1. Special leave granted.
2. This appeal arises out of a writ petition (CWP No. 4200 of 1983) filed by Respondents 1 and 3 (hereinafter referred to as "the petitioners") in the High Court of Punjab and Haryana wherein they assailed the seniority of the appellant in the Haryana Civil Service (Executive Branch) [for short "HCS(EB)"]. The said writ petition was dismissed by the learned Single Judge of the High Court. Letters Patent Appeal No. 712 of 1986 filed against the said judgment of the learned Single Judge was allowed by the Division Bench of the High Court by the impugned judgment dated 21-6-1990.
3. The facts, briefly stated, are as follows :
The appellant had initially joined the service of the former State of Punjab in July 1961 as Extension Officer (Industries). On 12-4-1963, he joined the Indian Army as an Emergency Commissioned Officer on a Class I post. He continued in the Army till February 1969. On 4-2-1969, he was appointed on the Class II post of Assistant Director in the Industries Department of the Government of Haryana since no suitable Class I equivalent post was made available to him at that time. In respect of vacancies of the year 1975 a special recruitment was made for HCS(EB) and the appellant was selected and on that basis he was appointed to HCS(EB) Class I on 27-1-1978. Under Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter referred to as "the Rules"), as applicable in the State of Haryana, the benefit of military service is to be granted in the matter of increments, seniority and pension. The appellant claimed the benefit of his military service in the matter of seniority in HCS(EB). The said benefit was granted to him and, as a result, he was given deemed appointment against the vacancy of 1971 in HCS(EB). The petitioners had been appointed to HCS(EB) against the vacancies of 1971 and their seniority was adversely affected by the said extension of the benefit of military service to the appellant. Feeling aggrieved by the said alteration of seniority of the appellant, they filed the writ petition which has given rise to this appeal.
4. The Division Bench of the High Court has taken the view that the appellant took the benefit of his military service for the purpose of his being considered for selection for HCS(EB) against the vacancies of 1973 but he was not selected in the said selection and that the appellant could not again be given the benefit of military service on his being selected against the vacancies of 1975 and his being appointed to HCS(EB) in 1978. The learned Judges of the High Court have relied upon the proviso to Rule 4(ii) and Rule 3(3) of the Rules in this regard.
5. It may be stated that both the petitioners have now retired from service and they have no subsisting interest in the case. But it has been submitted that the appeal survives because insofar as the appellant is concerned, he has been downgraded in seniority by many places as a result of the impugned judgment of the High Court. In these circumstances, it is necessary to deal with the appeal on merits.
6. Shri S.B. Sanyal, the learned Senior Counsel appearing for the appellant, has invited our attention to the decision of the Punjab and Haryana High Court in Raj Kumar Verma, HCS v. State of Haryana (1981) 3 SLR 436 (P&H) wherein the High Court had struck down, as being violative of Articles 14 and 16 of the Constitution, the provisions of Rule 4-A of the Rules which provided that the benefit of military service towards increments and seniority, mentioned in Clauses 9(i) and (ii) of Rule 4, shall be admissible only on first appointment under the Government. It has been submitted that by this judgment CWP No. 1541 of 1979 filed by the appellant was allowed. In the said writ petition the grievance of the appellant was that benefit of military service had not been extended to him for the purpose of fixation of his seniority in HCS(EB). In pursuance of the direction given by the High Court in the said judgment, the benefit of military service was extended in the matter of seniority in HCS(EB) to the appellant. Shri Sanyal has submitted that the High Court was in error in proceeding on the basis that the appellant had availed of the benefit of his military service for the purpose of his being considered for selection for HCS(EB) against the vacancies in 1973. The submission is that in that selection the appellant was not considered because he had not completed the requisite number of five years service which was counted from the actual date of joining in 1969. It was also urged that the High Court has erred in proceeding on the basis that the benefit of the proviso to Rule 4(ii) of the Rules has been extended to the appellant. It has been submitted that the said proviso was inserted in the Rules by notification dated 22-3-1976 and that it was not in force at the time when selection was made for the vacancies of 1973. It is, therefore, submitted that the appellant did not take any benefit of his military service in the matter of selection for HCS(EB) against the vacancies of 1975 because at that time the appellant was eligible for such consideration since he had completed five years' service after his appointment in 1969 and there was no question of his being given the benefit of military service for the purpose of eligibility for such selection.
7. In our view, there is considerable merit in the aforesaid submissions of Shri Sanyal. The appellant was selected for HCS(EB) in Special Recruitment. At the time when he was considered for selection against the vacancies of 1975 he was eligible for such consideration because he had completed five years' service after his appointment in 1969. There is nothing to show that he was given the benefit of his military service for the purpose of eligibility for consideration for selection against the vacancies of 1973 in the HCS(EB). The benefit of military service for the purpose of seniority, as indicated in Rule 4(ii) of the Rules, was, therefore, rightly extended to him. The High Court, in our opinion, was in error in proceeding on the basis that the said benefit could not be extended to him since he had already availed of this benefit in the earlier selection for HCS(EB) against the vacancies of 1973.
8. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the petitioners is dismissed. No order as to costs.