IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.12778 of 2025 Decided on: 07.08. 2025 _________________________________________________________________ Harbans Singh ....Petitioner Versus State of H.P. & Anr. …Respondents _________________________________________________________________ Coram Ms. Justice Jyotsna Rewal Dua 1 Whether approved for reporting? _________________________________________________________________ For the petitioners: Mr. Onkar Jairath, Advocate. For the respondents: Mr. L.N.Sharma, Additional Advocate General. Jyotsna Rewal Dua, Judge Notice. Mr. L.N.Sharma, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. With the consent of learned counsel for the parties, matter is heard at this stage. 2. Petitioner was enrolled in military service on 07.09.1983. He was released from the military service on 30.09.2013. Petitioner was re-employed in civil service as 1 Whether reporters of Local Papers may be allowed to see the judgment? yes - 2 - Patwari on contract basis against reserved post of ex- servicemen on 30.05.2016. His services were regularized on 01.10.2019. With the grievance that the respondents have not counted the entire approved military service rendered by the petitioner towards fixation of his pay. Petitioner preferred Harbans Singh Vs. Vs. State of Himachal Pradesh and Anr.2. The writ petition was disposed of directing the petitioner to represent to the respondents with further directions to the respondents to consider and decide the case of the petitioner in accordance with Avtar Singh Dyal Vs. H.P.State Electricity Board Ltd.3. Pursuant thereto, respondent No.2 considered the case of the petitioner and vide speaking order passed on 27.06.2022, rejected it. The rejection is on the ground that petitioner was matriculate at the time of joining the armed forces and he acquired minimum educational qualification for the purpose of civil employment as Patwari after retirement from the Army. This order has been assailed by the petitioner in the instant writ petition. 3. Learned counsel for the petitioner submits that 2 CWP No.5017 of 2021, decided on 09.03.2022. 3 CWP No. 4654 of 2013, decided on 26.11.2014 - 3 - the issue raised by the petitioner has already been adjudicated upon in Babu Ram Versus State of Himachal Pradesh and others4, as affirmed by the Hon’ble Apex Court in The State of Himachal Pradesh & Ors. Versus Babu Ram5. The moot issue, which was determined in the said case was as to whether the benefit of approved military service for the purpose of pay fixation in terms of Rule 5(1) of 1972 Rules could be denied to the Ex-servicemen in terms of amendment carried out vide notification dated 29.01.2018, which 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 be counted towards fixation of pay in that service at the time of first civil employment against reserved vacancy. The Court held as under:- “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. 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 - 4 - 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 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 - 5 - 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 the ground of minimum age and educational eligibility criteria. 22. …………………………………….. 23. 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. ……………………………………… 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.” 4. Judging the impugned order against the ratio laid down in Babu Ram4, it is quite evident that the impugned - 6 - order has been passed without considering Babu Ram4.. Petitioner had been appointed in civil service as Patwari on contract basis against reserved post of ex- serviceman on 30.05.2016 i.e. much prior to the amendment carried out in Rule 5(1) of Demobilized Armed forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972. In view of details pertaining to petitioner’s appointment given in the impugned order, prima-facie, it appears that petitioner would be entitled to the benefits of his approved military service towards fixation of pay, however, this is an aspect which needs to be re-examined by the respondents on considering the facts of the case vis-à-vis law laid down in Babu Ram4. Accordingly, impugned order dated 27.06.2022 (Annexure P-5) is quashed and set aside. Respondent No.2 is directed to consider the case of the petitioner afresh for counting his approved military service towards pay fixation in civil employment, strictly in consonance with Babu Ram4. This exercise be carried out within four weeks from today. Copy of order so passed be also communicated to the petitioner. - 7 - The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua August 7, 2025 Judge R.Atal