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2025 DAILYLAW 3809 (HP)

Kuldeep Singh v. State of H. P.

2025-10-13

Satyen Vaidya

body2025
JUDGMENT : Satyen Vaidya, Judge By way of instant petitioner, the petitioners have prayed for grant of following reliefs:- “a. Call for the records; b. Quash and set aside office order dated 13.12.2019 issued by the Director General, Prisons and Correctional Services (Annexure P- 12); c. Direct the respondents to accord the benefit of past service rendered by the petitioners in the armed forces in computing their respective Seniority; d. Direct the respondents not to promote anyone by superseding the petitioners and not to convene DPC for that purpose of promotion to the post of Head Warders (HW) and Assistant Superintendent Jail (ASJ); e. Quash and set aside the tentative and final Seniority lists issued on 20.2.2018 and 7.3.2018 fixing the seniority of the Warders 29.12.2008 [Annexure(s) P-4 and P-5] respectively and/or any other Seniority list as being arbitrary, malafide and illegal and demote the persons who got benefited/promotion on the basis of the same; f. Direct the respondent department to reframe and finalize the seniority list on the basis of notification dated 25.02.2019 by conferring the benefit of seniority upon the petitioners under Rule 5(1) of Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non Technical Services) Rules, 1972 with all consequential benefits including arrears of salary, etc. alongwith interest. g. Quash and set aside the promotion of private respondent No. 4 to the post of Head Warder; h. Any other and further relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the petitioners in interest of justice and fair play.” 2. Petitioners are working as Honorary Head Warders in the department of Prisons and Correctional Services, Government of Himachal Pradesh. All the petitioners are ex- servicemen. They are seeking benefit of approved military service for seniority and on such basis claim promotion to the post of Head Warders. 3. Petitioners are working as Honorary Head Warders in the department of Prisons and Correctional Services, Government of Himachal Pradesh. All the petitioners are ex- servicemen. They are seeking benefit of approved military service for seniority and on such basis claim promotion to the post of Head Warders. 3. Petitioners have built their claim on the foundation that though Rule 5(1) of the Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh State Non-Technical Services), Rules 1972 (for short “Rules of 1972”) has been read down by this Court as unconstitutional while delivering judgment dated 29.12.2008 in CWP No. 488 of 2001 titled as V.K. Behal and Others vs. State of H.P. & Ors., yet the said judgment could be applied prospectively only and further the State Government vide notification dated 25.02.2019 had made the upshot of said judgment in V.K. Behal ineffective for the category of petitioners, who were appointed as Warders before 29.12.2008 i.e. the date on which judgment in V.K. Behal was pronounced. 4. The disputation of the petitioners, however, has not found favour with respondent No.2, who has rejected their representations vide impugned order Annexure P-12, dated 13.12.2019. 5. The case as set up by the petitioners is that they are senior to the private respondents and such seniority is being claimed on the basis of addition of their approved military service to the service rendered by the petitioners to the State Government. It is averred in the petition that the Department of Personnel, Government of Himachal Pradesh had issued communication dated 30.01.2018, whereby instructions were issued for reviewing the seniority, extended under the provisions of 1972 Rules in all cadres and to reframe the same accordingly showing position as on 29.12.2008. It is alleged that despite aforesaid instructions, respondent department had issued tentative seniority list of Warders and female Warders (Class-III Non-Gazetted) as on 29.12.2008 and the said list was finalized on 20.2.2018, whereby the petitioners were wrongly shown junior to the private respondents. 6. It is alleged that despite aforesaid instructions, respondent department had issued tentative seniority list of Warders and female Warders (Class-III Non-Gazetted) as on 29.12.2008 and the said list was finalized on 20.2.2018, whereby the petitioners were wrongly shown junior to the private respondents. 6. Some of the petitioners had challenged the seniority list issued on 20.02.2018 before the erstwhile H.P. State Administrative Tribunal in O.A. No. 718 of 2018, however, during the pendency of said O.A., the State Government issued notification dated 25.02.2019, whereby it had decided to withdraw the earlier instructions dated 30.01.2018 with further direction that no change was required, in the seniority of those ex-servicemen, who had been given the benefit of seniority under 1972 Rules and also the seniority position before the date of judgment of this Court in V.K. Behl (supra). The original application No. 718 of 2018  was  allegedly  withdrawn  on  the  premise  that  the grievance of the applicants therein stood redressed by issuance of notification dated 25.02.2019. 7. In the meanwhile, learned Tribunal vide order dated 04.07.2018 passed in O.A. No. 718 of 2018 had made the promotions to the post of Head Warders subject to outcome of original application. 8. The petitioners, thereafter submitted their representation to the competent authority. Having failed to get redressal of grievances, some of the petitioners had approached this Court by way of CWP No. 3043 of 2019. The said petition was disposed of on 23.10.2019 with direction to the respondents to consider the representations made by the petitioners as per the notification dated 25.02.2019 and pass appropriate orders within two months. 9. Consequently, the impugned order Annexure P-12 was passed. Hence this petition. 10. I have heard learned counsel for the parties and have also gone through the entire record carefully. 11. Rule 5(1) of the 1972 Rules originally read as under: - “Service rendered in the armed forces including the period spent on training prior to Commission in the case of Commissioned Officers, shall count, in full, towards seniority and fixation of pay under the State Government in the post to which he is first appointed against the vacancy reserved under Rule 3.” 12. This rule however was amended vide notification dated 06.12.1980 which read as under:- “Seniority and pay of the candidates who are appointed against the vacancies reserved under Rule 3 shall be determined on the assumption that they joined the service or the post, as the case may be under the State government at the first opportunity they had after they joined the military service or training prior to the Commission.” 13. The aforesaid provision was again amended and read as under:- “(1) Only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the service concerned by the candidates appointed against reserved vacancies under the relevant Rules, shall count towards fixation of pay and seniority in that service. This benefit shall however be allowed at the time of first civil employment only and it shall not be admissible in subsequent appointments of ex-servicemen who are already employed under the State/Central Govt. against reserved posts.” 14. It is precisely this rule that came up for consideration before a Division Bench of this Court in V.K. Behal’s case and was held unconstitutional insofar as it gave benefit of counting past armed forces service towards seniority in civil employment in case of ex-serviceman, who had not joined armed forces during the period of emergency. 15. The aforesaid Rule 5 (1) of the 1972 Rules was read down as unconstitutional by the Division Bench of this Court in V.K. Behal (supra) in following terms:- “In view of the above discussion, the writ petition is allowed. The Provision of Rule 5(1) of the Rules are read down and they are held to be unconstitutional in so far as they give benefit of counting the past army service towards seniority in civil employment in case of ex-servicemen who have not joined the Armed forces during the period of emergency. It is also held that the benefit of such service cannot be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria prescribed in the rules. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. There shall be no order as to costs.” 16. Consequently, the seniority list Annexure P-3 is held to be illegal and is accordingly quashed and the respondents are directed to re-frame the same in accordance with the directions issued hereinabove. There shall be no order as to costs.” 16. Judgment in V.K. Behal was assailed before the Hon’ble Supreme Court and was affirmed by the Hon’ble Supreme Court vide judgment dated 25.08.2017 passed in case titled as R.K. Barwal and others. vs. State of Himachal Pradesh & Ors. (2017) 16 SCC 803 . 17. The State Government thereafter came up with notification dated 30.01.2018 restricting the implementation of the judgment in V.K. Behal from the date of judgment i.e. 29.12.2008. Thereafter, another notification dated 25.02.2019 was issued, whereby the earlier notification dated 30.01.2018 was withdrawn and no change in the seniority of those ex-servicemen was contemplated who had been given the benefit of seniority under 1972 Rules before the date of judgment in V.K. Behal. 18. Since, the petitioners have based their case entirely on the notification dated 25.02.2019 issued by the State Government, it will be apt to take notice of the implication, if any, of such notification or the earlier notification dated 30.01.2018 vis a vis the judgment in V.K. Behal. 19. The scope to undo effect of judicial pronouncement by legislative action has been discussed by Hon’ble Apex Court as under in Indian Aluminum Co. and Others Vs State of Kerala and others (1996) 7 SCC 637 :- “36. The validity of the validating Act is to be judged by the following tests: [i] whether the legislation enacting the validating Act has competence over the subject matter; [ii] whether by validation, the legislature has removed the-defect which the court had found in the previous law [iii] whether the validating law is inconsistent with the provisions of Chapter III of the Constitution. If tests are satisfied, the Act can confer jurisdiction upon the Court with retrospective effect and validate the past transactions which were declared to be unconstitutional. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded.” 20. The legislature cannot assume power of adjudicating a case by virtue of its enactment of the law without leaving it to the judiciary to decide it with reference to the law in force. The legislature also is incompetent to overrule the decision of a Court without properly removing the base on which the judgment is founded.” 20. Hon’ble Supreme has reiterated the same view in Union of India and others Vs. Exide Industries Ltd and another, (2020) 5 SCC 274 :- “37. It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment as a judgment is delivered with strict regard to the enactment as applicable at the relevant time. However,  once  the  enactment  itself  stands corrected, the basic cause of adjudication stands altered and necessary effect follows the same. A legislative body is not supposed to be in possession of a heavenly wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts a law to that effect. It is in the nature of a ‘trial and error’ exercise and we must note that a lawmaking body, particularly in statutes of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid.” 21. Thus, it is well settled that the declaration made by a judgment of Constitutional Court can be undone by a legislative or executive action only in permissive circumstances. In the case in hand, no such special circumstances  have  been  carved  out  and,  therefore,  the action of the State Government in issuing notifications dated 30.1.2018 and 25.02.2019 cannot be countenanced. 22. Thus, it is well settled that the declaration made by a judgment of Constitutional Court can be undone by a legislative or executive action only in permissive circumstances. In the case in hand, no such special circumstances  have  been  carved  out  and,  therefore,  the action of the State Government in issuing notifications dated 30.1.2018 and 25.02.2019 cannot be countenanced. 22. Further, in Central Bureau of Investigation vs. R.R. Kishore, (2023) 15 SCC 339 a Constitutional Bench of the Hon’ble Supreme Court has reasserted the legal position as under: - “71. Further in Surajkumar Okram case (2022) 19 SCC 723 after discussing the law laid down by the previous pronouncements, the principles were deduced in paragraph 39 to state that a statute declared unconstitutional by a court of law would be stillborn and nonest for all purposes. SSC para 39 of the Report is reproduced hereunder: "39. The principles that can be deduced from the law laid down by this Court, as referred to above, are: 39.1. A statute which is made by a competent legislature is valid till it is declared unconstitutional by a court of law. 39.2. After declaration of a statute as unconstitutional by a court of law, it is non est for all purposes. 39.3. In declaration of the law, the doctrine of prospective overruling can be applied by this Court to save past transactions under earlier decisions superseded or statutes held unconstitutional. 39.4. Relief can be moulded by this Court in exercise of its power under Article 142 of the Constitution, notwithstanding the declaration of a statute as unconstitutional.” (emphasis supplied)" 72. From the above discussion, it is crystal clear that once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est in view of Article 13(2) of the Constitution and its interpretation by authoritative pronouncements. Thus, the declaration made by the Constitution Bench in the case of Subramanian Swamy (supra) will have retrospective operation. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003.” 23. Thus, there cannot be any doubt that Rule 5 (1) of 1972 Rules, once having been declared unconstitutional, had lost its efficacy for all intents and purposes. Section 6A of the DSPE Act is held to be not in force from the date of its insertion i.e. 11.09.2003.” 23. Thus, there cannot be any doubt that Rule 5 (1) of 1972 Rules, once having been declared unconstitutional, had lost its efficacy for all intents and purposes. It was non-est and any attempt to limit its implementation itself was without jurisdiction and nullity save and except as permitted by law. In the instant case, merely on the basis of notification issued by the State Government, the effect of judgment in V.K. Behal as affirmed in R.K. Barwal by the Supreme Court could not be diluted even slightly. The State could have used its legislative powers within the parameters prescribed by law, which it has failed to do. 24. As the very substratum of the case of the petitioner has no basis, they cannot be held entitled to any relief. 25. In result, there is no merit in the instant petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.