H.S. ATWAL AND ORS.versusUNION OF INDIA AND ORS.

                        H.S. ATWAL AND ORS.                                    A
                                     v.
                     UNION OF INDIA AND ORS.

                              JULY 27, 1994

             [KULDIP SINGH AND B.L. HANSARIA, JJ.]                             B

       Seivice Law-Demobilised Indian Am1ed Forces Personnel (Rese1va-
tion of Vacancies) in the Himachal Pradesh Administrative Rules 1974--Rule
4( 1)-lnterpretation of-Fixation of Senioril)-A member of anned forces
covered by Rules-No opportunity of entering State Administrative Seivice C
available during period of military seivice-!oinedAdministrative Seivice after
demobilisation-Period of military seivice for purpose of seniority-Counting
of-Wltether pennissible.

      The appellant bad joined the army sometime in 1963 and left it in
1968. Later joined the Himacbal Pradesh Administrative Service in 1975.        D
The first examination which had been conducted to enable any person to
join the State Administrative Service was In 1973. Appellant was denied
benefit of period of military service rendered by him for the purpose of his
seniority on the ground that no opportunity of entering Administrative
Service had become available to him during the period of bis military          E
Service. The State Administrative Tribunal rejected the claim. Appeal bas
been fded challenging order of Tribunal.

       On the question whether a member of armed .forces covered by the
Rules would get the benefit of period of military service rendered by him
for the purpose of bis seniority irrespective of the fact that while under     F
military Service be did not get any opportunity to enter the Administrative
Service which such a member bad joined after demobilisation;

      Dismissing the appeals, this Court

      HELD : 1.1. When a fiction is created by a legal provision, it cannot    G
be carried beyond the purpose for which It bas been created. [324-D]

      K.S. Dhannadatan v. Central Govt., [1979] 4 SCC 204, relied on.

     1.2. As the benefit of the military service for the purpose of seniority
has been hedged by a condition and as the condition got satisfied in the H
                                     319
    320                    SUPREME COURT REPORTS (1994( SUPP. 2 S.C.R.

A   instant case only in 1973, the period of military service between 1963 and
    1968 was not required to be reckoned to determine the seniority of the
    appellant. The purpose for which the sub rule (I) was made does not
    require giving of benefit in question even if the condition mentioned in the
    sub-rule is not satisfied. The condition imposed is reasonable and suffi.
    ciently compensates the members of the armed forces for the contribution
B   made by them to protect the country during the external aggression, of
    1962. [324-E·Fl

           1.3. The sub-rule, as it is, tends to show that the opportunity in
    question should have become available to the incumbents during the period
C   of their military service. This was not so in the present case. It may thus be
    that the entire sub-rule became non-operational on this ground as well. It
    has to be seen whether in such a situation it would be open to this Court to
    give the benent of period of military service regardless of what has been
    stated in the sub-rule because of the services rendered by the appellants
    when our country was in distress. Law does not permit to do so because the
D   well settled legal principle is that In the absence of rule or executive instruc·
    lion Indicating the manner In which inter-seniority has to be fixed, it Is
    length of service which is the basis for fixing the same. [324·H, 325·A·Bl

           Khusbash Singh v. State of Punjab, [1981) 2 SLR 576; D. Rama Rao,
    v. State of A.P., AIR (1988) SC 857 and Union of India v.Ansusekhar Guin,
E   AIR (1989) SC 377, relied on.

          S.B. Dogra v. State of H.P., [1992] 4 SCC 455; Union of India v. S.
    Krishna Murthy, [1989] 4 SCC 689; K.C. Arora v. State of Haryana, [1984] 3
    SCC 281 and Narendra Nath Pandey v. State of U.P., [1988] 3 SCC 527
F   distinguished.

          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1654-55
    of 1990.

         From the Judgment and Order dated 22.12.89 of the Himachal
    Pradesh Administrative Tribunal in T.A. No. 263/86 and 92 of 1987.
G
          Rajinder Sachhar, Rajiv Dutta and Vipin Nair for the Appellants.

         N.N. Goswamy, K. Madhava Reddy, Y.P. Mahajan, P.Parmeswaran,
    H.S. Munjral and Kawaljeet Kochhe, for J.D.Jain for the Respondents.

H         The Judgment of the Court was delivered by
                  H.S.ATWAL v. U.0.1.fHANSARIA,J.]                      321

       HANSARIA, J. The "spinal issue" (which is the expression used in A
the impugned judgment of the Administrative Tribunal) in these appeals
is relatable to the interpretation of rule 4 (1) of Demobilised Indian Armed
Force Personnel (Reservation of Vacancies) in the Himachal Pradesh
Administrative Rules 1974, hereinafter, the Rules. The precise point for
our consideration is whether a member of armed forces covered by the
                                                                             B
Rules would get the benefit of period of military service rendered by him
for the purpose .of his seniority irrespective of.the fact that while under
military service he did not get any opportunity to enter the Himachal
Pradesh Administrative Service which such a member had joined after
demobilisation.
                                                                               c
       2. To answer the aforesaid question we may not the .broad facts
pretaining to one of the appellants only he being H.S. Atwal, appellant No.
1, as that would serve our purpose. Atwal had joined the army sometime
in 1963 and left it in 1968. He joined the Himachal Pradesh State Ad-
ministrative Service in 1975. The first examination which had been con-
ducted to enable any person to join the State Administrative Service was       D
in ·1973. Atwal took a stand, on the strength of the aforesaid rule, that
though the first opportunity whcih became available to him was in 1973,
his period of military service, which was of about five years, has to be
reckoned for the purpose of his seniority, whereas he was taken to have
entered the Administrative Service on 25. 7.71, which was the date             E
Himachal Pradesh got Statehood. Atwal thus got benefit of about four and
a half years for the purpose of his seniority whereas this period would have
been five year if the contention of Atwal were to be accepted. The Tribunal
not having done so the present appeals have been preferred.

      3. Let us note the material part of rule 4(1):                           F

           "Fixation of pay, seniority and retirement benefits.-(!) The
        period of military service rendered after attaining the minimum
        age prescribed for appointment to the Himachal Pradesh Ad-
        ministrative Service, by the candidates appointed against reserved     G
        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 Himachal Pradesh Administra-
        tive Service in respect of such candidate as are appointed against
        the reserved vacancies under rule 2 shall be determined on the         H
    322                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A           assumption that they joined the service under the State Govern-
            ment at the first opportunity they had after joining military service
            or training prior to the commission.

                            x    x    x   x    x    x   x

B         4. Shri Sachar, learned senior advocate appearing for the appellants,
    has strenuously contended that denial of period of military service to the
    appellants on the ground that no opportunity of entering Administrative
    Service had become available to them during the period of their military
    service is not tenable; and is really against the decision of this Court in CB.
C   Dogra v. State of Himacha/ Pradesh, [1992] 4 SCC 455.

           5. Let us first see whether Dogra's case can be called in aid, though
    the first opportunity to join the Himachal Pradesh Administrative Service
    had become available in 1973. A perusal of the judgment in Dogra's case
    shows that this Court had in fact expressed no view on the legality of the
D   ground basing on which seniority was given to Dogra from 1964, though in
    his case also first opportunity had become available in 1973. This becomes
    apparent from what has been stated in paragraph 10 to which our attention
    has been invited by Shri Mehta appearing for some of the intervenors. It
    has been stated therein that as respondent Amist challenged the seniority
    of Dogra for the first time in 1983, the same ought not to have been
E   disturbed by the Tribunal after long lapse of time, as it had been finalised
    in 1979. This Court also observed that the Tribunal should have been slow
    in these circumstances in interfering with the seniority which was holding
    the field for last several years. As such what was accepted in Dogra's case
    cannot assist the appellants.
F
          6. Let us now see whether the contention of Shri Sachhar has merit
    Dehors Dogra's decision. He contends that what was held by this Court in
    Union of India v. S. Krishnamurthy, [1989] 4 SCC 689 would bear his
    contention. We do not, however, think so. The point under consideration
    here had not come up for examination in that case because the appellants
G   therein had joined the army between 1962-68 and opportunity to join the
    Indian Police Service and Indian Forest Service had become available to
    them for the first time in 1963 and so during the period of their military
    service. That was not a case whether first opportunity to join the civil
    services had become available after the incumbents had ceased to be in
H   military service, as in present appeals.
                   H.S. ATWAL v. U.0.1. [HANSARIA, J.]                   323

       7. The decision in KC. Arora v. State of Haryana, (1984] 3 SCC 281 A
which was heard along with the appeal of A. S. Pam1ar does not also
advance the matter because those cases principally dealt with retrospec-
tivity of the benefit given by a parallel provision whose language was also
different as has been pointed out in paragraph 7 of Dogra's case. For the
same reason the decision of this Court in Narender Nath Pandey v. State of B
U.P., [1988] 3 SCC 527 is no relevant as the language of rule which had
come up for consideration in that case too was differently worded as
observed in paragraph 9 of Dogra's case.

      8. Having found that the no light is shed by any of the aforesaid cases,
let the point under consideration be examined on first principle. Shri C
Sachhar's main contention stenuously advanced is that what has been
stated under clause (a) of the sub-rule dealing with the condition cannot
take away the benefit conferred by the main part of sub-rule (1) which is
about reckoning of military service for the purpose of seniority. According
to the learned counsel this benefit has to be given irrespective of the fact D
whether the condition mentioned under clause (a) gets satisfied or not.
This legal contention is disputed by the learned counsel of the respon-
dents, according to whom the sub- rule has to be read as a whole and the
main part of it cannot be read in isolation, that is, without taking note of
the condition subject to which the period of the military service has to be
reckoned for the purpose of seniority.                                         E

       9. To decide as to which of the contentions merits our acceptance
we have to know the purpose for which the benefit had been given. The
same apparently is to see that the persons who joined military service to
defend the country from external aggression which took place in 1962 do         F
not suffer from disadvantage as regards their seniority in civil services
which they had joined after demobilisation. It may be pointed out that
before the Rules at hand came into existence, there had been similar
administrative circulars, the first of which seems to be one which was issued
in July 1963 which has been noted in K. C. Arora's case. The benefit sought
to be conferred however was hedged by the condition mentioned in the            G
clause (a).

      9A. A Full Bench of the Punjab and Haryana High Court had
occasion to deal with the question under examination, though in a different
context. That was in the case of Khusbash Singh v. State of Punjab, (1981) H
    324                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A 2 SLR 576. In that case the incumbent claimed the benefit of similar rule
    from 1964, in which year the first examination for the purpose of recruiting
    the member for the Service in question was held, though by that year he
    was not qualified to appear in the examination. The Full Bench held that
    the rule did not permit the benefit of the military service to be given for
    the purpose of seniority, the incumbent being not qualified to appear in
B   the examination which was held in 1964. It was observed in paragraph 10
    that the opportunity of which the rule speaks of, though presumptive, has
    to satisfy the conditions prescribed by the Rules. It was also stated that
    rule 4(1)(a) does not tend to make the opportunity fictional and it does
    not relax the rigours imposed; one of which was the necessity of having
C   required qualification before one could be accepted as eligible for appear·
    ing in the examination.

          10. We may point out that when a fiction is created by a legal
    provision, it cannot be carried beyond the purpose for which it has been
D   created, as pointed out by this Court in KS. Dharmadatan v. Central
    Govenimem, [1979] 4 SCC 204. This view had been taken after noting some
    important Indian and English decisions to which reference was made in
    paragraphs 11 to 13.

          11. As the benefit of the military service for the purpose of seniority
E   has been hedged by a condition and as the condition got satisfied in the
    present cases only in 1973, we cannot agree with Shri Sachhar that the
    period of military service between 1963 to 1968 was required to be reek·
    oned to determine the seniority of Atwal; so too in case of other appellants
    who are similarly situated. The purpose for which the sub-rule was make
F   does not require giving of benefit in question even .if the condition men-
    tioned in the sub-rule is not satisfied The condition imposed is reasonable
    and sufficiently compensates the members of the armed forces for the
    contribution made by them to protect the country during the year of 1962
    external aggression.

G         12. We have another observation to make. The same is that the
    sub-nile, as it is, tends to show that the opportunity in question should have
    become available to the incumbent during the period of their military
    service. This was not so in the present case. It may thus be that the entire
    sub-rule became non- operational on this ground as well. Question is
H   whether in such a situation in would be open to this Court to give the
                      H.S. ATWAL v. U.0.1. [HANSARIA, J.]                   325

    benefit of period of military service regardless what has been stated in the ·A
    sub-rule because of the services rendered by the appellants when our
    country was in distress. We have given our due thought to this aspect and
    we feel that law does not permit us to do so because the well settled legal
    principle is that in the absence of rule or executive instruction indicating
'   the manner in which imer-se seniority ha.< to be fixed, it is length of service
    which is the basis for fixing the same, as pointed out by a two-Judge Bench
                                                                                    B
    in paragraph 5 of D.Rama Rao, v. State of Andhra Pradesh, AIR (1988) SC
    857. The same view was expressed in Union of India v. Ansusekhar Guin,
    AIR (1989) SC 377 in which another two-Judge Bench of this court stated
    that continuous length of service is the well accepted rule of fixing inter-se
    seniority, when the service rule does not prescribe any mode of fixing the     c
    same (See paragraph 5).

           13. In the aforesaid premises, we are not in a position to accept the
    legal submission advanced by Shri Sachhar because of which the appeals
    stand dismissed. We, however, leave the parties to bear their own costs.

    A.G.                                                    Appeals dismissed.