Kashmir Chand Thakur vs Himachal Pradesh Khadi and Village Industry Board and Another

Rajiv Sharma, J.—Material facts necessary for the adjudication of this petition are that Respondent-Board advertised three posts of Assistants on 1.5.1980. Petitioner also applied for the same. He was selected against a general vacancy. He joined his duties on 29.12.1980. It appears from the record that he submitted representation for the grant of benefit of Demobilized Armed Forces Personal Reservation of Vacancies in Himachal Pradesh State Non Technical Services) Rules, 1972 (hereinafter referred to as �the Rules� for brevity sake). The Chief Executive of the Respondent-Board sought clarification regarding allowing of benefit of pay fixation to ex-serviceman on 20.2.1986 from the Government of Himachal Pradesh. The Government of Himachal Pradesh informed the Chief Executive Officer on 4.8.1986 that the instructions in the matters of service of ex-servicemen including fixation of pay etc. will be applicable in such cases, if the Board has adopted the State Government rules/instructions on the subject. The representation of the Petitioner was rejected on 10.12.1987. He also served a legal notice on the Respondent-Board. The same was replied by the Board on 5.9.1989. He preferred original application bearing No. 577/1989 for the redressal of his grievance before the erstwhile Himachal Pradesh Administrative Tribunal. The same was rejected by the learned Tribunal on 1.7.1995. He preferred a review petition, which was also dismissed by the Tribunal on 16.5.1996. Thereafter Petitioner preferred a civil suit in the Court of learned Sub Judge, Court No. 2, Mandi. The same was withdrawn.

Mr. B.K. Malhotra has strenuously argued that his client has served the Indian Army for a period of six years before joining his duties in the Respondent-Board and his client was entitled to be benefit of the Rules. He has relied upon Sections 13 and 36 of the Himachal Pradesh Khadi and Village Industries Board Act, 1966. He lastly contended that the mandamus be issued to the Respondent-Board to adopt the rules with further direction to grant benefits to his client.

I have heard the learned Counsel for the parties and have perused the record carefully.

It is admitted fact that Petitioner is an ex-serviceman. He served the Indian Army for a period of six years. The Respondent-Board had advertised vide circular dated 1.5.1980 three posts of Assistants. One post each was reserved for candidate belonging to SC/ST category. One post was meant for general category candidate. Petitioner was selected and appointed against the general vacancy and he joined his duties on 29.12.1980. Respondent-Board has been created under the Himachal Pradesh Khadi and Village Industries Board Act, 1966 (hereinafter referred to as �the Act� for brevity sake). Sub-section (4) of Section 13 provides that subject to rules as may be made by the Government of Himachal Pradesh, the Board may appoint such other officers and servants as it considers necessary for the efficient performance of its functions. Section 36 empowers the Board with the previous sanction of the Government of Himachal Pradesh to make regulations not inconsistent with this Act and the rules made thereunder, including for providing the terms and conditions of appointment and service and the scales of pay of officers and other employees of the Board other than Secretary including the payment of travelling and daily allowance in respect of journeys undertaken by such officers and employees for the proposes of the Act. Sub-section (3) of Section 36 provides that the Government of Himachal Pradesh may by notification in official gazette, rescind or modify any regulation made under this section and thereupon, the regulation shall cease to have effect or be modified accordingly.

Mr. B.K. Malhotra has drawn the attention of the Court to Annexure PA whereby 15% vacancies are reserved for ex-servicemen in technical posts/service. It is provided there in that these instructions shall apply to all Public Sector Undertakings/Corporations/Autonomous bodies. Case of Respondent Board, as per the reply, is that the Board has not adopted the instructions issued by the State Government. The Chief Executive Officer of the Board had also taken up the matter, as noticed above, with the State Government whether the benefits of ex-serviceman can be granted to the Petitioner or not. The State Government, vide Annexure R-6, informed the Board that the instructions will be applicable in those cases, if the Board has adopted the State Government rules/instructions on the subject.

Petitioner has been appointed in general category. It is for the Board to adopt or not to adopt the Rules/instructions issued by the State Government from time to time governing the benefits available to ex-servicemen. Petitioner had earlier filed original application bearing No. 577/1989. The same was dismissed on 1.6.1995. Review petition was also dismissed on 16.5.1996. Thereafter Petitioner had filed a civil suit, which was also withdrawn. A bare perusal of Section 13 of the Act makes it clear that the Board has the prerogative to make appointment of officers and servants as it considers necessary for efficient performance of its functions. The Respondent-Board can make regulations for governing service conditions of its employees. In these circumstances, the Court cannot issue any direction to the Respondent-Board to adopt the rules and instructions issued by the State Government for granting the benefits to the ex-servicemen. It is for the Board whether the rules/instructions are to be adopted or not. Reservation cannot be claimed as a matter of right.

Their Lordships of the Hon�ble Supreme Court in Nair Service Society Vs. Dr. T. Beermasthan and Others, have held that the State is not bound to make a reservation but it is empowered to do so in its own discretion. Their Lordships have held as under:

Several decisions have been cited before us by the Respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block.

Accordingly, in view of the discussion made hereinabove, and the definitive law laid down by their Lordships of the Hon�ble Supreme Court, there is no merit in the petition and the same is dismissed. No costs.