1999 and was posted as such at Government Senior Secondary School, Raipur Maidan, Una, District,

Una, H.P.. According to the petitioner, the appointment was so offered to him in his capacity as an ExÂservicemen. His grievance is that the benefit

of seniority after taking into consideration the active Military service put in by him, has not been granted to him by the respondentÂdepartment, in

terms of Rule 5 (1) of the Demobilised Armed Forces Personal Rules, 1872, though the benefit of pay fixation has been given to him. The stand of the

respondentsÂ​State is that the petitioner was not conferred the benefit as was being prayed by him as the matter was subÂ​ judice.

Rule 5 (1) of the Demobilised Armed Forces Personal Rules, 1872, to the extent it confers benefit of seniority to an ExÂservicemen of Military

service was assailed before this Court by way of CWP No.488 of 2001, titled as V.K. Bahl & others Versus State of H.P. & others, decided on

29.12.2008 and Hon’ble Division Bench of this Court in the said writ petition held that the benefit of fixation of seniority under Rule 5 (1) of the

Demobilised Armed Forces Personal Rules, 1872, could not be extended to those ExÂservicemen, who did not join the Army Service during

emergency. The judgment so passed by this Court has been affirmed by Hon’ble Supreme Court of India. Pursuant thereto, State Government has

also issued a Notification and Rule 5 (1) of the Demobilised Armed Forces Personal Rules, 1872 has been amended now to be inconsonance with the

judgment passed by this Court in V.K.Behl’s case (supra), as upheld by Hon’ble Supreme Court of India.

In this background, as the issue as to whether an ExÂserviceman is entitled for benefit of Military service to be counted for the purpose of

seniority, in case he has not joined during emergency is no more res intergra and the same stands decided against the petitioner because it is not the

case of the petitioner that he joined Indian Army during emergency.

In view of what has been discussed hereinabove, as this Court does not finds any merit in this petition, the same is dismissed. However, it is

reiterated that the petitioner is entitled to the benefit of fixation of pay by taking into consideration the active Military service rendered by him subject

to the riders of the date of passing of the educational qualification. Pending miscellaneous applications, if any, also stand disposed of.