# STATE OF H.P. & ANR v. IANA DEVI & ORS

- **Citation:** [2009] 4 S.C.R. 482
- **Court:** Supreme Court of India
- **Decided:** 2009-03-17
- **Case number:** Civil Appeal No.1617 of 2009
- **Bench:** R.V. Raveendran, Markandey Kat Ju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-h-p-anr-v-iana-devi-ors-25699
- **Pages:** 9

## Headnote

SERVICE LAW:
H1MACHAL PRADESH Ex-SERVICEMAN (RESERVATION OF VACANCIES
C
IN HIMACHAL PRADESH TECHNICAL SERVICES) RULES, 1985:
Benefit of counting Military Service for purposes of
seniority and pay fixation - Whether could be extended to
those appointed prior to 3. 5. 1983 when the Rules were initially
brought into force by giving option to accept any reserved
D
vacancy subsequent to their appointment - Held: Yes, if they
were appointed to a reserved vacancy created under the 1985
Rules or if appointed to a non-reserved vacancy after
reservation came into effect on 3. 5. 1983 but exercised option
E
F
G
H
to accept a reserved vacancy occurring subsequent to his
vacancy.
In this appeal the question that arose for
consideration was whether the benefits of the Exservicemen (Reservation of Vacancies in the Himachal
Pradesh Technical Services) Rules, 1985 should be
extended to those appoint prior to 3.5.1983 by giving them
an option to accept any reserved vacancy subsequent to
their appointment so as to secure the benefit of counting
their military service for purposes of seniority and pay
fixation.
Allowing the appeal, the Court
HELD: 1. The respondents were appointed against
general category technical posts. When they were
482
:
- --
STATE OF H.P. & ANR. V. ANJANA DEVI & ORS.
483
\.
appointed reservation was available only in respect of A
I
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. sThe benefit of reservation was extended to technical post
~
firstly by an executive order dated 3.5.1983. Subsequently,
the 1985 Rules were 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 c
on which reservation was provided for posts in technical
_,
services by an executive order. Every ex-serviceman who
i
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 D
appointment by a circular dated 23.5.1975. This benefit
was obviously i)ltended 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
E
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 F
discrimination as assumed by the Tribunal and the High
Court. [Para 9) (488-D-H; 489-A-B]
2.1 Discrimination presupposes classification of
~
•
similarly situated persons into different groups without G
any reasonable basis, for extending 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, H
484
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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 nonreserved technical posts on or after 3.5.1983 were given
the option to accept the subsequently arising reserved
8
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 homogeC neous class in

## Text

[2009] 4 S.C.R. 482
A
STATE OF H.P. & ANR.
V.
IANA DEVI & ORS.
Civii Aopeal No.1617 of 20097
MARCH 17, 2009
(R.V. RAVEENDRAN AND MARKANDEY KAT JU, JJ.)
SERVICE LAW:
H1MACHAL PRADESH Ex-SERVICEMAN (RESERVATION OF VACANCIES
C
IN HIMACHAL PRADESH TECHNICAL SERVICES) RULES, 1985:
Benefit of counting Military Service for purposes of
seniority and pay fixation - Whether could be extended to
those appointed prior to 3. 5. 1983 when the Rules were initially
brought into force by giving option to accept any reserved
D
vacancy subsequent to their appointment - Held: Yes, if they
were appointed to a reserved vacancy created under the 1985
Rules or if appointed to a non-reserved vacancy after
reservation came into effect on 3. 5. 1983 but exercised option
E
F
G
H
to accept a reserved vacancy occurring subsequent to his
vacancy.
In this appeal the question that arose for
consideration was whether the benefits of the Exservicemen (Reservation of Vacancies in the Himachal
Pradesh Technical Services) Rules, 1985 should be
extended to those appoint prior to 3.5.1983 by giving them
an option to accept any reserved vacancy subsequent to
their appointment so as to secure the benefit of counting
their military service for purposes of seniority and pay
fixation.
Allowing the appeal, the Court
HELD: 1. The respondents were appointed against
general category technical posts. When they were
482
:
- --
STATE OF H.P. & ANR. V. ANJANA DEVI & ORS.
483
\.
appointed reservation was available only in respect of A
I
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. sThe benefit of reservation was extended to technical post
~
firstly by an executive order dated 3.5.1983. Subsequently,
the 1985 Rules were 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 c
on which reservation was provided for posts in technical
_,
services by an executive order. Every ex-serviceman who
i
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 D
appointment by a circular dated 23.5.1975. This benefit
was obviously i)ltended 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
E
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 F
discrimination as assumed by the Tribunal and the High
Court. [Para 9) (488-D-H; 489-A-B]
2.1 Discrimination presupposes classification of
~
•
similarly situated persons into different groups without G
any reasonable basis, for extending 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, H
484
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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 nonreserved technical posts on or after 3.5.1983 were given
the option to accept the subsequently arising reserved
8
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 homogeC neous class into two groups and subjecting them to different
treatments. That is not the case here.[Para 1 OJ [489-C-F]
2.2 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
0
logical and rational, being the date on which reservation
was made applicable to technical services. Thus exservicemen 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
E vacancy after reservation came into effect, that is on or
after 3.5.1983, but exercised the option to accept a
reserved vacancy occurring subsequent to his vacancy.
[Para 10] [489-F-H; 490-A]
F
3. The orders of the Tribunal and the High Court are
not in accordance with law, and are set aside. [Para 11]
[490-B]
CIVILAPPELLATE JURISDICTION : Civil Appeal No.1617
of 2009
G
From the Judgement and Order dated 02.04.2007 of the
_.
Hon'ble High Court of Himachal Pradesh at Shimla in C.W.P.
No. 972 of 2002.
Naresh K. Sharma, for the Appellants.
H
E.C. Agrawala, for the Respondents.
STATE OF H.P. & ANR. V. ANJANA DEVt & ORS.
485
The Judgement of the Court was delivered by
A
1. Leave granted. Heard learned counsel.
2. One Rakesh Chand Sood (of whom respondents 1to3
are the legal representatives) and Sukh Dev (fourth respondent)
were in Naval service from 14.10.1966 to 31.10.1981 and B
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 1.mder general category.
c
3. The State made rules providing for reservation for
demobilized armed force personnel in Himachal State NonTech n ica I Services with effect from 28.3.1972 under
Demobilised Armed Forces Personnel (Reservation of
Vacancies in the Himachal State Non-Technical Services) Rules, D
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-Ill and class-IV posts. The percentage
of reservation was subsequently modified. Rule 5 thereof E
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 F
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 G
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 appointment)
to accept a reserved vacancy even if it occurs subsequent to
his appointment so as to extend to them the benefit of H
486
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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/
B
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
C
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
0
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
E
that the period of approved military service shall be counted in
the case of candidates appointed against 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
F
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
G
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,
H
were appointed against general vacancies in a technical service
STATE OF H.P. & ANR. V. ANJANA DEVI & ORS.
487
on 1.1.1983 and 15.1.1983. At the time of their appointment, A
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 representation purporting to exercise option to accept a B
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 C
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 0
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 occi.;rring E
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 F
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
G
to only those who were appointed on or after 3.5.1983, left out H
488
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
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 within the same technical service. The High Court
held that the classification excluding those appointed before
B
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.
C
8. The question that therefore arises for consideration is
whether the benefits of 1985 Rules shou Id 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
0
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 nontechnical direct recruitment posts. The benefit of counting the
E 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.
F
Subsequently, the 1985 Rules were 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
G 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
H came into force. Similarly, every ex-serviceman who was
STATE OF H.P. & ANR. V. ANJANA DEVI & ORS.
489
recruited against general (non-reserved) vacancies in technical A
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 B
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 c
presupposes classification of similarly situated persons into
different groups without any reasonable basis, for extending
dissimilar benefits or treatment. The technical services and nontechnical services were clearly different. Persons appointed
'>,
against reserved vacancies after reservation was provided, and D
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, exservicemen who were appointed against non-reserved technical
posts on or after 3.5.1983 were given the option to accept the E
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 F
cut off date arbitrarily t~ereby 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
f
cut off date. It is logical and rational, being the date on which G
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 H
490
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
came 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
8
allow this appeal and set aside the orders of the High Court
and the Tribunal and dismiss the original applications.
G.N.
Appeal allowed.