Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1617 OF 2009 (Arising out of SLP [C] No.15064 of 2007)

State of H.P. & Anr. … Appellant (s)

Vs.

Anjana Devi & Ors. … Respondent (s)

O R D E R

Leave granted. Heard learned counsel.  

2. One Rakesh Chand Sood (of whom respondents 1 to 3 are the legal

representatives)  and Sukh Dev (fourth respondent) were in Naval  service

from 14.10.1966 to  31.10.1981 and  20.3.1969  to  31.9.1981  respectively.

After their discharge/release, they joined the service of State Public Works

Department (Electrical Wing) as Junior Engineers with effect from 1.1.1983

and 15.1.1983. Their selection and appointment was under general category.

3. The State made rules providing for reservation for demobilized armed

force personnel in Himachal State Non-Technical Services with effect from

28.3.1972  under  Demobilised  Armed  Forces  Personnel  (Reservation  of

Vacancies  in  the  Himachal  State  Non-Technical  Services)  Rules,  1972

(‘1972 Rules’ for short). Rule 3 provided for reservation of vacancies for

released Armed Forces Personnel  in non-technical  posts,  to the extent  of

25% for class-I posts,  30% for class-II posts,  and 20% for  class-III and

class-IV posts.  The percentage of reservation was subsequently modified.

Rule  5  thereof  provided  that  service  rendered  in  the  armed  forces  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

under Rule 3. By a subsequent  circular dated 23.5.1975, it  was reiterated

that various concessions extended by the 1972 Rules were admissible only

in the case of released armed forces personnel who were selected against

reserved vacancies. It clarified that the concessions cannot be extended to

persons appointed to unreserved vacancies. It however provided that where

a released army personnel had qualified against a non-reserved vacancy and

had  been  appointed  against  a  general  un-reserved  vacancy  in  the  first

instance,  he  should  be  given  an  option  (only  at  the  time  of  first

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appointment) to accept a reserved vacancy even if it occurs subsequent to

his appointment so as to extend to them the benefit of concessions-seniority

and fixation of pay. The said 1972 Rules were amended from time to time.  

4. By  circular dated 3.5.1983, the state government notified its decision

to henceforth reserve 15% vacancies in all posts/services for ex-servicemen,

not  only in  non-technical  services,  but  also  in  technical  services  (that  is

Medical  and  Engineering  Services).  Thus,  the  reservation  which  was

available  only  against  non-technical  posts  under  the  1972  Rules,  was

available in regard to technical posts also, with effect from 3.5.1983, by an

executive  order.  The  said  executive  order  (circular)  was  subsequently

replaced  by  regular  rules  made  under  Article  309,  known  as  the  Ex-

Servicemen (Reservation of Vacancies in the Himachal Pradesh Technical

Services)  Rules  1985  vide  notification  dated  19.9.1986.  The 1985  Rules

were  initially  brought  into  effect  from  the  date  of  the  notification

(19.9.1986)  but  subsequently,  amended  and  given  effect  from 3.5.1983.

Rule  3  thereof  provided  for  15% of  the  vacancies  to  be  filled  by direct

recruitment in Himachal Pradesh Services to be reserved for being filled by

recruitment of ex-servicemen. Rule 5 provided that the period of approved

military service shall be counted in the case of candidates appointed against

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reserved  vacancies under the rules, for fixation of pay and seniority in that

service at the time of first civil appointment against reserved vacancy.  

5. By  circular  dated  11.12.1987,  the  state  government  applied  the

instructions contained in the circular dated 23.5.1975 (referred to in para 3

above)  to  the  ex-servicemen  appointed  against  un-reserved  posts  in

technical services with effect from the date the 1985 Rules came into force.

Thus the ex-servicemen appointed to general unreserved technical service

vacancies, after the 1985 Rules came into effect (3.5.1983), were given the

option  to  accept  any  reservation  vacancy  occurring  subsequent  to  his

appointment.  

6. Rakesh Chand Sood and Sukh Dev, as noticed above, were appointed

against general vacancies in a technical service on 1.1.1983 and 15.1.1983.

At the time of their appointment, there was no reservation for ex-servicemen

in technical services, which began only from 3.5.1983. Therefore, they were

not given the benefit of seniority and fixation of pay in terms of the circular

dated  3.5.1983  or  the  1985  Rules  which  replaced  the  circular.  Their

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representation purporting to exercise option to accept  a reserved vacancy

and  seeking  the  relief  of  counting  their  approved  military  service  for

purposes of fixation of pay and seniority was rejected by the Chief Engineer

on 7.10.1992. Feeling aggrieved, they approached the State Administrative

Tribunal in OA No.1555/1993. The Tribunal, by its order dated 26.9.2001

(by a majority of 2:1 on reference to Chairman on difference between two

members) allowed the application  on the following terms :  

“……………applicants  had  exercised  their  option  while  filing  the representation  for  being  considered  to  the  vacancies  reserved  for  ex- servicemen  pursuant  to  letter  issued  by  the  Government  of  Himachal Pradesh dated May 23, 1975. Both the applicants shall be deemed to have accepted the offer to be appointed against the vacancies reserved for ex- servicemen  occurring  immediately  after  3.5.1983  for appointment/adjustment  with all  consequential  benefits.  In other words, both the applicants shall be considered against the first vacancies occurred immediately  after  3.5.1983  falling  immediately  after  the  cut  off  date. Respondents  are  accordingly  directed  to  appoint/post  the  applicants against the aforesaid vacancies reserved for ex-servicemen and to fix their pay had seniority in accordance with the provisions of 1972 Rules.”

7. The  said  order  of  the  Tribunal  was  challenged  by  the  state

government before the High Court and the High Court  has dismissed the

writ petition on 2.4.2007. The High Court was of the view that the circular

dated 11.12.1987 restricting the benefit to only those who were appointed

on  or  after  3.5.1983,  left  out  ex-servicemen  who were  appointed  before

3.5.1983  from  the  benefit  of  option,  thereby  creating  an  impermissible

classification  without  any  rationale,  between  ex-servicemen  appointed

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within  the  same  technical  service.  The  High  Court  held  that  the

classification excluding those appointed before 3.5.1983 was arbitrary and

discriminatory and violative of    Article 14 as it was not founded on any

intelligible differentia having a rational relation to the object sought to be

achieved by the 1985 Rules.  

8. The  question  that  therefore  arises  for  consideration  is  whether  the

benefits of 1985 Rules should be extended to those who were appointed

prior to 3.5.1983 by giving them an option to accept any reserved vacancy

occurring subsequent  to  their  appointment  so  as  to  secure  the  benefit  of

counting their military service for purposes of seniority and pay fixation.  

9. As noticed  above,  the  respondents  were  appointed  against  general

category  technical  posts.  When  they  were  appointed  reservation  was

available  only  in  respect  of  non-technical  direct  recruitment  posts.  The

benefit of counting the previous service rendered in the armed forces for the

purpose  of  seniority  and  fixation  of  pay  was  available  only  to  those

appointed  to  non-technical  services  under  reservation  category under  the

1972 Rules. The benefit of reservation was extended to technical post firstly

by an executive order dated 3.5.1983. Subsequently, the 1985 Rules were

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made under Article 309, providing for reservation even in technical posts

and the said 1985 Rules were given effect from 3.5.1983, which was the

date on which reservation was provided for posts in technical services by an

executive  order.  Every ex-serviceman  who was recruited  against  general

(non-reserved) vacancies in the non-technical services, was given an option

to accept a reserved vacancy occurring subsequent to his appointment by a

circular dated 23.5.1975. This benefit was obviously intended for those who

were appointed to non-reserved posts, after the 1972 Rules came into force.

Similarly,  every  ex-serviceman  who  was  recruited  against  general  (non-

reserved) vacancies in technical services was also given an option to accept

a  reserved  vacancy  occurring  subsequent  to  his  appointment  by  circular

dated 11.12.1987. This option was restricted to those who were appointed to

non-reserved  posts  on  or  after  the  date  when  the  1985  Rules  came into

effect, that is, 3.5.1983. There is thus no discrimination much less hostile

discrimination as assumed by the Tribunal and the High Court.  

10. In so far as the technical service vacancies are concerned, as noticed

above,  reservation  was  introduced  for  the  first  time  with  effect  from

3.5.1983.  Discrimination  presupposes  classification  of  similarly  situated

persons into different  groups without  any reasonable basis,  for extending

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dissimilar benefits or treatment. The technical  services and non-technical

services  were  clearly  different.  Persons  appointed  against  reserved

vacancies  after  reservation  was  provided,  and  persons  appointed  before

introduction  of  reservation,  clearly  belong  to  different  classes.  As

reservation was introduced for posts in  technical   services  with   effect

from   3.5.1983,     ex-servicemen    who  were appointed  against  non-

reserved technical posts on or after 3.5.1983 were given the option to accept

the subsequently  arising  reserved vacancies.  As persons  appointed  on or

after 3.5.1983 and those appointed prior to 3.5.1983 are not  of the same

‘class’, different yardsticks could be applied to them. The respondents could

have complained of  discrimination  only if  a  benefit  had been introduced

retrospectively by fixing a cut off date arbitrarily thereby dividing a single

homogeneous  class  into  two  groups  and  subjecting  them  to  different

treatments.  That  is  not  the  case  here.  Choice  of  the  date  3.5.1983  for

extension of benefit of option  is not an arbitrary selection of a cut off date.

It  is  logical  and rational,  being the  date  on which  reservation  was  made

applicable to technical services.  Thus ex-servicemen appointed to technical

services were entitled to the benefits conferred by    the 1985 Rules only if

they were  :  (a)  appointed  to  a  reserved  vacancy created  under  the  1985

Rules;  or (b) appointed to a non-reserved vacancy after  reservation came

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into effect, that is on or after 3.5.1983, but exercised the option to accept a

reserved vacancy occurring subsequent to his vacancy.  

11. We are of the view that the orders of the Tribunal and the High Court

are not in accordance with law. Accordingly, we allow this appeal and set

aside the orders of the High Court and the Tribunal and dismiss the original

applications.  

_________________J. [R. V. Raveendran]

__________________J [Markandey Katju]

New Delhi; March 17, 2009.   

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