# 9 S.C.R. 671 R. K. BARWALAND OTHERS v. STATE OF HIMACHAL .PRADESH AND OTHERS

- **Citation:** [2017] 9 S.C.R. 671
- **Court:** Supreme Court of India
- **Decided:** 2017-08-25
- **Case number:** Civil Appeal No. 11060of2017
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-671-r-k-barwaland-others-v-state-of-himachal-pradesh-and-others-32506
- **Pages:** 26

## Headnote

(2017] 9 S.C.R. 671
R. K. BARWALAND OTHERS
v.
STATE OF HIMACHAL .PRADESH AND OTHERS
(Civil Appeal No. 11060of2017)
AUGUST 25, 2017
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.[
A
B
Armed forces -,- Demobilized Armed Forces Personnel C
(ReservatiOn of Vacancies in the Himachal Pradesh State NonTechnical Services) Rules, 1972 - 1:5(1) providing benefit of past
·service rendered in armed forces to ex-servicemen for the purpose
of fixation of seniority and pay in civil employment - Challenge to
- If such a benefit of counting past service rendered in the armed
forces was admissible only to those personnel who joined the jorces D
during the period of Emergency and not to ex-servicemen who had
joined the armed forces at the time of peace - Held: Rules giving
benefit of service in armed forces to those ex-servicemen who joined
during Emergency are pe~fectlyjustified - Call of service to nation
during war period is on a totally different jooting than joining army
when the country is not facing any such foreign aggression - Persons
joining armed forces at that time, sacrificing their career, to be treated
E
as a separate class by extending tl1em the benefit in the matter o/
seniority as. well -
However, those who joined the armed forces
during peace times, they do so in look out of a career and joined
such services of their own volition - They join the armed forces as
a profession like any other - Thus, the two categories of exservicemen form two separate classes and are not equal to each
other - Service law - Reservation.
F
Service law - Armed forces - Reservation - Benefit of past
service rendered in armed forces to ex-servicemen - Held: There
G
exists an intelligible criterion for providing quota to ex-servicemen
- The object is to rehabilitate the ex-servicemen which can· be
achieved by providing reservations to them - Rules reserving a
particular quota, within reasonable limits does not ojfend the
provisions of Art.14 - Constitution of India -Art; 14.
H
671
672
SUPREME COURT REPORTS
[2017) 9 S.C.R.
A
Service law - Seniority - Normal rnle of - Depprture fi·om -:
B
Held:' Seniority of an employee in service is to be determined with
reference to the date of his entry in the service, which is consistent
with the requiremer1t of Arts. 14 and 16 - There have to be very
weighty reasons for departure fimn this normal rule affixing the
seniority - Constiiution of India - Arts. 14, 16.
..
Armed forces - Demobilized Armed Forces Personnel
(Reservation of Vacancies in the Himachal Pradesh State NonTechnical Services) Rules, 1972 - Respondent, an ex~service man
appointed as peon against unreserved posi, denied benefit available
c to the ex-servicemen under the 1972 Rules - Respondent approached
Tribunal by filing 0.A. which was allowed - Writ petition by State,
dismissed by High Court - On appeal, held: The administrative
instructions issued by Government stated that when a released Army
Personnel has been appointed against the general un-reserved
vacancy in the first instance, he should be given an option at the
D time of first appointment to accept a reserved vacancy, even if it
occurs subsequent to his appointment '-- However, such an option
·was never provided to the respondent - Respondent cannot be .made
to suffer due to· reminiscence on part of the State Government - No'
error found in ·the judgment of High Court.
E
Dismissing the appeals, the Court
HELD: Civil Appeal Nos. 11060, 11061 and 11062 of 2017
1.1 There exists an intelligible criterion for providing quota
f
to ex-servicemen. The object is to rehabilitate the ex-servicemen
which can be achieved by providing reser.vations to them.
Therefore, insofar as provision made in the Rules reserving a
particular quota, within reasonable limits is concerned that is
permitted and does not offend the provisions of Article 14 of the
Constitution. There is an intelligible differentia having nexus with
G the objective sought to be achieved. Likewise, provision in the
Rules for protecting the. pay is also

## Text

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(2017] 9 S.C.R. 671
R. K. BARWALAND OTHERS
v.
STATE OF HIMACHAL .PRADESH AND OTHERS
(Civil Appeal No. 11060of2017)
AUGUST 25, 2017
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.[
A
B
Armed forces -,- Demobilized Armed Forces Personnel C
(ReservatiOn of Vacancies in the Himachal Pradesh State NonTechnical Services) Rules, 1972 - 1:5(1) providing benefit of past
·service rendered in armed forces to ex-servicemen for the purpose
of fixation of seniority and pay in civil employment - Challenge to
- If such a benefit of counting past service rendered in the armed
forces was admissible only to those personnel who joined the jorces D
during the period of Emergency and not to ex-servicemen who had
joined the armed forces at the time of peace - Held: Rules giving
benefit of service in armed forces to those ex-servicemen who joined
during Emergency are pe~fectlyjustified - Call of service to nation
during war period is on a totally different jooting than joining army
when the country is not facing any such foreign aggression - Persons
joining armed forces at that time, sacrificing their career, to be treated
E
as a separate class by extending tl1em the benefit in the matter o/
seniority as. well -
However, those who joined the armed forces
during peace times, they do so in look out of a career and joined
such services of their own volition - They join the armed forces as
a profession like any other - Thus, the two categories of exservicemen form two separate classes and are not equal to each
other - Service law - Reservation.
F
Service law - Armed forces - Reservation - Benefit of past
service rendered in armed forces to ex-servicemen - Held: There
G
exists an intelligible criterion for providing quota to ex-servicemen
- The object is to rehabilitate the ex-servicemen which can· be
achieved by providing reservations to them - Rules reserving a
particular quota, within reasonable limits does not ojfend the
provisions of Art.14 - Constitution of India -Art; 14.
H
671
672
SUPREME COURT REPORTS
[2017) 9 S.C.R.
A
Service law - Seniority - Normal rnle of - Depprture fi·om -:
B
Held:' Seniority of an employee in service is to be determined with
reference to the date of his entry in the service, which is consistent
with the requiremer1t of Arts. 14 and 16 - There have to be very
weighty reasons for departure fimn this normal rule affixing the
seniority - Constiiution of India - Arts. 14, 16.
..
Armed forces - Demobilized Armed Forces Personnel
(Reservation of Vacancies in the Himachal Pradesh State NonTechnical Services) Rules, 1972 - Respondent, an ex~service man
appointed as peon against unreserved posi, denied benefit available
c to the ex-servicemen under the 1972 Rules - Respondent approached
Tribunal by filing 0.A. which was allowed - Writ petition by State,
dismissed by High Court - On appeal, held: The administrative
instructions issued by Government stated that when a released Army
Personnel has been appointed against the general un-reserved
vacancy in the first instance, he should be given an option at the
D time of first appointment to accept a reserved vacancy, even if it
occurs subsequent to his appointment '-- However, such an option
·was never provided to the respondent - Respondent cannot be .made
to suffer due to· reminiscence on part of the State Government - No'
error found in ·the judgment of High Court.
E
Dismissing the appeals, the Court
HELD: Civil Appeal Nos. 11060, 11061 and 11062 of 2017
1.1 There exists an intelligible criterion for providing quota
f
to ex-servicemen. The object is to rehabilitate the ex-servicemen
which can be achieved by providing reser.vations to them.
Therefore, insofar as provision made in the Rules reserving a
particular quota, within reasonable limits is concerned that is
permitted and does not offend the provisions of Article 14 of the
Constitution. There is an intelligible differentia having nexus with
G the objective sought to be achieved. Likewise, provision in the
Rules for protecting the. pay is also held to be permissible. [Para
13) [686-F-G)
H
Ram Janam Singh v. State of Uttar Pradesh and another
(1994) 2 SCC 622 : [1994) 1 SCR 316 ; Chittranjan
R. K. BARWAL AND OTHERS v. STATE OF HJMACHAL
673
PRADESH AND OTHERS
· Singh Chima and Another v. State of Punjab and Others
A
.(1997) 11 SCC 447 : [1997] 1 SCR 1010 ; Narendra
Nath Pandey and Other vs. State of U.P. and others
. AIR (1988) SC 1648 : (1988] 1 Suppl. SCR 574 -
relied on ..
1.2 The provision in the Rules giving benefit of service in
B
armed forces to those ex-servicemen who joined during
Emergency, is perfectly justified. It is based on the ratiol)ale ·
that sacrifice of such personnel in armed forces who joined the
service in war times is much more than those persons who joined
the armed forces during· peace period. Reasoning proceeds on c /.
the basis that when a state of Emergency is declared and the
nation is at war or facing the threat of aggression some young
persons out of a feeling of patriotism jo~n the armed forces
knowing fully well that they are putting their liv~s at stake. They
give up their chance to join civil service and live a comfortable
life in the main cities of the country. The grant of the b'enefit of D
serVice rendered by these ex-servicemen while in armed forces,
.
is held to be valid when they were recruited during Emergency. . ·
However, such a benefit sflould not be availab.le to those .who
'join the armed force.S at a petfod when the co~ntry was not in
conflict with any other country/enemy country. The denial of E
benefit to such persons is on the premise tliat the.se persons
stan.d on a totally different footing from those who join service ·
during emergency period. These .persons weigh all the pros and
cons and after taking into consideration all factors· come to the
conclusion that they have a good future in the armed forces. They
join the armed forces as a profession like any other. (Para 141
F
[687-B-E]
1.3 The two categories of ex-servicemen form two separate
classes and are not equal to each other. Thus, latter category is
not entitled to counting of their service rendered in armed forces
G
for the purpose of their seniority on joining the civilian post.
Following this dicta laid down in the aforesaid judgments, the
High Court has read down the rule in-question by limiting the
benefit of seniority only to that class of ex-servicemen which
joined armed forces during the period of Emergency. (Para 151
[687-.F-GJ
H
674
SUPREM}3 COURT REPORTS
[2017] 9 S.C.R.
A
2. The appellants are right in pointing out that those who
are joining military service even in 'peace times' are faced with
difficult situations of proxy war and have also to deal with
insurgency and terrorism. It is also a matter of common
knowledge that these military personnel are risking their llfe while
B dealing with the aforesaid difficult situations and, in fact, the·
casualties and fatalities of the soldiers are-on the rise. When
they leave the military service, as an ex-serviceman, they not
only get the benefit of appointment to the civilian post against
the quo'ta earmarked for them, they are also getting the benefit
of counting of military service when their pay is fixed on their
C appointment to the civilian post. However, benefit of counting of
military service rendered by these ex-servicemen for the purpose
of seniority cannot be extended to them. Such a benefit is
restricted only to those who joined armed forces during emergency
due to foreign aggression. The call of service to n~tion during
D war period is on a totally different footing than joining army when
the country is not facing any such foreign aggression. The Court
pointed out that persons who were commissioned in armed forces
when the nation was faced with foreign aggression and the cry of
the time was that persons should join armed forces to defend the
integrity and sovereignty of the nation. Many persons in such·
E situations are not inclined to join the armed forces and only those
with the feeling for the honour of the nation rise to such occasions.
For this reason, such persons joining armed forces at that time,
sacrificing their career, had to be treated as a separate class by
extending them the benefit in the matter of seniority as well.
F However, those who joined the armed forces otherwise, they do
so in, look out of_ a career and joined such services· of their own
volition. They are prepared for the normal risk in service of the
armed-forces. Therefore, benefit of service rendered in armed
forces cannot be extended to such a class for the purposes of
seniority. The circumstances pointed out by appellants are
G nothing but those risks which are very well known and prev;dent.
H
Fact remains that these persons joined the service to make their
career and on their own volition, exercising it as a matter of choice.
Their cases are, therefore, on a different footing altogether. After
all, if the benefit of armed force services rendered is extended to
each and every ex-serviceman for the purpose of seniority, it
R. K. BARWAL AND OTHERS v. STATE OF HIMACHAL
PRADESH AND OTHERS
may result in far reachi11g implications. This Court cannot shy
away from the normal rule of fixing the seniority, i.e. the seniority ·
o.f an officer in service is determined with reference to the date
-675
A
of his entry in the service, which is co_nsistent. with the
requirement" of Articles 14 and 16 of the Constitution. There
have to -be very weighty reasons for departure from this rule. B
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 C
every ex-serviceman merely because he has served in armed
forces. [Para 27) [692-B-H; 693-A-D] · ·
Direct Recruitment Class 11 Engg. Officers Association
& Ors. vs. State of Maharashtra (1990) 2 SCC 715 :
[1990] 2 SCR 900 ; State of West Bengal and Ors. vs.
Aghore Nath DeyArfd Ors. 1993 sec (3) 371 : [1993]
2 SCR 919 - referred to.
3. In the impugned judgement, the High Court has pointed
D
out one more pertinent aspect. It is mentioned that the benefit E
of ir.tst service rendered in armed forces is even given to those
persons who did not even fulfil the minimum educational criteria
for the service ·Which is otherw_ise mandatory. Thus, grant of
benefit of military service even in respect ofthose who join the
armed forces during the emergency, is to be given only from the
date when they attaiited the minimum eligibility criteria prescribed
F
in the Rules for th-e post· to which such persons· are appointed.
[Paras 30, 31) [694-B; 695-CJ
·
Civil Appeal No. 657 of 2016
4. A perusal of the impugned judgment of the High Court G
would reveal that the administrative instructions issued by tlie
Government stated that when a released Army Personnel has
been appointed against the general un-reserved. vacancy in the
· first instance, he should be given an option at the time of first
'-
H
j
' '
,,
J
' f.
; I.
676
SUPREME COURT REPORTS
(2017] 9 S.C.R.
A appointment to accept a reserved vacancy, even if it occurs
subsequent to his appointment. However, such an option was
never provided to the respondent. The vacancy became available
after the appointment of respondent and since the State
Government was required to give option to the respondent at
B the time of initial appoint~ent to be considered against the post
reserved for ex-servicemen, which was not done, therefore,
respondent could not be made to suffer due to reminiscence on .
the part of the State Government. In the aforesaid factual
background, no error is found in the judgment of the High Court.
[Para 351 [696-C; 697-A-E)
c
D
E
F
G
H
Ex-Capt. K. C. Arora and Another v. State of Haryana
and Others (1984) 3 SCC 281 : [1984) 3 SCR 623 ;
State of H.P. v. P.D. Attri (1999) 3 SCC 217: 1199911
SCR 587 - referred to.
Case Law Reference
[1994) 1 SCR 316
relied on
Para9
(1997) 1 SCR 1010 .
. relied .on
Para 11
[1988) 1' Suppt SCR 574
relied on
Para 12
[19841 3 SCR 623
referred to
Para 22
(1993] 2 SCR 919
referred to
Para 27
(19901 2 SCR 900
referred to
Para 27
[1999) 1 SCR 587
referred to
Para 29
CIVIL APPELLATE JURISDICTION: Civil Appeal No.I I 060
of2017.
From the Judgment and Order dated 29.12.2008 of the High Court
ofHimachal Pradesh at Shimla in CWP No.488 of2001
WITH
Civil Appeal No.657 of2016, Civil Appeal Nos. I I 061 and 11062
of2017 and S.L.P. (C) No.22416 of2017.
R. K. BARWALAND OTHERS v. STATE OF HIMACHAL
677
· PRADESH AND OTHERS
Paramjeet Singh Patwalia, Sr. Adv., Bhaskar Y. Kulkarni, Vikas
A
-viahajan, Vinod Shamm, Varinder Kumar Sharma, Rajeev Shanna,
'/aresh K. Sharma, Rajeev Kumar Bansal, Akshay K. Ghai, Maneesh
::::ilathak, Brahma Prakash, Balraj Dewan, Naresh K .. Sharma,
:::::Hi minder. Lal, Ms.Rajni Ohri Lal, Anip Sachthey, Aditya Dhawan, ·
=Ms.Kiran Dhawan, Ms. Riya Sachthey, C.S. Ashri, Advs. for the
B
-appearing parties.
· · · ' · · · ·
·
· · .· ·
The Judgment of the Court was deliveted by
.
.
A.k. SIKRI, J. 1. Leave granted in Special Leave Petition
-(Civil) No~. 8710 of2009, 14361 of2009 and 19750 of201 l.
c
2. In all these appeals, issue relates to the validity of'Demobilized
~rmed Forces Personne_l (Reservation of Vacancies in the.Himl!chal
Pradesh State Non-Technical Services) Rules, '1972 (hereinafte~ referred
to as the '1972 Rules'). These 1972.Rules provide for reservation to the
Released Indian Armed Forces Personnel in non-technical services in D
the State of Himachal Pradesh. Provisfon is also made in the
1972 Rules for conferring the benefit of counting approved military service
of suph Rel~ase.d Armed F 6rces Personnel for the purpose of fixation of
thei~ seniority and pay in civ{l employmeni. It isthe valiclity of these
Rul_es \yhich is the subject matter in most of these appeals: However,
for. the sake of convenience and bettei· und~r~rl!ndirig," we
would take note of the events from Civil Appeal N~.q0.60 of 2017@
SLP (C) No. 8710 of2009.
,·
E
3. The appellants in these appeals are Released Armed Forces
Personnel. They were initially taken iri tlfeArmy where they servedfor
F
few years and after serving for certain years, they were released
from"the Army. Still young and far away from the age of retirement
that is prescribed for civilian post, they applied for the post of
Assistant District Attorney in the State ofHimachal Pradesh (hereinafter
referred to as the 'State') and were successful in getting appointment
as Assistant District Attorneys witli the Department of Prosecution of G
the State. In terms of I 972 Rules, they were. accorded the benefit of
their approved military ·service for the purposes of fixation of their
pay and seniority as Assistant District Attorneys. Details of appointments
of these appellants are as under:
H
' '.
678
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
Appellant's
Date of
Date of
Date of joining
Date of
Deemed date
Name
Joining
release from
civil
acquiring
of
Amted
Armed
employmmt
essential
appointment
Forces and
forces and
(proscrution
qualification
rank
rank
dcpartmmt)
B
R.K. Batwal
24.04.1981
10.09.1997
28.12.2001
1991(LLB)+2
20.03.1989
(Appellant
(As Airman)
(As Sergeant) (Appointed as
years
(By giving 12
No. I)
ADNAPP)
experience
years
antedated
seniority)
D.S. Parmar
21.06.1986
21.072001
19.10.2006
1991 (LLB) +2
09.09.1991
·C
(Appellant
(As Havaldar
(As Nail>-
(Appointed as
years
(By giving 15
No. 2)
Clerk)
Subedar)
ADA/APP)
experience
years
antedated
seniority)
S.S. Pathania
16.01.1980
28.02.1999
18.11.2003
1997 (LLB) + 2 29.08.1986
(Appellant
(As Seaman)
(As Master
(Appointed as
years
(By giving 17
No. 3)
At Anns)
ADNAPP)
experience
years
D
seniority)
N.S. Verma
08.01.1974
31.01.1989
20.09.1996
1984 (LLB) + 2
20.03.1989
(Appellant
(As Seaman)
(As Pcrty
(Appointed as
years
(By giving 12
No.4)
Officer)
ADNAPPJ
experience
years
seniority)
E
As is clear from the aforesaid chart, though these appellap.ts joined
as Assistant District Attorneys with the State on later dates, they were
given the seniority from the back/earlier date with the application of
1972 Rules by counting their approved military service. Their pay was
also fixed accordingly.
F
4. At this stage, we may reproduce the relevant provisions of
1972 Rules. Primarily, we are concerned with Rules 3(1) and 5 (1).
The Preamble as well as the aforesaid Rules ofthe 1972 Rules read as
under:
"Preamble
G
No. 11-76/71-GA-A-ln exercise of the powers conferred by
the proviso to Article 309 of th~ Constitution ofh1dia, and all other
powers enabling him in this behalf, the Governor, Himachal
Pradesh, hereby makes the following Rules regulating the
reservation of vacancies in Himachal State, Non-Technical
· Services, for the Demobilised Emergency Commission Officers,
H
.
. .. -.... , -~·"- ....
.
.
.
R. K. BARWAL AND OTHERS v. STATE OF HIMACHAL :
.,
'
-
'
.. ,
. '
.'
679
PRADESH AND. OTHERS [A.K. SIKRI, J.]. ..
.
.
. .
·.
. "
Short Service Regular Commission Officers; Junior Commissioned A
Officers,· Non-Commissioned Officers and other· Ranks of the ·
Armed Forces of the Indian Union (hereinafter called the Released
Indian Arnled Forces Personnel), and the recruitment of such
officers/personnel on such vacancies, namely:
3. Reservation of vacancies: .
(1) Fifteen percent vacancies ir; i·espect of all posts, viz;,'Class I; II,
Ill andIV to be filled up through direct recruitment shall be reserved ·
for being filled up by the released Indian Armed Forces Personnel
or ex-servicemen who joined service or were commissioned on
B
. ~, .
. or after the l" day of November, 1962 and are released any time c
thereafter .... "
·
5: Seniority and Pay:
(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 rest:rVed D
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 emploY!llent only and it shall not
be admissible in subsequent appointment.s of ex-servicemen who
,are already employed under State/Central Govt. against reserved
E
posts)."
I"'
jf:
5 .. It may also be mentioned her,e that the State Government has
,f!amed similar Rules conferring this kind of benefit on the Released
Armed Forces Personnel in Administrative Services as well.· These
Rules were framed in the year 1974 and are called the 'Demobilised
F
Armed Forces Personnel (Reservation of Vac.ancies iri the Himachal
Pradesh Administrative· Services) .Rules, 1974 (hereinafter referred to
as the '1974 Rules'). Though, the 1974 Rules are not the subject.matter
of these appeals, purpose for referring to these Rules is that the validity
of these Rules was also challenged and the matter had come up to this
Court, To that extent, reference to these Rules becomes relevant and
G
the outcome of the proceedings would be mentioned at the appropriate
stage.
"' · 6. When the seniority of the appellants was fixed in the aforesaid
manner as gi~en in the table above, the result was that they were given
H
680
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A seniority over and above some of those appointees who came in the
general category and even when they were appointed as Assistant DistrictAttomeys, pr.ior in point of time. These persons, naturally, felt aggrieved
by this favourable treatment accorded to the appellants, Respondent
Nos. 3 to 5 herein as well as two other Assistant District Aitomeys,
B thus, approached the State Administrative Tribunal by filing Original
Application (OA), inter alia, challenging the vires of Rule 5(1) of 1972
Rules insofar as it conferred benefit of counting of approved military
service upon the appellants towards fixation of their seniority. They
prayed for striking down Rule 5(1) to the extent it confers seniority upon
such Released Armed Forces Personnel with a specific prayer that
C deemed dates of appointment assigned to the appellants be declared as
illegal. They also prayed for issuance of directions to the effect that
these appellants be given seniority from the actual date of appointment
as Assistant District Attorneys or alternatively from the dates they
acq\lired eligibility for the post, viz., degree of LLB. Here, we may
mention that these appellants had obtained LL.B. degree later on, but
D they were law graduates as on the date when they applied for the post
of District Attorney and were eligible to be considered for the said post. ·
However, t]).e grievance of Respondent Nos. 3-5 was that seniority is
given to them, by counting military service, from the dates when they
\vere not law graduates and thus not even eligible for the post, for want
E ofrequisite qualifications, on that ?ate.
F
7. The State Administrative Tribunal, after hearing the parties,
dismissed the OA filed by the Respondent Nos. 3-5 vide judgement dated
January 12, 2001, thereby upholding the validity of Rule 5(1) of 1972
Rules.
8. These respondents challenged. the decision of the State
Administrative Tribunal by filing writ petitions in the High Court. The
High Court has, vide impugned judgment, partially struck down Rule
. 5(1) of the 1972 Rules. Relying upon the decision of this Court in Ram
Janam Singh vs. State of Uttar Pradesh and anotlter1, the High Court
G has held that such a benefit of counting past service rendered in the
armed forces would be admissible only to those personnel who had joined
the forces during the period of Emergency and would be inadmissible in
case of ex-servicemen who had joined the armed forces. at the time of
peace.
H
'(1994) 2 sec 622
R. K. BARWALAND OTHERS v. STATE OF HIMACHAL
681
PRADESH AND OTHERS [A.K. SIKRI, J.]
9. The result of the aforesaid judgment of the High Court is that A
the appellants stand deprived of the period of service rendered b)' them
in armed forces for the purposes of seniority as they had not joined.the
said service during the period of emergency. Since,_ the High Court has
rested its decision by relying upon Ram Janam Sing/i1. case and fe~
oth~r'cases to th~ same effect, before proceeding fu~her we would like \jl'
to discuss these Judgments and law laid down there!n. ··
·
.
_ 10. Ram Janam Singlt1 was a case wherein the judgment of the
Allahabad High Court was called into question. It pertained to U:P.
Non-Technical (Classen) Services (Reservation of Vacancies for
Demobilised Officers) Rules, 1973. Under these Rules, benefit was
confined to those ex-servicemen who had joined service in the armed· C
forces during the period when the country was under the state of
emergency. One person who had joined serviCe in the armed forces
during the period when the Emergency was not in operation challenged
the non-grant of the benefit of Rules to him on the ground that there. was
no reasonable or rational basis for excluding the period fiomJanuary f 0,
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1969 when the Emergency was lifted till December 03, 1971 when the
same was re~imposed. The writ petition was allowed by the Allahab.ad
High Court. Thereafter, Ram Janarn Singh filed an appeal before the
Apex Court which was allowed. The Apex Court held as follows:-
,;l 0. From time to time controversyregardi~g inter se.seni6~·ity is · E
raised between persons recruited from, different sources .to the
same service. '1n past, notional seniority used.to be given to one
group of officers, purporting to mitigate their hardship or to rectify
any alleged wrong done to them in the process ofrecruitment or
promotion. Ultimately, it was realised that ifliberty is given to fix
seniority of an officer or group of officers belonging to a particular
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category with reference to a notional date, that will lead to great '·
uncertainty in public service. The date of entry into a particular
service was considered to be the most safe rule to follow while
determining t~e inter se (sic) one officer or the otl}er Or betWeen ·
(n~e group of officers and the other recruited from the differerit
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sources. After referring to different judgments of this Court, a
Constitution Bench in the case of Direct Recruitment Class Il
Engineering Officer.'s Association v. State of Maharashtra
[(1980) 2 SCC 715]: (AIR 1990 ·sc 1607), came to the same
.
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conclusion. The same has been reiterated in the case of State of
WestBengalv.Aghore Nath Dev [(1993) 3 SCC 371]. It is now
almost settled that seniority of an officer in service is detennined
-with reference to the date of his entry in the service, which will
be consistent with the requirement of Articles 14 and 16 of the
Constitution. Of course, if the circumstances so require a group
of persons can be treated a class separate frQm the rest, for any
preferential or beneficial treatment while fixing their seniority. But,
whether such, group of persons belong to a special class for any
special treatment, in matters of seniority has to be decided on
. objective consideration and on taking into account relevant factors
· which can stand the test of Articles 14 and 16 of the Constitution.
Normally, such classification should be by statutory rule or rules
framed under Article 209 of the Constitution. The far-reaching
· implication of such Rules need not be impressed, because they
purport to affect the seniority of persons, who are already in
service. For promotional posts, generally the rule regarding merit
and ability or seniority-cum-merit is flawed in most of the services.
As such the seniority of an employee in the: later case is material
, and relevant to further his career, which can be affected by factors,
which can be held to be reasonable and rational.
11. It appears that the framers of the Rules 1973 and 1980, while
treating the persons, who had been commissioned on or after
November 1, 1962 but before January 10, 1968 and again on or
after December 03, 1971, took into account the circumstances
and the background in which such persons were commissioned in
Armed Forces, i.e., when the nation was faced with foreign
aggressions and the cry of the time was that persons should join
Armed Forces to defend the integrity and sovereignty of the nation.
It is well-known that many persons in such situation are not inclined
to join Armed Forces and only those with feeling for the honour of
the nation rise to such occasions. In this background, if such
persons have been treated as a separate class for extending any
benefit in the matter of seniority, none can make any grievance
· and their classification can be upheld even in the light of Articles
14 and 16 of the Constitution .
. 12. But, we fail to understand as to how persons, who joined
after the emergency was over, i.e., after January 10, 1968 and
R. K. BARWAL AND OTHERS v. STATE OF HIMACHAL
683
PRADESH AND OTHERS [A.K. SIKRI, J.J
before December 03, 1971, when another emergency was imposed A
____..;,--.,
·in view of the foreign aggression can be treated at par or on the
same level. It needs to be pointed out that such persons were in
look out of a career and joined the Armed Forces of their own
volition. It can be presumed that they were prepared for the
normal risk in the service of the Armed Forces. Those who joined · B
Armed Forces after November 1, 1962 or December 3, 1971, not
only joined Armed forces but joined a war which was being fought
by the nation. If the benefits extended to such perso~s; who
were commissioned during national emergencies are extended
even to the members of the Armed Forces who joined during
normal times, members of the Civil services can make legitimate C
grievance that their seniority is being affected by persons recrnited
fo the service after they had entered in the said service without
there being any rational· basis for the same.
13.
xxx
xxx
xxx
14. Can it be said that the persons who·hadjoined army after the D
declaration of emergency due to foreign aggression and those
who joined after the war came to an· end stand on the same footing?
Those who joined Army after revocation of emergency joined
army as a career. It is well known that many persons, who joined
army service during the foreign aggression co.uld have opted for
other career or service. But the nation it~elf being under peril,
impelled by the spirit to serve the nation, they opted for joining
Army where then risk was writ large. No one can dispute that·
such persons formed a class by themselves and by Rules aforesaid
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an attempt has been made to compensate those who returned
from war if they compete in different service. According to us.
the plea that even persons. who joined army service after cessaion
of foreign aggression and revocation of emergency, have to be
treated like persons, who have joined army service during
emergency, due to foreign aggression is a futile plea and should
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not have been accepted by the High Court. It need not be
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impressed that whenever any particular period spent in any other
· s~rvice by a person is added to the service to which such person
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· joins later. it is bound to affect the seniority of person who have
already entered in the service. As such any period of earlier
service should be taken into account for determination of seniority
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A
in the later service only for some very compelling reasons, which
stand the test of reasonableness and on examination can be held
to be free from arbitrariness."
(Emphasis supplied)
11. This dictum was reiterated in Chittranjan Singh Chima and
B Another v. State off unjab and Others2 wherein this Court has held
that the person appointed to defence services under the normal
recruitment, before the proclamation of (External Emergency on
26.10.1962, were not covered under the expression "military service"
as defined in the Punjab Government National Emergency (Concession)
c Rules, 1965. Hence, the appellants who were enrolled in Indian Air
Force on December 07, 1957 and September 03, 1959 respectively and
were released in 1974 on completion of 15 years of service, held not
entitled to the benefit of this service for seniority and other consequential
benefits because they were not appointed during emergency but in the
regular process.
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12. Another case taken note of by the High Court is Nare11dra
Nath Pandey and Other vs. State of U.P. and others3• In this case,
Rule 6 of the aforesaid U.P. Rules of 1973 was being dealt with, the
relevant portion whereof is as under:
"R. 6 Seniority and pay-
( l) Seniority and pay of candidates appointed against the vacancies
reserved under sub-rule (1) of Rule 3, shall be determined on the
assumption that they entered the service concerned at their second
opportunity, of competing for recruitment, and they shall be
assigned the same year of allotment as successful candidates of
the relevant competitive examination."
The issue before the Court was as to whether such ex-service
personnel could be given the seniority even when they failed in
first attempt in securing civil employment and further whether the
benefit of service rendered in armed forces could be given even
if there was a significant time lag between release of such
personnel by the army and securing the civil employment.
Interpreting the aforesaid Rule, these questions were answered
in the following manner:
2 (1997) 11sec447
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3 AIR (1988) SC 1648
·,
R. K. BARWAL AND OTHERS v. STATE OF HIMACHAL
685
PRADESH AND OTHERS [AK. SIKRI, J.]
"13. It is true that Rule 6 does not provide forthe period between A
the demobilisation and recruitment of a war service candidate in
the civil service. Nor does it forbid consideration of such period. ·'
It cannot, however, be denied that after the discharge from war
se1vice, there will be some lapse of time for the recrnitment of a
candidate in the Pi:_ovincial Civil Service .. There is a question of
competing in the examination. Rule 6 does not provide for any
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gap to be taken into consideration. yet it is apparent that some
reasonable period has to be allowed to a candidate so as to enable
him to avail himself--of the opportunity of appearing at the
competitive examination for his recrnitment in the Provincial Civil
Service. It cannot be gain said that to compete in the examination,
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a candidate has to make. preparation for that competitive
examinations are generally difficult and, in our opinion, at least
two years' time should be allowed to a candidate, after hi_s
discharge, for his preparation for the competitive examination and ·
that will arise in the next year, that is, in the third year of his
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discharge from the armed forces. In other words. he should be
all owed three years for competing in the relevant examination for
recruitment in tfie civil service.
14. Even after he becomes successful, he is not recruited
immediately. There is question of availability of vacancies.and
posting. It is common knowledge that some time is taken for
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posting. On a proper construction of Rule 6. the period spent by a
candidate for competition in the examination which. in our opinion. ·
will not be more than three years. and the period of time taken for
his recruitment or posting will also be taken into consideration for
the pw;pose of computing the senioritv of a war service candidate.
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Thus, if a candidate is discharged in the year 1968, he should be
. given three years' time to avail himself of the opportunity of
competing in the examination. Suppose, he is successful in the
examination in 1971 and posted in 1973. In view of Rule 6, he
would be deemed to have entered service at the second opportunity
of competing for recrnitment and the entire period from the date G
of assumed entry in the service up to his recruitment in 1973 shall
be taken into account for the purpose of computing seniority and
pay. If, however, a candidate does not avail himself of the
opportunity within three years ofhis discharge from war se1vice
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or takes the examination but not avail himself of the opportunity
within three years·ofhis discharge from war service or takes the
examination but becomes unsuccessful, the period between his
discharge and subsequent recruitment will not be taken into account
for the purpose of computing the seniority. Rule 6 should be given
a reasonable interpretation. We do not find any reason to interpret
Rule 6 in a way which will be doing injustice to the appellants who
have been recruited under the Service Rules after competing
successfully in the examination.
15. We agree with the High Court that the t973 Rules as also the
1980 Rules are quite legal and valid. We are, however, of the
view that under Rule 6 of the 1973 Rules or Rule 5 of the 1980
Rules only a reasonable period, namely, the period of three years,
required for taking the examination and the time taken for
recruitment or posting, as discussed above, along with the period
of war service, but no other period, will be taken into consideration
for the purpose of computing the seniority and pay. The impugned
seniority list prepared in 197 6 and also that prepared subsequently
in the year 1980 cannot be sustained, as they have been prepared
by taking into consideration the eritire period between the discharge
and the recruitment without any reservation for computing the
seniority.
(Emphasis Supplied)"
13. Dicta laid down in the aforesaid judgments of this Court are
apparent and explicit. The Court has held that there exists an intelligible
criterion for providing quota to ex-servicemen. The object is to rehabilitate
F the ex-servicemen which can be achieved by providing reservations to
them. Therefore, insofar as provision made in the Rules reserving a
particular quota, within reasonable limits is concerned that is permitted
and does not offend the provisions of Article 14 of the Constitution.
There is an intelligible differentia having nexus with the objective sought
to be achieved. Likewise, provision in the Rules for protecting the pay is
G also held to be permissible.
14. The bone of contention, however, is in respect of grant of
benefit of seniority to these ex-servicemen on joining civilian service, by
counting the service rendered in the armed forces for the purpose of
seniority in the department which these ex-servicemen join. Here there
H is a conflict of interest that arises between those civilians who join a
LL..
R. K. BARWALAND OTHERS v. STATE OF HIMACHAL
687 .
PRADESH AND OTHERS [A.K. SI.KR!, J.)
particular service earlier than ex-servicemen but are rendered juniors to A
the ex-servicemen joining later for the reason that ex-servicemen are ·
benefited with their past service in the amied forces. As far as this
aspect is concerned, the judgments noted above have held that provision
in the Rules giving benefit of service in armed forces to.those exservicemen who joined during Emergency, are perfectly justifie-d. It is
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based on the rationale that sacrifice of such personnel in armed forces
who joined the service in war times is much more than those persons
who joined the armed forces during peace period: Reasoning proceeds
on the basis that when a state of Emergency is declared and the nation
is at war or facing the threat of aggression some young persons out of a
feeling of patriotism join the armed forces knowing fully well thatthey C
are putting their lives at stake. They give up their chance to join civil
service and live a comfortable life in the main cities of the country.
Drawing this distinction, this Court has granted the benefit of service
rendered by these ex-servicemen while in armed forces, is held to be
valid when they were recruited during Emergency. However, the Court D
has held t)!~t such a benefit should not be available to those who join the
armed forces at a period when the country was not in conflict witli any
other country/enemy country. The denial of benefit to such persons is
on the premise that these persons stand on a totally different footing
from those who join service during emergency period. These persons
weigh all the pros and cons and after taking into consideration all factors
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come to the conclusion that they have a good future in the armed forces.
They join the armed forces as a profession like any other.
15. On this premise, the Court has held that the two categories of
ex-servicemen formed two separate classes and are not equal to each
other. Thus, latter category is not entitled to counting of their service
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rendered in armed forces forthe purpose of their seniority on joining the
civilian post. Following this dicta laid down in the aforesaid judgments,
the High Court has read down the rule in-question by limiting the benefit
of seniority only to that class of ex-servicemen which joined armed forces
·during the period of Emergency.
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16. This positiou is summed up by the High Court in the following
manner:
: "We are oftil:: view that such benefit should have been limited to
those persons who joined during the period of emergency only.
· Otherwise the Rules would become unconstitutional. The Apex H
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Court in a number of cases including those quoted above has
clearly held that efficiency should not suffer on account of
rnservation. Reservation can be held to be reasonable as long as
.efficiency does not suffer. It is also well settled that the seniority
of an officer in service is determin!;!d with reference to the date
of entry in the service. This is consistent with Articles 14 & 16 of
the Constitution. Exceptions can be made only in special
circumstances. However, who are entitled to such benefits has
to be decided objectively.