Civil Appeal No. ... of 2011 (Arising out of SLP (C) No. 5098 of 2007) and Civil Appeal Nos. ... of 2011 (Arising out of SLP (C) Nos. 25949-25951 of 2008). Case: 1. Rajendra Pratap Singh Yadav and Ors., 2. Sudhir Kumar Vs 1. State of U.P. and Ors., [Alongwith Civil Appeal No. ... of 2011 (Arising out of SLP (C) No. 7393 of 2007)], 2. Madhukar Dwivedi and Ors., [Alongwith Civil Appeal Nos. ... of 2011 (Arising out of SLP (C) Nos. 26022-26024 of 2008)]. Supreme Court (India)

Case NumberCivil Appeal No. ... of 2011 (Arising out of SLP (C) No. 5098 of 2007) and Civil Appeal Nos. ... of 2011 (Arising out of SLP (C) Nos. 25949-25951 of 2008)
CounselFor Appearing Parties: Dinesh Dwivedi, Rajeev Dhawan, P.S. Patwalia, Sr. Advs., Shail Kr. Dwivedi, AAG, D.K. Singh, Pradeep Shukla, Advs. for Abhijit Sengupta, Adv., P.N. Gupta, Manish S. Srivastava, Mukesh Sharma, Asit Chaturvedi, Rajeev Dubey, Shekhar Kumar, Priyanka Singh, Anurag Sharma, Advs. for AP and J Chambers, Upendra Nath Mishra, ...
JudgesDalveer Bhandari and Deepak Verma, JJ.
IssueGeneral Clauses Act; Uttar Pradesh Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) (Amendment) Rules, 1990; Uttar Pradesh Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 - Rules 3 and 4; Uttar Pradesh Non-Technical (Class-II) Services (Reservation of Vacancies for ...
CitationJT 2011 (7) SC 255, 2011 (7) SCALE 22
Judgement DateJuly 05, 2011
CourtSupreme Court (India)

Judgment:

Dalveer Bhandari, J.

  1. Leave granted in all the Special Leave Petitions.

  2. Since common questions of law arise in all these appeals, therefore, these appeals are being disposed of by a common judgment. The facts of Civil Appeal No.... of 2011 arising out of Special Leave Petition (Civil) No. 5098 of 2007 entitled Rajendra Pratap Singh Yadav and Ors. v. State of U.P. and Ors. are recapitulated for the sake of convenience.

  3. The Appellants and Respondent No. 4 - Rakesh Kumar Jolly are direct recruits to the Uttar Pradesh Provincial Police Service. It is stated that the Appellants are 4 to 10 years senior to Respondent No. 4, who was selected and appointed in the year 1994 as Deputy Superintendent of Police in Uttar Pradesh Provincial Police Service. Respondent No. 4 was given benefit of his past service in the Indian Army as a Short Service Commissioned Officer of eight years vide order dated 29.11.2004 issued by the State Government. Since Respondent No. 4, though junior was placed above the Appellants, therefore, the Appellants filed a writ petition before the High Court of judicature at Allahabad.

  4. According to the Appellants, Respondent No. 4 could not have been given the benefit of past service. The benefit of back seniority was given to Respondent No. 4 under the U.P. Nontechnical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980, as amended in 1990. Demobilised Officer has been defined in Rule 3(b) of the Demobilisation Rules, 1980, which reads as under:

  5. Definitions - In these rules unless the context otherwise requires?

    (a)....

    (b) "Demobilised Officer" means Disabled Defence Service Officer, Emergency Commissioned Officer and the Short Service Commissioned Officer of the Armed Forces of the Union who was commissioned on or after November 1, 1962 but before January 10, 1968 or on or after December 3, 1971 and released at any time thereafter.

    (c)....

  6. Respondent No. 4 joined the Indian Army in 1981 and was discharged from the Army in 1986. He was a Short Service Commissioned Officer. The Appellants raised the following questions in this case.

    (1) Whether a Short Service Commissioned Officer who was commissioned in the Army during the normal period is entitled to the certain benefits given to the Army officers who were commissioned during the emergency when the nation was at war with the foreign enemy.

    (2) Whether a demobilized Short Service Commissioned Officer who was commissioned in the army during normal period and whose selection in the civil post is not against the vacancies reserved for demobilized officers under U.P. Non-Technical (class-II) Services (Reservation of Vacancies for Demobilised Officers) Rules, 1973 (hereinafter referred to as "1973 Rules") is entitled to seniority under the Uttar Pradesh non-technical (Class II/Group-B) Services (Appointment of Demobilised Officers) Rules, 1980 (hereinafter referred to as "1980 Rules")?

    (3) Whether a demobilized Short Service Commissioned Officer who is not selected for appointment to a non-technical Class-II/Group-B service or post against the vacancies reserved for demobilised officers, as a result of recruitment, the process of which was concluded or commenced prior to 6th August, 1978, in accordance with the provisions of 1973 Rules is entitled to seniority and pay as meant for the persons appointed against the vacancies reserved under the 1973 Rules?

    (4) Whether when a Short Service Commissioned Officer who has been selected and appointed against the vacancies reserved for such officers under the Government Order of 1977 which does not contemplate any seniority for the past services rendered in the Army, is entitled to seniority under the 1980 Rules?

    (5) When the order of appointment itself provides that the seniority of the selected Short Service Commissioned Officer shall be determined according to the Uttar Pradesh Police Service Rules, 1942, can the Government dehors the terms of the appointment order grant him seniority of 8 years because he happened to be a Short Service Commissioned Officer?

  7. The main argument articulated by the Appellants is whether a Short Service Commissioned Officer who was commissioned in the Army during the normal period is entitled to the certain benefits given to the Army officers who were commissioned during the emergency when the nation was at war with the foreign enemy.

  8. It was submitted before the High Court that the person who had joined the Army after declaration of emergency due to foreign aggression and those who joined after the war came to an end stand on an entirely different footing. Those who joined the Army after revocation of emergency joined the Army as a career and belong to different class distinct from those who had joined the Army during war and emergency.

  9. It is well known that many persons who joined the Army service during the foreign aggression could have opted for other career or other softer career or service but the nation itself being under peril, impelled by the spirit to serve the nation, they opted for joining the Army where the risk was little more. Such persons formed a class by themselves and by framing Rules an attempt had been made to compensate those who returned from the war if they compete in different services.

  10. The persons who joined the Army service after cessation of the foreign aggression and revocation of emergency cannot be treated like persons who have joined the Army during emergency due to foreign aggression and similar benefits cannot be given to such persons even by making rules.

  11. The Appellants also submitted that whenever any particular period is spent in any service by a person is added to the service to which such person joined later; it is bound to affect the seniority of persons who have already entered in the service. As such, any period of earlier service should be taken into account for determination of seniority in the latter service only for special or compelling reasons, which stand test of reasonableness and on examination, can be held to be free from arbitrariness. Therefore, the decision of the Government of India to give seniority to Respondent No. 4, who did not join the armed forces during emergency and thus stealing a march over 181 officers is not only contrary to the Rules but is discriminatory and arbitrary and violative of Articles 14 and 16 of the Constitution of India.

  12. According to the Appellants, the High Court in the impugned judgment did not appreciate the controversy involved in the case in proper perspective and dismissed the...

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