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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

WPSS NO. 1966 OF 2018

DISTRICT: HARIDWAR

1 - SANJAY SINGH
.......... Petitioner

Versus.

1 - STATE OF UTTARAKHAND, THROUGH PRINCIPAL SECRETARY, HOME

DEPARTMENT
2 - DIRECTOR GENERAL OF POLICE
3 - ADDITIONAL DIRECTOR OF POLICE (PAC)
4 - COMMANDANT, 40 VAHINI, P.A.C.
.......... Respondent

Petitioner Advocate: MUNISH BHARDWAJ Respondent Advocate:

07-07-2023
 HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No.1966 of 2018

Sanjay Singh ..…Petitioner

Versus
State of Uttarakhand and others .… Respondents
Present :-
Mr. Anil Anthwal, Advocate, for the petitioner.
Mr. Narain Dutt, Brief Holder, for the State of Uttarakhand.

Dated: 16th December, 2021

JUDGEMENT

Hon’ble Sharad Kumar Sharma, J.

The IA No. 12993 of 2021, filed by respondent No.4,

along with supplementary counter affidavit is taken on record.

2. The matter is listed on an Urgency Application No.

12994 of 2021, preferred by the petitioner, the same would stand
allowed.

3. With the consent of the parties, the Writ Petition is being

heard on its own merit.

4. The petitioner to the present Writ Petition had prayed for

issuance of a writ of mandamus, commanding the respondents to take
into account the services rendered by the petitioner in the Armed
Forces, for the purposes of the re-fixation of his pay scale and service
benefits, after being re-engaged in the Police Department, to be
determined after inclusion of the period of services rendered with the
Indian Army.

5. Few facts, which are apparent on records are, that

according to the case of the petitioner, the petitioner was selected and
was later enrolled in the Indian Armed Forces on 16th July, 1993, and
 2

after qualifying the training, he joined the armed force services as a

soldier and after rendering 15 years of services in the Indian Armed
Forces, he was discharged from the Armed Forces on 31st August,
2008. Subsequent thereto, the writ petitioner is shown to have joined
his services as a constable with the respondents w.e.f. 4th April, 2011,
and had discharged services in the said capacity as a Constable in the
Civil Police, and hence, his grievance raised in the Writ Petition has
been, that after his absorption as a Constable in the State Police
Services, after rendering the services from 1993 till 31st August 2008,
in the Indian Armed Forces, the same was required to be taken into
consideration for the purposes of grant of the service benefits and re-
fixation of his scale. He submits that despite of having repeatedly
represented his case before the respondents, when no action was
taken, he had preferred this Writ Petition.

6. The learned counsel for the petitioner submitted, that the issue
pertaining to the inclusion of the service period, for the grant of
service benefits on the subsequent engagement, after having
discharged from the Armed Forces, was a subject matter, which was
initially agitated before the Division Bench of this Court in Writ
Petition (S/B) No. 50 of 2005, T.P. Kundaliya Vs. State of
Uttarakhand and others, wherein, the learned Division Bench of
this Court vide its decision rendered on 4th July, 2005, has held that on
the basis of the judgment of the Hon’ble Apex Court and, as well as
that of the Allahabad High Court, as rendered in Writ Petition to
29711 of 1992, the petitioner’s services, which he has rendered in the
Armed Forces after being commissioned, on completion of training is
required to be taken into consideration for the purposes of extension
of the service benefits after having been absorbed in the Transport
Department, (as it was in that case) and that should be taken into
consideration for the purposes of even determination of seniority. The
relevant part of the judgement of the Division Bench has observed in
para 7, 8 and 9 as under :-
 3

“7. The first respondent has no case that the petitioner’s

case is not similar to that of Jitendra Nath, respondent in Civil
Appeal Nos. 837 and 838 of 1995 before the Supreme Court.
The only contention is that the benefit of the order of the
Supreme Court in Civil Appeal No. 837 and 838 of 1995
(Annexure 7 to the writ petition) can be claimed only by the
said Jitendra Nath. However, when the petitioner’s case is
admittedly similar to that of Jitendra Nath and when the
petitioner claims the same benefit which was extended to Sri
Jitendra Nath, there is no reason why the petitioner should be
treated differently from the said Jitendra Nath. In our view,
since the case of the petitioner is similar to the case of Sri
Jitendra Nath whose claim was upheld by the Hon’ble Supreme
Court, the petitioner also is entitled to the benefit extended to
Sri Jitendra Nath. In this view of the matter Annexure 11 order
is liable to be quashed and the first respondent is liable to be
directed to extend to the petitioner the benefit extended to Sri
Jitendra Nath and to take into account the Army service
rendered by the petitioner for fixing his seniority in the
Transport Department.
8. Mr. B.D.Kandpal, learned Standing Counsel for the
first respondent submitted that unless the judgment of the
Supreme Court in Civil Appeal No.358 of 1994 filed by the
State of Uttar Pradesh against the judgment of the High Court
of Allahabad in Writ Petition No. 29711 of 1992 filed by the
petitioner, is not reviewed, the petitioner cannot be granted the
relief sought in this writ petition. We do not find any merit in
this contention. In the judgment of the Supreme Court in Civil
Appeal No.358 of 1994, the only issue considered and decided
was whether the classification between the officers, who were
commissioned prior to 10th January, 1968 and after 10th
January, 1968 was discriminatory or not. The question whether
an officer who had joined the training prior to 10th January,
1968 and on successful completion of the training was
commissioned after 10th of January, 1968 is entitled to the
benefit under the Rules, was not considered or decided by the
High Court or the Supreme Court in the earlier case. The above
question was considered and decided by the High Court and the
Supreme Court only in Jitendra Nath’s case. In Jitendra Nath’s
case, both High Court of Allahabad and the Supreme Court of
India held that an officer who had joined the training prior to
10th January, 1968 and on successful completion of training
was commissioned after 10th January, 1968 is entitled to the
benefit under the Rules. Hence, the judgment of the Supreme
Court in Civil Appeal No. 358 of 1994 does not stand in the
way of allowing the prayer in this writ petition.
9. In the above circumstances, the writ petition is
allowed. Annexure 11 order is quashed. The first respondent
is directed to take into account the Army service rendered by
the petitioner in fixing his seniority in the Transport
 4

Department of the first respondent. The first respondent shall

reconsider Annexure 9 representation of the petitioner and
pass fresh orders in the light of the above directions as
expeditiously as possible and at any rate within a period of
two months from the date of the receipt of a copy of this
judgment”

7. This judgement of the learned Division Bench, it is not

the case of the respondents ever pleaded that was ever put to challenge
before the Hon’ble Apex Court or was ever set aside by the Hon’ble
Apex Court, hence the same ratio will still hold good in the eyes of
law and not even that based on the same principles, yet another
Division Bench of this Court in Writ Petition No. 231 (S/B) of 2006,
Ravindra Singh Nayal Vs. State of Uttaranchal and others, while
making reference to the judgement of 4th July, 2005, had the extended
identical benefit and thereby directed, that the services rendered by
the petitioner therein, in the Indian Armed Forces is to be taken into
consideration for the purposes of fixation of seniority in the Police
Department from the date of the receipt of the certified copy of the
judgement and also for the purposes of extension of other service
benefits. The relevant part of the judgement rendered by the Division
Bench on 4th November, 2006, is extracted hereunder :-

“Hon’ble Supreme Court while dismissing the Civil

Appeal Nos. 837 and 838 of 1995 filed by the State of Uttar
Pradesh held that Sri Jitendra Nath who joined the Army for
training on 17.08.1967 and was commissioned only on
23.06.1968 was entitled to the benefits as he was undergoing
training w.e.f. 17.08.1967. Considering the effect of Rule 3 of
the above-mentioned Rules and the need for undergoing actual
training before the commissioning of officers, the Supreme
Court held that officers like Jitendra Nath also are entitled to
the benefit of the Rules.
According to the petitioner, he was selected in the Indian
Army and was sent for training on 08.12.1967 and thereafter,
had been commissioned as Officer on 12.01.1969. The
aforesaid controversy has also been dealt with the Division
Bench of this High Court in Writ Petition No. 50 (SB) of 2005
[T.P. Kundaliya Vs. State and another] decided on 04.07.2005.
It is disputed by the respondents that the case of the
petitioner is similar to the case of T. P. Kundaliya, petitioner in
writ petitin no. 50 (SB) of 2005 decided by this court, as such,
he is entitle for the same relief.
 5

In view of the above, writ petition deserves to be

allowed. Writ Petition is allowed. Service rendered by the
petitioner in Indian Army shall be taken into consideration
for fixing the seniority in the Police Department within a
period of two months from the date of receipt of copy of this
judgement. Interim relief application no. 113457 of 2006 is
disposed of accordingly. No order as to costs.”

8. In fact, the subsequent judgement of the Division Bench

too, while recording its finding has foundationed its judgement based
on the observations which were made in para 7, 8, and 9 of the earlier
judgement of the Division Bench, which has been extracted above.

9. The aforesaid principles laid down by the Division Bench

is being sought to be controverted by the learned Brief Holder, based
on the fact, that on the basis of the circular issued, in fact, there was a
gap between the petitioner’s engagement in the Police Department
and from the date of his discharge from the Armed Forces, and there
was no continuity of services as such, hence, the petitioner would not
be entitled for extension of same benefits in the light of the
provisions, which has been referred therein by the learned Brief
Holder, as it has been appended with the supplementary counter
affidavit.

10. The reference made to the Notification No.214 dated 18th

November, 2015, is on the pretext that under the amended provisions,
by virtue of which, an amendment was made in Uttarakhand
Sevanivrti Labh (Sansodhan) Niyamawali, 2016, in fact, it was
attempted to be conveyed, and convinced, that when there is a time
gap between the engagement from the date of the discharge from the
Armed Forces, in that eventuality, the continuity of services is broken
and the period of services rendered in the Armed Forces will not be
taken into consideration for the fixation of the service benefits and
also for the purposes of determination of seniority.
 6

11. This contention of the learned Brief Holder in the light of

the aforesaid Notification dated 18th November 2015, is not acceptable
by this Court for the reason being that, if the judgement of the
Division Bench dated 4th November, 2006, is taken into consideration,
in fact, in principle and factually, it was akin to the case at hand,
because thereto the petitioner, who claimed the re-fixation of the
service benefits, after including the services rendered by him in the
Armed Forces was based upon the same facts, wherein, the petitioner
therein in the said Writ Petition, was discharged from Indian Army on
9th April, 1979, and he was much later on engaged in the Police
Department of the State, much thereafter in 1983. It was under those
circumstances, where there was a gap of beyond three years in the re-
engagement, and hence, it is quite obvious and logical also, because
immediately after the discharge from the Indian Armed Forces, it
may not be a situation, where always a person thus discharged from
the Indian Army, would be readily made available with the services
immediately thereafter, the date of the discharge and it quite
obviously engages certain time period for him to get himself suitably
appointed after searching a job according to his suitability, in any
other Government Departments and that time gap, when the
endeavour are being made by the person concerned to be reengaged
after the discharge from the Indian Army cannot be for all practical
purposes be treated as to be a break into the services in order to create
an impediment in the extension of the service benefits, after including
the period of services rendered by the person in the Armed Forces,
and particularly, in the judgement of the Division Bench of this Court,
which has attained finality i.e. dated 4th November, 2006, thereto, the
situation prevailing was the same, where the discharge date was of 9th
April, 1979, and the engagement in the Police services was of 14th
January, 1983.

12. Since this principles laid down by the Division Bench

had quite categorically laid down, that the services rendered by the
person in the Indian Armed services cannot be laid to futility due to its
 7

non-consideration for the extension of benefits, when a person is

subsequently engaged in a State Department.

13. Hence, I am of the considered view that the embargo,

which has been sought to be attracted by applying the Notification No.
214 dated 18th November, 2015, in view of the amendment, which
was made in 2016, it will not be applicable in the light of the judicial
precedents laid down by this Court, and particularly, because of the
fact when the petitioner in the instant case was discharged from the
Indian Army only on 31st August, 2008, and he was re-engaged in the
State Police Force on 4th April, 2011, i.e. much prior to the
amendment, which was made by the State Government by virtue of
the Notification dated 18th November, 2015. When the right of the
petitioner has matured under the then prevalent Rules, based on the
judicial precedence, the same cannot be clouded by way of a
subsequent amendment made by the State by virtue of the Notification
of 18th November, 2015, or an executive directions.

14. In that eventuality, the Writ Petition is allowed. The

respondents are directed to re-fix the pay scale payable to the
petitioner and the consequential benefits flowing from it, after
including therein the period of services which has been rendered by
the petitioner in the Indian Armed Forces, after his commission in the
Army on 16th July, 1993, and from the date of his discharge on 31st
August, 2008, and his subsequent re-engagement in the Police and
extend all the service benefits accordingly in the light of the principles
of the Division Bench judgement, within a period of two months from
the date of production of certified copy of this judgement.

15. Subject to the above observations, the Writ Petition

stands allowed.

(Sharad Kumar Sharma, J.)

16.12.2021
Shiv