STATE OF H.P. & ANR.versusANJANA DEVI & ORS.

                          [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 KATJU, 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
    to accept a reserved vacancy occurring subsequent to his
E   vacancy.
          In this appeal the question that arose for
    consideration was whether the benefits of the Ex-
    servicemen (Reservation of Vacancies in the Himachal
    Pradesh Technical Services) Rules, 1985 should be
F   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.
G
         Allowing the appeal, the Court
        HELD: 1. The respondents were appointed against
    general category technical posts. When they were

H                                 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.      s-
                The 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
                was also given an option to accept a reserved vacancy         E
                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 non-
    reserved 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 homoge-
C   neous class into two groups and subjecting them to different
    treatments. That is not the case here.[Para 1OJ [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
    logical and rational, being the date on which reservation
0
    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
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]
         3. The orders of the Tribunal and the High Court are
F   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 Non-
     Tech 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
    brought into effect from the date of the notification (19.9.1986)
0
    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."
                                                                    G
      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
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
    service for purposes of seniority and pay fixation.
0
        9. As noticed above, the respondents were appointed
  against general category technical posts. When they were
  appointed reservation was available only in respect of non-
  technical 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 non-
      technical 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, ex-
      servicemen 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.