2026:HHC:24051 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No.801 of 2019 Decided on: 20 th June, 2026 __________________________________________________________________ Pawan Kumar Sharma ...Petitioner Versus State of H.P. and others ...Respondents _________________________________________________________________ Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 Yes For the petitioner: Mr. Surender Sharma, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Sumit Sharma, Deputy Advocate General, for respondents No.1 & 2-State. Mr. Lokendar Paul Thakur, Senior Panel Counsel, for respondent No.3. Jiya Lal Bhardwaj, Judge (Oral) The petitioner by way of present writ petition has prayed for the following substantive reliefs:- “(i.) That the impugned entry/remark “Not falling under the category Ex-Serviceman” in the duplicate discharge certificate (Annexure-PJ) of the petitioner, dated 12th February 2009 as well as impugned Annexure-PM dated 21.02.2012 may kindly be quashed and set aside; (ii.) That the respondents no.1 and 2 may kindly be directed to grant the benefits of Approved Military 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 service to the petitioner, with all consequential benefits after restoring the office order dated 29th August 2011 Annexure-PI; (iii) That the respondent no.1 and 2 may kindly be directed to grant the financial benefits to the petitioner within a period of one months and to pay interest thereupon @ 9% per annum;” 2. Shorn of unnecessary details, the key facts of the case are that the petitioner was enrolled in Indian Air Force on 14.01.1981 and discharged on 31.05.1994. At the time of discharge, the petitioner had rendered 13 years, 4 months and 18 days of service. The petitioner who had the qualification of Bachelor of Arts (for short “B.A.”) and Masters of Arts (for short “M.A.”) which are the essential qualifications to hold the post of Lecturer (English) School Cadre and discharged from Air force being Ex-serviceman, had applied for the post advertised. He was selected and appointed on the recommendations of the Himachal Pradesh Public Service Commission as Lecturer (English) School Cadre and was posted in Government Senior Secondary School, Chowari, District Chamba, H.P. as per office order dated 18.11.1995 3 (Annexure PB), where he joined his duties. 3. Since the petitioner was discharged from service, he had exercised the option to adjust him against the reserved vacancy of Ex-servicemen in the Department as and when the vacancy occurs, in terms of instructions dated 23.05.1975. The option so exercised by the petitioner was forwarded to respondent No.2, who vide communication dated 05.09.2003, conveyed that as per the service record, the petitioner was not recommended against the post reserved for Ex-servicemen and, therefore, he could not be adjusted against such post and was not entitled to benefits of pay fixation etc. 4. The petitioner thereafter issued a notice dated 06.05.2005 (Annexure PG) through his counsel stating therein that the Department has given appointment to a fresh Ex- serviceman as Lecturer (English) like Hans Raj, GSSS Nalti, Hamirpur on 20.03.1997 etc., however, the petitioner has not been granted the benefit of approved military service against 4 reserved post and as such requested to grant the petitioner the benefit of approved military service. When no action was taken by the respondents, the petitioner had approached this Court by way of CWP(T) No.1824 of 2008, titled, Pawan Kumar Vs. State of Himachal Pradesh and Others, and this Court had disposed of the petition on 16.03.2011, directing the respondents to accord all the benefits to him in accordance with law within a period of three months from the date of receipt of certified copy of the order. In pursuance of the order passed by the Court, respondent No.2 had passed an office order on 29.08.2011 (Annexure PI), thereby adjusting the petitioner against the post reserved for Ex- serviceman subsequent to his appointment w.e.f. 08.08.2002. However, later on, it was found that the petitioner was not falling under the category of Ex-serviceman and respondent No.2 issued the show cause notice dated 09.01.2012 (Annexure PK), stating therein that it has been found that the petitioner does not fall under the category of Ex-serviceman 5 as intimated by the Air Force Record Office, New Delhi vide letter dated 30.10.2011 and as such calling upon the petitioner to reply as to why the benefit of Ex-serviceman granted to him vide office order dated 29/30.08.2011 w.e.f. 08.08.2002 should not be withdrawn as the same has been given to him erroneously. 5. The petitioner after receipt of the show cause notice, replied the same, stating that in compliance with the directions given by the Court, an office order dated 29.08.2011 was passed whereby, he was ordered to be adjusted against the post reserved for Ex-serviceman subsequent to his appointment w.e.f. 08.08.2002. After issuance of the aforesaid order, the consequences like pay fixation and seniority etc. were to be followed. However, on the contrary, show cause notice has been issued to him. It was averred by him that so far as the status of Ex-serviceman is concerned, the same is not required to be determined/looked into and the same cannot be disputed at 6 this belated stage, especially in view of the fact that there is a judgment passed by the Court in his favour. The Department had never raised the issue that the petitioner is not falling under the category of Ex-serviceman and now all of sudden, the Department cannot take a u-turn when the financial benefits etc. are to be accorded in his favour. The petitioner had further averred that as per the definition of Ex- Serviceman, a person who has served in any rank whether as a combatant or as a non-combatant in the Armed Forces of union, including the Armed Forces of the former Indian States and served for a continuous period of not less than six months after attestation is to be considered as Ex-serviceman and since the petitioner is an Ex-serviceman as per the definition, he is entitled to the benefit of Ex-Serviceman. So far as the entry in the discharge book relating to not falling under the category of Ex-serviceman is concerned, the Air Force Authorities do not have any right to declare him as not falling under the category of Ex-servicemen. The entry in the 7 duplicate discharge book with regard to not falling under the category of Ex-Serviceman, has come in the duplicate discharge book for the first time, however, the original discharge book, which was issued in his favour did not bear any such remarks. Unfortunately, the petitioner has lost the original discharge book and he has lodged an FIR in this regard and the photocopy of the original discharge book was already produced before the Deputy Director of Education, Dharamshala, District Kangra, H.P. 6. After receipt of reply to the show cause notice, respondent No.2 passed an order on 21.02.2012 (Annexure PM) withdrawing the earlier order dated 29/30.08.2011 observing that as per the record, it is found that the petitioner does not fall under the category of Ex-serviceman as intimated by the Air Force Record Office, New Delhi vide letter dated 30.10.2011 and the petitioner did not bring these facts to the notice of the Department as well as the Court and as such the petitioner has misled this Court as well as the 8 Department. 7. The petitioner feeling aggrieved by the order dated 21.02.2012 (Annexure PM), has assailed the same on the grounds that the action on part of the respondents in not granting the benefit of approved military service is illegal, arbitrary, discriminatory, unsustainable and unconstitutional inasmuch as violative of Articles 14 and 16 of the Constitution. 8. It has further been averred that the petitioner was discharged from Indian Air Force after serving the Force for a period of 13 years, 4 months and 18 days. The petitioner was selected for the post of Lecturer (English) School Cadre after the selection process and was appointed at the first instance against the unreserved vacancy. As per office memorandum 23.05.1975, it was incumbent upon the respondents to seek option from the petitioner at their own, however, the petitioner gave the option to adjust him against the vacancy reserved for Ex-Serviceman. When the petitioner was discharged from the Indian Air Force, there was no such entry 9 in the original discharge book regarding not falling under the category of an Ex-Serviceman. Once the petitioner was adjusted against the post reserved for Ex-serviceman subsequent to his initial appointment w.e.f. 08.08.2002, while passing an order on 29.08.2011, the respondents could not have issued the show cause notice and thereafter passed the order to withdraw the earlier order. The impugned office order dated 21.02.2012 has visited the petitioner with civil and evil consequences and since no proper inquiry has been conducted and the impugned order has been passed in violation of the principles of natural justice, the same is not sustainable in law and thus deserves to be quashed and set aside. 9. Respondents No.1 and 2 filed reply to the petition and averred that the petition is not maintainable as neither any legal and fundamental right of the petitioner has ever been infringed in any manner nor any cause of action has accrued in his favour to file and maintain the present petition. 10 When the petitioner had earlier filed the writ petition, the Department could not file reply despite repeated directions, which has resulted into passing of order by the Court on 16.03.2011. Upon receipt of the copy of judgment, the matter was dealt with and the petitioner was ordered to be adjusted against the post reserved for an Ex-serviceman, as per order dated 30.08.2011 w.e.f. 08.08.2002. However, at the time of sending the case of the petitioner for pay fixation and service book along with supporting documents, the Principal of Government Senior Secondary School, Dah-Kulhara, District Kangra, vide letter dated 08.11.2011, also pointed out that the original discharge book of the petitioner is not attached, but the photocopy of the discharge book clearly provides that in the reason of release from the Air Force service, there is a remark against the petitioner to the extent that “Unsuitable for retention in Air Force.” Upon its receipt, complete matter was re-examined and it was decided that the order of appointment of the petitioner as Ex-Servicemen w.e.f. 11 08.08.2002 be withdrawn immediately. Thereafter show cause notice was issued and after considering reply filed by the petitioner to the show cause notice, the order was passed. As per discharge certificate (Annexure PJ) issued on 12.02.2009, it is clearly written on the top in the duplicate certificate that “the petitioner is not falling under the category of Ex- serviceman.” In column No.3, the other reason for discharge is specifically written “that his service no longer required, unsuitable for retention in the Indian Air Force”. Therefore, as per definition of Ex-serviceman, the petitioner having been discharged on account of misconduct has not been granted the said benefit by respondent No.3 and hence, the petitioner does not fall within the definition of Ex-serviceman and the petitioner has mislead and tried to obtain the benefit from the Court as such under law of equity, his claim deserves rejection. 10. It has also been averred that the respondents had filed review petition No.117/2012 recalling the order dated 12 16.03.2011 passed by the Court and the said review petition, which was disposed of on 16.07.2012 (Annexure R-1), it was recorded that the benefit of Ex-serviceman accorded to the petitioner stands withdrawn by respondent No.2 vide office order dated 21.02.2012, which is after passing the judgment dated 16.03.2011 and prior to filing the review petition. The petitioner has independently assailed the order dated 21.02.2012, while filing the present petition and in view of this, the review petition was disposed of. 11. Respondent No.3 filed reply to the petition and averred that no fundamental or constitutional right whatsoever of the petitioner has been infringed and as such the petition is not maintainable. The petitioner has not approached this Court with clean hands. The petitioner was enrolled in Indian Air Force on 14.01.1981 and discharged from service on 31.05.1994 under the clause “his service no longer required-unsuitable for retention in the Indian Air Force”. The petitioner had rendered 13 years and 92 days of 13 service’ and, therefore, he is not eligible for service pension as he has not completed 15 years of service. It has also been averred that the respondent has issued the discharge certificate (Annexure PJ) and in the discharge certificate, it has been mentioned that “not falling under the category of Ex- serviceman”. It has further been averred that as per the policy in vogue, where an Airman, who is discharged from the Indian Air Force without pension under the clause of “his services no longer required-unsuitable for retention in the Indian Air Force” is being issued with a single sheet discharge certificate annotation “Individual not falling under the category of Ex-serviceman.” Copy of policy letter dated 15.06.2004 has also been placed on record annexed as Annexure R-1. 12. The petitioner has not filed rejoinders to the replies filed by the respondents. 13. I have heard the learned counsel for the parties and also perused the record carefully. 14 14. Mr. Surender Sharma, learned counsel for the petitioner, has vehemently argued that respondent No.2, before passing the order dated 21.02.2012, ought to have conducted the inquiry, since the said order had civil/evil consequences as per the judgment passed by the Hon'ble Supreme Court in Roop Singh Negi vs. Punjab National Bank and Others, (2009) 2 SCC 570. 15. The aforementioned judgment is not attracted to the facts of the present case for the simple reason that in the present case, the petitioner was granted the benefit of the service rendered by him in the Indian Air Force vide order dated 29.08.2011 (Annexure P-I), whereby he was adjusted against the Ex-serviceman category w.e.f. 08.08.2002. The said benefits were subsequently withdrawn, in view of the fact that the petitioner does not fall under the category of Ex- serviceman. The judgment referred above would be attracted when the enquiry is initiated against the delinquent officer and not in a case where the benefits illegally granted are 15 withdrawn. 16. The petitioner at the time of his appointment as Lecturer (English) School Cadre was appointed as general candidate and was not granted the benefit of an Ex- serviceman and when subsequently, he was granted the same, it was after the direction given by this Court in the writ petition filed by him, which was disposed of on 16.03.2011 and there was no reply filed by the respondents. However, when later on, it was noticed by the Department that the petitioner does not fall under the category of Ex-serviceman, which fact has now even been supported by respondent No.3, with whom the petitioner had earlier served, the plea taken by learned counsel for the petitioner that regular inquiry could have been initiated cannot be countenanced for the simple reason that the matter is based on the documents placed on record and the benefit of Ex-serviceman was not granted, except passing the order, which has been withdrawn. 17. The petitioner has not disputed the factum of 16 issuance of the duplicate certificate which has been placed on record. Not only this, the original discharge certificate which was available with the petitioner was lost and thus the entry made in the duplicate certificate cannot be disbelieved. No doubt, the petitioner has lodged an FIR against the missing of his original discharge book, but that cannot substantiate the plea raised by the petitioner that he is an Ex-serviceman. 18. Learned Counsel for the petitioner further argued that as per the definition of Ex-serviceman quoted in the petition, once the petitioner had served for more than six months, he is to be considered as an Ex-serviceman. The said submission cannot be accepted for the simple reason that the definition so provided does not say that the person who has served for six months, is entitled to get the benefit of Ex- serviceman. 19. It is also worth noticing that the respondents had passed the order to consider the petitioner as Ex-serviceman and granted the benefit as per office order dated 29.8.2011 17 (Annexure P-1), which was in sequel to the directions given by this Court. However, later on, after noticing the fact that the petitioner is not an Ex-serviceman, even a review petition was preferred before the Court, recalling the order dated 16.3.2011 and the review petition preferred by the respondents was disposed of on 16.7.2012, taking note of the fact that after the directions issued by the Court, office order dated 21.02.2012 has been passed by respondent No.2. Since the petitioner is not an Ex-serviceman and has not even granted the service pension by respondent No.3, it cannot be construed that the action on the part of respondent No.2 while passing the order dated 21.02.2012, is illegal or vitiated. 20. Learned Deputy Advocate General has drawn the attention of this Court to the judgment passed by the Hon'ble Supreme Court in Chairman and Managing Director, Food Corporation of India and others vs. Jagdish Balaram Bahira and others, (2017) 8 SCC 670, to contend that once the person has obtained the appointment by playing fraud and 18 rested his claim on a false certificate, he is not entitled to claim equity. 21. In the present case, the petitioner has not committed any fraud, but once respondent No.3 has issued the certificate, specifically mentioning that the petitioner does not fall under the category of Ex-serviceman, he is not entitled to get the benefit of an Ex-serviceman, granted to him, in sequel to the direction given by the Court in judgment dated 16.03.2011. Once respondent No.2 after ascertaining the truth has found that the petitioner does not fall under the category of an Ex-serviceman, no illegality can be found in the order passed by him, whereby the earlier order issued, granting the benefit of an Ex-serviceman has been withdrawn. 22. Consequently, I do not find any merit in the present petition and the same is accordingly dismissed. No order as to costs. Pending application(s), if any, shall also stand disposed of. 19 20 th June, 2026 ( Jiya Lal Bhardwaj ) (ankit) Judge