IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 16540/2025 Decided on: 12.11.2025 Gian Dutt …Petitioner Versus State of H.P. & Ors. .…Respondents. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner: Manohar Lal Sharma, Advocate. For the respondents: Mr. Y.P.S.Dhaulta, Additional Advocate General. Jyotsna Rewal Dua , J Notice. Mr. Y.P.S.Dhaulta, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. . 2. Learned counsel for the petitioner submitted that petitioner’s grievance concerns fixation of his pay in his present post after giving him benefit of entire approved military service. Respondents have declined to grant him the claimed benefits, under impugned order dated 02.08.2025 (Annexure P-10) The case set up by the petitioner is that: - He is an ex- 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 servicemen, who had rendered 16 years and 7 months of service in Indian Army w.e.f. 10.08.1998 to 31.08.2015. He was re-employed in civil employment and joined as Lab Attendant on 16.07.2021 on contract basis in the respondents-Education Department. His services were regularized on 03.10.2023. The benefit of petitioner’s entire approved military service towards pay fixation was not given to him. Learned counsel further submitted that the said issue of granting the benefit of approved military service by taking into consideration the entire approved military service has been adjudicated upon in Babu Ram Vs. State of H.P. & Ors.2 and Ganesh Dutt Vs. State of H.P. & Anr.3. Relevant portion from Ganesh Dutt3, which in turn is based upon Babu Ram2 is extracted hereinafter: - “4. Heard learned counsel for the parties and considered the case file. Learned Additional Advocate General opposes grant of the benefit of approved military service to the petitioner towards fixation of pay in civil employment primarily on the ground that vide notification dated 29.01.2018, the Department of Personnel, Government of Himachal Pradesh had amended Rule 5(1) of Demobilized Armed Forces Personnel (Reservation of Vacancies in 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, 2 CWP No.6443/2021 decided a/w connected matters on 09.05.2022 3 CWP No.5224/2021 decided on 25.04.2025 3 shall count towards fixation of pay in that service at the time of first civil appointment against reserved vacancy. This benefit shall not be admissible in subsequent appointment(s) of Ex Servicemen who are already employed under the State/Central Government against reserved post(s): Provided that such fixation of pay will be in accordance with the instructions issued by the Finance Department from time to time’. Respondents’ stand is that the petitioner had obtained minimum qualification for the post of Junior Office Assistant (IT) in the year 2007, hence, benefit of approved military service cannot be granted to him. The aforesaid amendment was considered in Babu Ram’s2 case. 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. 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. 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 4 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 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 5 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. 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.” The judgment in Babu Ram’s2 case applies to the case of the petitioner as well. Petitioner had even otherwise joined civil employment prior to coming into force of notification dated 29.01.2018.” 6 Reliance was also placed upon Dilbag Vs. HRTC & Ors.4. Portion relevant to the context as emphasized by learned counsel for the petitioner reads as under: - “…..As per the aforesaid office communication, contractual ex-servicemen engaged before 29.01.2018, but whose service were been regularized after 29.01.2018, would be governed by the amended rules i.e. as amended under notification dated 29.01.2018. It is seen from the record that on 01.04.2021 (Annexure R-5), Personnel Department had clarified that ‘the matter of pay fixation of ex-servicemen pending for decision up-to 29.01.2018 be disposed of, allowing the benefit of counting of past service rendered in armed forces towards of pay fixation without enforcing the condition of minimum age and qualification and the settled position may not be unsettled’. Notification dated 29.01.2018 has already been interpreted in Babu Ram2 that the benefit of approved military service to the ex-servicemen for the purpose of pay fixation is not dependent upon their possessing minimum qualification. Petitioner was even otherwise appointed in Civil Employment as TMPA (Contract) pursuant to a selection process on 06.05.2017. His appointment was much before the issuance of notification dated 29.01.2018. Petitioner was appointed against a post reserved for ex-serviceman (OBC). His prayer for fixation of his pay by giving him benefit of approved military service, therefore, is covered by decision in Babu Ram2. Annexure R-4 will not come in the way of the petitioner from getting the benefit of approved military service towards fixation of pay. 4 CWP No. 11982/2024 decided on 28.04.2025 7 5. In view of above discussion, the writ petition is allowed. Impugned orders dated 03.10.2024 (Annexure P-5) and 12.09.2024 (Annexure P-6) are quashed and set aside. Respondents are directed to re-fix the pay of the petitioner after giving him benefit of approved military service as was done by them at Annexure P-4 dated 16.11.2021. Consequential benefits be released to the petitioner within six weeks. Amount, if any, recovered from the petitioner on account of impugned re-fixed (reduced) pay scale be also released in his favour. Pending miscellaneous application(s), if any, shall also stand disposed of.” Reliance was also placed upon Dharmesh Sharma Vs. State of H.P. & Anr.5. Relevant portion whereof reads as under: - “2. The issue is no longer res integra in terms of judgment passed in Avtar Singh Dyal Vs. H.P. State electricity Board Ltd. CWP No. 4654 of 2013 and connected matters, decided on 26.11.2014, wherein Ex-servicemen have been held to be entitled for grant of benefits of counting of approved military service, towards fixation of pay. 3. Other than the aforesaid, in Avtar Singh’s case, it has further been held that the right of Ex-servicemen to avail benefits of counting approved military service towards fixation of pay in terms of sub-rule (1) of Rule 5 of Demobilized Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non- Technical Services) Rules, 1972 (here-in-after for purpose of brevity called “the rules”) cannot be denied/defeated even if an Ex-serviceman had not joined the Armed Forces during emergency. 5 CWP No. 1228/2024 decided on 06.09.2024 8 4. Vide Notification dated 29.01.2018, an amendment was carried out in sub-Rule (1) of Rule 5 of the rules. In this respect, it would be refer to judgment passed in CWP No. 6443 of 2021, titled Babu Ram vs. State of H.P. & others, decided on 09.05.2022, wherein, it has been categorically held that provision of grant of benefits of approved military service for fixation of pay were in vogue even in the 1972 Rules and the same has not been altered/ amended even by the aforesaid amendment carried out. 5. Consequently, in view of the abovesaid, I find merit in the writ petition and accordingly the same is allowed. Accordingly, rejection letters i.e. Annexures P9 & P16 are quashed 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 1972 rules which otherwise can be said to have come into operation from the date of Notification dated 29.1.2018. 6. Petition is allowed in the aforesaid terms, so also, pending miscellaneous application(s), if any.” 3. Learned counsel for the petitioner also submitted that petitioner in Dharmesh Sharma6 had been appointed after 29.01.2018 and he has been given benefit of decision rendered in Babu Ram2. The judgment rendered in his favour stands implemented. Learned counsel further submitted that the petitioner would be satisfied, in case, respondent No.2/competent authority is directed to reconsider the case of the petitioner for redressing his grievance in respect of refixing 9 his pay by taking into consideration his entire approved military service, in accordance with law laid down in the aforesaid decisions within time bound schedule. Learned Additional Advocate General has no objection to this prayer. 4. Having regard to the above submissions and notwithstanding Annexure P-10 dated 02.08.2025, the instant writ petition is disposed of by directing respondent No.2/competent authority to reconsider and decide the case of the petitioner afresh, in accordance with law and as well as taking into consideration the above decisions, within a period of six weeks from today. The order so passed be also communicated to the petitioner. Pending miscellaneous application(s), if any, shall also stand disposed of. Jyotsna Rewal Dua Judge November 12, 2025 R.Atal