- (1.) Whether the petitioner who joined service prior to the amendment in the year 1977 of Demobilised Armed Personnel (Reservation of Vacancies in the Punjab State Non-Technical Services) Rules, 1968 (for short, 'the Rules,) is governed by the Rules as they stood prior to their amendment and whether he was appointed to a post reserved for a Released Indian Armed Forces Personnel are the two questions which arise for determination in this petition under Article 226 of the Constitution. Facts giving rise to this petition may be taken note of.
(2.) Petitioner joined military service on May 20, 1969 and was released from the Army on his own request on April 16, 1975. The total period for which he served the Army, thus, comes to 5 years, 10 months and 26 days. After his release from the Army he was selected as a Clerk in the office of the Director, Prosecution and Litigation, Punjab on August 21, 1975 and he joined this post on August 26, 1975. He claimed the benefit of his aforesaid military service for purposes of seniority and pay fixation in terms of Rule 5 of the Rules. The claim was rejected by the Department on the ground that the Rules were amended on April 20, 1977 which amendment was published on May 20, 1977 and according to the amended Rules the petitioner was not a' Released Indian Armed Forces Personnel' so as to get the benefit thereunder. The other ground on which the claim was rejected was that he had not been appointed against a post reserved for being filled up by a Released Indian Armed Forces Personnel and therefore he could not be given the benefit under the Rules. The present petition has been filed challenging the action of the respondent in not giving to the petitioner the benefit of his military service in terms of Rule 5 of the Rules as it stood prior to their amendment.
(3.) Before dealing with the contentions raised on behalf of the petitioner it is necessary to notice the relevant provisions of the Rules as they stood prior to their amendment in the year 1977 and the amendments made therein. Rules 3(1) and 5(1) as they stood prior to their amendment read as under :- "3(1) Twenty per cent of the non-technical posts to be filled up through direct recruitment shall be reserved for being filled up by the Released Indian Armed Forces Personnel who joined service or were commissioned on or after the Ist day of November, 1962, and are released at any time thereafter. 5(1) Seniority and pay of the candidates who are appointed against the vacancies under rule 3 shall be determined on the assumption that they joined the service or the post, as the case may be, under the State Government at the first opportunity they had after they joined the military service or training prior to the commission." The term 'Released Indian Armed Forces Personnel' came to be defined in clause (d) of Rule 2 of the Rules after their amendment in the year 1977 and this is as follows : "(d) "Released Indian Armed Forces Personnel' means the Indian Armed Forces Personnel who were Commissioned to or who joined the Armed Forces of the Union, as the case may be, on or after the first day of November, 1962, but before the 10th day of January, 1968 and who were released on demobilisation thereafter but does not include :- (i) Volunteer Reserved Forces Personnel of the Armed Forces of the Union called upon for temporary service; or (ii) Indian Armed Forces Personnel who, before their appointment against vacancies reserved under these rules :- (a) are granted permanent commission; or (b) joined or join a civil service of the Union or a civil service of a State or a civil post under the Union or a state after their release from the Armed Forces of the Union." Rule 5(1) after its amendment reads as under :- "5(1) Seniority and pay of the candidates who are appointed against the vacancies reserved under rule 3 and who,- (1) in the case of Emergency Commissioned Officers, are released according to a phased programme or (ii) in the case of short service commissioned officers, are released on the expiry of the tenure of their service or (iii) are invalidated owing to a disability attributable to or aggravated by military service; shall be determined on the assumption that they joined the service or the post, as the case may be, under the State Government at the first opportunity they had after they joined the military service or training prior to the commission." It will be seen from the aforesaid rules that a person who joined military service on or after the Ist day of November, 1962 and was released at any time thereafter for any reason was entitled to the benefits of seniority and pay fixation in terms of Rule 5(1) prior to the amendment of the Rules in the year 1977. After the amendment a Released Indian Armed Forces Personnel meant a person who joined the military service on or after Ist day of November, 1962 but before the 10th day of January, 1968 and who was released on demobilisation thereafter. Again the benefit of seniority and pay fixation are given to candidates who are appointed against vacancies reserved under Rule 3 provided they satisfy either of the three conditions enumerated in amended Rule 5(1) of the Rules. It is common case of the parties that the petitioner was entitled to the benefits of seniority and pay fixation in terms of Rules as they stood prior to their amendment and was not entitled to the same if the amended Rules were to be made applicable to him.;