2025:HHC:30090 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.7342 of 2024 Decided on: 03.09.2025 _________________________________________________________________ Tikkam Ram ....Petitioner Versus State of H.P. & Anr. …Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting? _________________________________________________________________ For the petitioners: Mr. Vinod K Thakur, Advocate. For the respondents: Mr. Rajat Chaudhary, Assistant Advocate General. Jyotsna Rewal Dua, Judge Petitioner joined the Armed Force Services on 03.10.1988. He was released from Army on 31.01.2004. He had total approved military service of 15 years 03 months and 29 days to his credit. 2. Petitioner was reemployed by the respondents as an ex-serviceman on 18.10.2010 against the post of Excise and Taxation Officer (ETO) by giving him benefit of the approved military service. However, in that process, his entire approved military service was not taken into account by the 1 Whether reporters of Local Papers may be allowed to see the judgment? yes 2025:HHC:30090 - 2 - respondents. Credit was given by the respondents to only 13 years 11 months and 22 days of military service rendered by the petitioner towards his pay fixation by counting the military service rendered by him after attaining the age of 21 years i.e. minimum age for recruitment to the post of ETO. Petitioner feels aggrieved against such act of the respondents. Tikkam Ram Vs. The State of Himachal Pradesh and Anr2 instituted by the petitioner was disposed of with direction to the respondents to consider his case in light of decision rendered in Amar Nath and Ors Vs. State of HP and Ors3. Pursuant thereto, respondents considered the case of the petitioner and passed order on 02.08.2023. Petitioner was still not granted the benefit of his entire approved military service towards pay fixation. Hence, this writ petition. 3. Learned counsel for the petitioner submits that case of the petitioner and the relief claimed by him is covered by the decision rendered in Babu Ram Versus State of 2 CWP No. 5178 of 2021, decided alongwith connected matter on 25.11.2021 3 CWPOA No. 231 of 2019, decided alongwith connected matter on 15.07.2020 2025:HHC:30090 - 3 - Himachal Pradesh and others4, as affirmed by the Hon’ble Apex Court in The State of Himachal Pradesh & Ors. Versus Babu Ram5. 4. Heard learned counsel for the parties and considered case file. The moot issue before the Hon’ble Division Bench in Babu Ram4 was as to whether the benefit of approved military service for the purpose of pay fixation in civil employment can be denied to ex-serviceman in view of amendment carried out under notification dated 29.01.2018 in Rule 5(1) of the Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services Rules 1972. As per the amendment ‘only the period of approved military service rendered after attaining the minimum age and qualification prescribed for appointment to the service concerned, by the candidate(s) appointed against reserved vacancy under the relevant rules, shall count towards fixation of pay in that service at the time of first civil appointment against reserved vacancy’. The Court held as under:- 4 CWP No.6443 of 2021, decided alongwith connected matters on 09.05.2022 5 Special Leave Petition (Civil) Diary No(s).41608/2022, decided on 25.10.2024 2025:HHC:30090 - 4 - “10. With the issuance of aforesaid Notification dated 29.1.2018, whereby rule 5 of the Rules came to be amended, Ex-servicemen who though stood appointed against a civil post in the State of Himachal Pradesh, prior to issuance of aforesaid Notification, are being denied benefit of counting of military service rendered by them, before their appointment under the Ex-serviceman quota for the purpose of pay fixation on the ground of qualification and as such, petitioners herein are compelled to approach this Court in the instant proceedings praying therein to set aside impugned Notification and communication dated 29.1.2018 and 30.1.2018. (Annexures P-5 and P-6 of CWP No. 6443 of 2020). 12 ………... 13. Moot question, which needs to be determined /adjudicated in the cases at hand is that, whether the benefit of approved military service for the purpose of pay fixation in terms of sub-rule 1 of rule 5 of Rules, 1972, can be denied to the Ex-servicemen in terms of amendment carried out in aforesaid rule 5 vide Notification dated 29.1.2018, wherein it has been provided that only the period of approved military service rendered after attaining minimum age and educational qualification prescribed for the service concerned by the candidate against reserved vacancy shall count towards fixation of pay in that service at the time of first civil employment against reserved vacancy. 14-15 ……………. 16. 14-15 ……………. 16. Having heard learned counsel for the parties and perused material available on record, this court finds that there is no dispute amongst the parties that the petitioners in the writ petitions as well as respondents in the Letters Patent Appeals having been filed by the State are Exservicemen and they all have been appointed against the posts 2025:HHC:30090 - 5 - reserved for Ex-servicemen in various Departments of State of Himachal Pradesh. 19. Now drawing strength from the aforesaid amendment carried out in the said rule, benefit of approved military service towards fixation of pay is being restricted to the period of approved military service, rendered after attaining the minimum age and educational qualification prescribed for the post, on which such Ex-serviceman is appointed. 20. Since it is quite apparent from the judgment in V.K. Behal supra, that rule 5(1) has been read down to the extent it had provided benefit of counting approved military service towards seniority in the service, there cannot be any dispute qua the entitlement of Ex-serviceman for counting of approved military service towards fixation of pay. However, in the cases at hand, State by way of issuing Notifications dated 29.1.2018 and 30.1.2018 has attempted to deny benefit of approved military service to the Ex-serviceman for the purpose of pay fixation. Vide communication dated 30.1.2018, issued by Additional Chief Secretary to the Government of Himachal Pradesh to various officers of the State, it has been conveyed that in terms of judgment of this court in V.K. Behal, benefit of seniority as per 1972 Rules and the Ex-servicemen.. (Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985 are to be reviewed and seniority lists in all cadres are to be reframed accordingly showing position as on 29.12.2008, when this Court had read down and declared the rule 5(1) of the Rules, 1972 unconstitutional, insofar as it gives benefit of counting of past army service towards seniority in civil employment in the case of ex-servicemen, who have not joined the Armed forces during the period of emergency. However, the ex- servicemen appointed against the vacancies reserved for 2025:HHC:30090 - 6 - ex-servicemen in civil employment shall be entitled to avail the benefit of fixation of pay from a date when the ex- servicemen attain minimum age and educational qualification eligibility criteria prescribed in the rules. The fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time. The above referred instructions dated 17.5.2013 were rescinded accordingly. 21. There cannot be any quarrel with the fact that now Ex- servicemen who did not join the Armed Forces during period of emergency are not entitled to have benefit of approved military service for the purpose of seniority but the action of the State, in not giving benefit of approved military service towards fixation of pay of the ex-servicemen is not sustainable in the eye of law being arbitrary. Once aforesaid right stands conferred upon Ex-serviceman in terms of provisions of sub-rule 1 of rule-5 of 1972 rules, which still exists in the rule book, amendment if any, carried out in the aforesaid rules after passing of judgment in V.K. Behal supra cannot be otherwise made applicable retrospectively qua those Ex-servicemen, who otherwise stand appointed against the posts reserved for this category prior to issuance of Notification dated 29.1.2018. Perusal of aforesaid Notification which has been extracted herein above, clearly reveals that these amended rules were to come into force from the date of publication in Rajpatra/E-gazette of Himachal Pradesh i.e. 29.1.2018, meaning thereby that the Ex-servicemen who stood appointed prior to issuance of aforesaid Notification against the posts reserved for this category, otherwise cannot be denied benefit of approved military service towards fixation of pay, on 2025:HHC:30090 - 7 - the ground of minimum age and educational eligibility criteria. 22. …………………………………….. 23. Amendment carried out in sub-rule 1 of Rule 5 vide Notification dated 29.1.2018, otherwise does not affect rights of the petitioners, who are claiming benefit of counting of approved military service towards fixation of pay. Government of Himachal Pradesh with a view to bring 1972 Rules in harmony with judgment of this Court in V.K. Behal supra has amended aforesaid rules providing therein that the approved military service shall be counted only for the period, when such Ex-serviceman acquired the minimum age and educational qualification. However, this court is of the view that provision of grant of benefit of approved military service for fixation of pay was very much in 1972 Rules and the same has not been altered /amended even by the amendment carried out vide Notification dated 29.1.2018 and as such, this court has no hesitation to conclude that the Notification dated 29.1.2018 does not affect the right of the Ex-serviceman for counting of approved military service towards fixation of pay. 24. Learned Additional Advocate General vehemently argued that in terms of Notification dated 29.1.2018, ex-servicemen would be entitled to grant of benefit of approved military service towards fixation of pay prospectively from 29.1.2018 but such plea of him deserves outright rejection being devoid of merit. Service conditions of Ex-servicemen who joined civil employment are to be determined in terms of 1972 Rules, as it existed at the time ex-servicemen joined their services. When the exservicemen joined their services, they were very much entitled for grant of approved military service towards fixation of pay. It cannot 2025:HHC:30090 - 8 - be disputed that aforesaid right of availing benefit of approved military service towards fixation of pay was very much in the rule book, which otherwise never came to be tinkered/quashed and set aside by Division Bench of this court while delivering judgment in V.K. Behal supra. 25. Consequently, in view of detailed discussion made herein above, we find merit in the writ petitions and accordingly the same are allowed and the respondents are directed to give benefit of approved military service to the ex- servicemen towards fixation of pay, from the time, they joined the civil employment, ignoring amendment carried out in provision of rule 5(1) of the rules, 1972 which otherwise can be said to have come into operation from the date of Notification dated 29.1.2018.” The State of Himachal Pradesh & Ors. Vs. Babu Ram5 instituted against the aforesaid decision was dismissed on 25.10.2024 giving finality to the decision. Petitioner was released from the Army on 31.01.2004. He was reemployed and appointed as an Ex- serviceman on a civil post by the respondents on 18.10.2010 i.e. prior to the amendment notification dated 29.01.2018. He, therefore, in light of law laid down in Babu Ram4, is entitled for the benefit of approved military service towards pay fixation in the civil employment. The decision in Babu Ram4 is squarely applicable to the facts of the instant case. 5. In view of above discussion, this writ petition is 2025:HHC:30090 - 9 - allowed. The impugned order is quashed and set aside. Respondents are directed to re-fix the pay of the petitioner after giving him benefit of approved military service in accordance law laid down in Babu Ram4. Consequential, benefits be released to the petitioner within six weeks. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua September 3, 2025 Judge R.Atal