Jagmohan Singh Dhillon Etc.Etc. vs Satwant Singh

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4616-4618/2010

JAGMOHAN SINGH DHILLON ETC.ETC. ...APPELLANT(S)

VERSUS

SATWANT SINGH & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

These appeals have been filed against the Division

Bench Judgment of High Court of Punjab and Haryana

dated 28.07.2009 in LPA No.213 of 2007 with LPA No.177

of 2007. The High Court vide the impugned judgment has

allowed the LPA filed by the State of Punjab and set

aside the judgment of learned Single Judge and

dismissed the writ petitions filed by the appellants

before us.

2. Brief facts of the case necessary to be noted for

deciding these appeals are:

Signature Not Verified Digitally signed by

i.

MEENAKSHI KOHLI Date: 2021.03.26 16:06:59 IST

The appellants are ex-servicemen, who after being Reason:

released from the Army were appointed to Punjab 2

Civil Service (Executive Branch). Rules were

framed namely Demobilized Indian Armed Forces

Personnel (Reservation of Vacancies in the Punjab

Civil Service) (Executive Branch) Rules, 1972,

under which Rules Twenty percent of the vacancies

in the Punjab Civil Service (Executive Branch)

were to be filled in by direct recruitment from

amongst Released Indian Armed Forces Personnel,

who joined military service or were commissioned

on or after the first day of November, 1962. The

vacancies existed under Rules, 1972 for direct

recruitment were from 1979 to 1981.

ii. Another set of Rules were framed namely Punjab

Recruitment of Ex-servicemen Rules, 1982 which

were gazetted on 12.02.1982. Fifteen percent of

the vacancies to be filled by direct appointment

were reserved for being filled in the recruitment

by ex-servicemen. By 1982 Rules, the Rules 1972 as

above mentioned were repealed. An advertisement

was published on 01.05.1982 being advertisement 3

No.2 advertising the post of Punjab Civil Service

(Executive Branch). The examination was held in

the year 1985 and the appellants were appointed

vide order dated 18.03.1986 to Punjab Civil

Service (Executive Branch). The seniority list was

issued in the year 1994 in which seniority of the

appellant was fixed at S.No.25 without granting

him any benefit of earlier services in the Army.

iii. The appellant submitted representation against

wrong fixation of his seniority. The appellant

filed a Writ Petition No.8069 of 2001. In the writ

petition, the appellant claimed that his seniority

be re-fixed by granting military services benefit

in terms of Rule 4 of 1972 Rules. The writ

petition of the appellant was taken along with

other three writ petitions and allowed by learned

Single Judge of the High Court vide its judgment

dated 31.07.2007.

iv. The learned Single Judge held that appellants

shall be deemed to be appointed under 1972 Rules 4

and benefits flowing there from shall be

admissible to the appellant as per 1972 Rules. The

earlier judgment of the High Court dated

08.04.1986 in Writ Petition No.3236 of 1995,

Ishwar Singh and others versus State of Punjab,

was relied by learned Single Judge. Aggrieved

against the judgment of learned Single Judge dated

31.07.2007, State of Punjab filed LPA No.213 of

2007. LPA No.19 of 2008 and LPA No.20 of 2008 were

decided along-with LPA No.213 of 2007, by judgment

and order of the Division Bench dated 28.07.2009.

LPA filed by the State of Punjab was allowed.

Judgment of the learned Single Judge was set aside

and the writ petition filed by the appellant was

dismissed. Aggrieved by the judgment of Division

Bench, these appeals have been filed.

3. We have heard Shri Gurminder Singh, learned senior

counsel appearing for the appellant. Shri Karan

Bharihoke has appeared on behalf of State of Punjab and

Shri Vineet Bhagat has appeared for respondent Nos.1 to 5

4. Learned senior counsel for the appellants contends

that the vacancies against which appellants were

appointed in the year 1986 were vacancies which were

all in existence prior to enforcement of 1982 Rules,

hence, 1972 Rules were applicable and the appellants

were entitled for the benefit of Rule 4, i.e., their

seniority is to be determined giving the benefit of

military services which should count towards fixation

of pay and seniority. It is submitted that learned

Single Judge has rightly allowed the writ petition of

the appellant.

5. It is further submitted that the High Court vide

its judgment dated 08.04.1986 in Writ Petition No.3236

of 1995, Ishwar Singh and others versus State of Punjab

has already held that for determination of vacancies

reserved for Armed Forces Personnel, 1972 Rules shall

be applicable and the reservation of vacancies shall be

Twenty Percent as per 1972 Rules and not Fifteen

Percent as per 1982 Rules. He submits that the judgment

has become final and it is not open to State to contend 6

that 1972 Rules shall not be applicable for determining

the seniority of the appellant.

6. Learned counsel appearing for the State refuting

the submissions of learned counsel for the appellants

contends that in the present case, the advertisement

was issued after enforcement of 1982 Rules and

appellant had applied in pursuance of advertisement

which was issued under 1982 Rules and the examination

and select list were published thereafter appointing

the appellant in the year 1986 only. For determination

of the seniority, the appellant cannot rely on 1972

Rules. The benefit which was available under Rule 4 of

1972 Rules is no longer available under 1982 Rules,

hence, the seniority of ex-servicemen appointed under

1982 Rules have to be determined as per the Rules

applicable to the PCS(Executive), i.e., Punjab Civil

Service (Executive Branch) Rules, 1976.

7. Learned counsel for the respondent Nos.1 to 4

submits that respondent Nos.1 to 4 have already retired

from the service.

7

8. We have considered the submissions of learned

counsel for the parties and have perused the record.

9. The only question which needs to be considered and

answered in this appeal is as to whether the appellant

for determination of his seniority was entitled for the

benefit of Rule 4 of 1972 Rules. Rule 4 of 1972 Rules

provided as follows: -

“

4.(1) The period of military Fixation of service rendered after Pay attaining the minimum age Seniority prescribed for appointment to And the Punjab Civil Service retirem (Executive Branch), by the ent candidates appointed against benefits reserved vacancies under rule 2, shall count towards fixation of pay and seniority in the said Service, subject to the condition that –

(a) The date of appointment in the PCS (Executive Branch) in respect of such candidates as are appointed against the reserved vacancies under rule 2 shall be determined on the assumption that they joined the service under the State Government at the first opportunity 8

they had after joining the military service or training prior to the Commission;

(b) The inter se seniority of the military personnel determined by the Punjab Public Service Commission shall not be disturbed;

(c) a military personnel appointed as a result of an earlier selection shall be senior to a military personnel appointed as a result of subsequent selection irrespective of the period of military service to his credit; and

(d) all candidates appointed against the reserved vacancies under rule 2 shall rank below the candidates appointed by direct recruitment in the year to which the former candidates are allotted.”

10. The 1972 Rules were superseded by another Rules

framed under Proviso to Article 309 read with Article

234 and 318 of the Constitution of India, namely, 9

Punjab (Recruitment of Ex-servicemen) Rules, 1982. Rule

4 of 1982 Rules is to the following effect: -

4. Reservation of Vacancies.(1) Subject to the provision of rule 3, fifteen percent of the vacancies to be filled in by direct appointment in all the State Civil Services and Posts connected with the affairs of the State of Punjab shall be reserved for being filled in by recruitment of Ex-servicemen;

"Provided that where an Ex-serviceman is not available for recruitment against a reserved vacancy, such a vacancy shall be reserved to be filled in by recruitment of the wife or one dependent child of an Ex-

serviceman, who has neither been recruitment against reserved vacancy nor is eligible to be recruited against such vacancy under these rules;

"Provided further that the total number of reserved vacancies including those reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes shall not exceed fifty percent of the posts to be filled in a particular year.”

(2) Where a reserved vacancy remains unfilled for non availability of a person eligible for recruitment under these rules such vacancy may be filled in temporarily from any other source in accordance with the rules regulating the recruitment and the conditions of service of persons appointed to such posts as if the vacancy was not reserved;

10 Provided that the reserved vacancy so filled in shall be carried forward for the subsequent occasions arising during at least two years in each of which such occasion arises for recruitment, where after the vacancy in question shall be treated as un-reserved.”

11. As noted above, Rule 4 of 1972 Rules provided that

period of military service rendered by a candidate

appointed against reserved vacancy shall count towards

fixation of pay and seniority, which provision was no

longer continued in Rule 4 of 1982 Rules, However, the

provision for reservation of vacancies was maintained

to the extent of fifteen percent of the vacancies. Rule

10 of 1982 Rules has provision of Repeal, which is as

follows: -

“10. Repeal – The following rules are hereby repealed-

1.The Punjab Government National Emergency (Concession) Rules, 1965;

2.The Demobilized Armed Forces Personnel (Reservation of Vacancies in the Punjab State Non-Technical Services) Rules, 1968;

3.The Demobilized Indian Armed Forces Personnel (Reservation of Vacancies in 11

the Punjab Civil Services) (Executive Branch) Rules, 1972; and

4.The Released Indian Armed Forces Personnel (Determination of Eligibility for promotion) Rules, 1977.”

12. From the facts brought on the record, it is clear

that the advertisement against which the appellant was

appointed was issued on 01.05.1982, i.e., after the

enforcement of 1982 Rules. The appellant was appointed

in pursuance of the advertisement by appointment order

dated 18.03.1986. Although 1972 Rules have been

repealed but in the 1982 Rules, as per Rule 9(3),

nothing in 1982 rules was to be construed as depriving

any person of any right which had accrued under the

rules in force immediately before the commencement of

the Rules 1982. Before enforcement of 1982 Rules

admittedly, 1972 Rules were enforced.

13. The much reliance has been placed by the learned

counsel for the appellant on earlier judgment of

learned Single Judge in W.P.No.3236 of 1995, Ishwar

Singh and others versus State of Punjab. In the above

case, one of the questions was as to whether for the 12

vacancies which were advertised under 1982 Rules, the

reservation for the Armed Forces Personnel shall be

twenty percent or fifteen percent and whether the

benefit of ex-servicemen as contained in 1982 Rules

shall be applicable with respect to vacancies which

arose prior to enforcement of 1982 Rules. In paragraph

50 of the judgment, following was observed: -

“50. Both the aforesaid decisions fully support the petitioners for the contention that the reservation quota in the vacancies, which occurred before 12.02.1982 would be 20 percent for the Ex. Servicemen and from 12.02.1982 it would be 15 percent. The carry forward rule under the 1972 rules as well as the 1982 rules till before amendment of 1984 was far a period of four years and it was amended by the 1984 amendment, which came into effect from 30th April, 1984. Therefore, when the advertisements was made on 01.05.1982 for recruitment, the left over vacancies from 1979 upto 1982 had to be taken into consideration and similarly the vacancies which occurred thereafter would also be taken not of for providing the relevant quota of 10 percent or 15 percent, as the case may be. As noted above, on the basis of the posts would be made available to the category of Ex. Servicemen. The vacancies which occurred on or after 30th April, 1984 would be carried forward on the basis of the 1984 amended rules.

Whereas earlier unfilled vacancies would 13

be carried forwarding under the 1972 and 1982 un amended rules...”

14. The above judgment has attained finality. The

learned Single Judge took the view that since the

vacancies were vacancies from 1979 upto 1982, the

twenty percent reservation as provided under 1972 Rules

shall govern. The judgment of Ishwar Singh, thus, only

had laid down with regard to percentage of reservation

of the vacancies, which was held to be twenty percent

in view of the vacancies occurring prior to the

enforcement of 1982 Rules.

15. The above proposition cannot be extended to the

determination of the seniority. The question of

determination of seniority comes only after a person

enters into service and becomes a member of service.

Under 1972 Rules, it cannot be held that the fact that

vacancies were in existent prior to enforcement of 1982

Rules, and appointment of a person subsequent to

enforcement of 1982 Rules, he shall be entitled to the

benefit of Rule 4, i.e., to add his military services

for the purposes of his seniority, especially when the 14

benefit which was available for the purposes of

seniority under Rule 4 of 1972 Rules is no longer

continued under 1982 Rules, as noted above.

16. We have noticed that 1982 Rules specifically

repealed the 1972 Rules, thus, the Rule 4 of 1972 Rules

which provided for benefit of seniority of Army service

was no longer entitled to be counted for seniority for

personnel who was appointed after enforcement of 1982

Rules. The judgment of Ishwar Singh of Punjab and

Haryana High Court which only determined the percentage

of reserved vacancies which were to be reserved for

Army personnel could not be held to be relevant

regarding determination of seniority in the facts of

the present case.

17. We may notice the judgment of this Court in R.K.

Barwal and others versus State of Himachal Pradesh and

others, (2017) 16 SCC 803. This Court had occasion to

consider in the above case Demobilized Armed Forces

Personnel (Reservation of Vacancies in the H.P. State

Non-Technical Services) Rules, 1972, where Rule 5 15

provided for counting of approved military service for

purpose of determining seniority on joining civilian

post. The Court held that persons joining Armed Forces

during emergency period vis-à-vis persons joining Armed

Forces during ‘peacetime’, there is a reasonable

classification and benefit which was available for

adding seniority to persons joining Armed Forces during

emergency cannot be extended to persons joining Armed

Forces during peacetime.

18. This Court held that normal rule of fixing of

seniority is with reference to the date of entry into

the service and there has to be very weighty reason for

departure from this rule. Following observations were

made in paragraph 27: -

“27... After all, if the benefit of armed force services rendered is extended to each and every ex-serviceman for the purpose of seniority, it may result in far reaching implications. Examples in this behalf are given by the private respondents, as noted above. This Court cannot shy away from the normal rule of fixing the seniority, as enunciated in the cases of Direct Recruitment Class II Engineering Officer’s Association as well as Aghore Nath Dey, i.e. the seniority of an officer in service is determined with 16

reference to the date of his entry in the service, which is consistent with the requirement of Articles 14 and 16 of the Constitution. There have to be very weighty reasons for departure from this rule. Otherwise, it may disturb the equilibrium by making many direct recruits junior to such ex-servicemen even when such direct recruits joined the services in civil posts much earlier than the ex- servicemen. Thus, an exceptional category carved out for giving such a benefit only to those who were commissioned in Armed Forces during war time cannot be extended to each and every ex-serviceman merely because he has served in Armed Forces.”

19. Under 1982 Rules, there is no indication that the

benefit which was available to Armed Forces Personnel

under Rule 4 of 1972 Rules are continued or any right

has been accrued on the appellant under 1972 Rules

which he is entitled to avail regarding seniority.

20. Learned Single Judge in its judgment dated

31.07.2007 has heavily relied on Ishwar Singh’s case

holding that with regard to reservation of vacancies,

i.e., 1972 Rules have been made applicable, the 1972

Rules also need to be applied for determination of

seniority. The percentage of vacancies which are 17

reserved for Armed Forces Personnel were held to be

calculated as per 1972 Rules since the vacancies have

occurred prior to 1982 Rules. The above judgment of

learned Single Judge in Ishwar Singh cannot be relied

for determination of seniority which is entirely a

different concept and determination of seniority is

governed by seniority rules enforced at the time of

appointment of the personnel. The view of learned

Single Judge that the appellant shall be deemed to be

appointed under 1972 Rules cannot be approved.

21. The Division Bench has rightly taken the view that

saving clause under Rule 9(3) does not extend any

benefit to the appellant since there is nothing to show

that any right of weightage for army services for

seniority has already accrued before he joined

services. Saving clause in Rule 9(3) cannot be availed

by the appellant. We fully endorse the above view of

the Division Bench taken in the impugned order.

22. Another judgment relied by the appellant is the

judgment of Punjab and Haryana High Court in State of 18

Punjab and other versus Dr. Balbir Bharadwaj, LPA

No.168 of 2004, decided on 29.01.2007 has rightly been

distinguished by the Division Bench in the impugned

judgment.

23. We, thus, hold that the appellant was not entitled

to claim benefit of military service for purpose of

seniority for appointment to Punjab Civil

Service(Executive Branch) since the benefit of Rule

4(1) of 1972 Rules was not continued in 1982 Rules.

His seniority was to be governed by statutory rules

applicable after the enforcement of 1982 Rules.

24. We do not find any error in the judgment of the

Division Bench of the High Court. The appeals are

dismissed.

......................J. ( ASHOK BHUSHAN )

......................J. ( S. ABDUL NAZEER )

......................J. ( HEMANT GUPTA ) New Delhi, March 26, 2021.