HIGH COURT OF UTTARAKHAND AT NAINITAL v. State of Uttarakhand another

Judgment

1. Pet it ioner was enr olled in I ndian Ar m y as Sepoy and he ret ired from service as Haw aldar on 31.01.2014. He is receiving service pension from I ndian Arm y; t hus, he is an ex- servicem an. Aft er r et irem ent I ndian Arm y, pet it ioner was appoint ed as Assist ant Teacher in a Governm ent Prim ary School on a post reserved for ex- servicem en, and present ly, he is an em ployee of St at e Educat ion Depart m ent .

2. Pet it ioner is challenging Clause 8 of Order dat ed

22.05.2020 issued by Addit ional Chief Secr et ary, Governm ent of Ut t arakhand, w hich is ext ract ed below: - t hat once an ex- servicem an has “HkwriwoZ lSfudksa dks jkT;k/khu lsokvksa esa lsok;kstu ds lUnHkZ esa Hkkjr ljdkj ds O.M. No. 36034/ 27/ 84- Est t . ( SCT) dat ed 02.05.1985, it was decided t he Governm ent j ob on civil side aft er availing of t he benefit s given t o him as an ex- servicem an for his re- em ploym ent , his ex- servicem an st at us for t he purpose of re- em ploym ent in Governm ent would cease.” dk izkfo/kku jkT;k/khu lsokvksa esa ykxw fd;k x;k gSA vr,o jkT;k/khu lsok laoxksZ esa lsok;kstu gsrq Hkkjr ljdkj dh uhfr ds vuqlkj {kSfrt vkj{k.k dh x.kuk dh tk;sxhA** j oined 1

3. Clause 8 of t he Gover nm ent Order dat ed

22.05.2020, im pugned her ein, refers t o an Office Mem orandum issued by Cent ral Gover nm ent

02.05.1985. The said Office Mem orandum provides t hat benefit of ex- ser vicem en st at us would be available only once and if an ex- servicem an get s civil em ploym ent due t o his ex- ser vicem en st at us, t hen he shall not be ent it led t o such benefit again.

4. By order dat ed 22.05.2020, Governm ent of Ut t arakhand adopt ed t he Cent ral Governm ent Policy, as cont ained in Office Mem o dat ed 02.05.1985 for St at e services also, m eaning t her eby t hat once appoint ed in a St at e service, ex- servicem en cannot get t he benefit available t o ex- servicem en in t he select ion for som e ot her post under t he St at e.

5. Pet it ioner

challenged t he condit ion m ent ioned in Clause 8 of Governm ent Order dat ed

22.05.2020 on t he ground t hat as a St at e Legislat ion is in place which provides r eservat ion t o ex- servicem en in St at e Services, t her efor e, benefit available t o t hem under t he said Legislat ion cannot be rest rict ed or t aken away by t he St at e Governm ent , by a Governm ent Or der.

6. I t is not in disput e t hat St at e Legislat ure enact ed The Ut t ar Pradesh Public Service ( Reservat ion For Phy sically Handicapped, Dependent s of Freedom Fight ers and ( Ex- Servicem en) Act , 1993 ( from her einaft er referr ed t o as “ Act ” ) , which was am ended from t im e t o t im e. The said Legislat ion is applicable in St at e of Ut t arakhand also. The expr ession “ Ex- Servicem en”, used t he aforesaid Legislat ion, was subst it ut ed by t he expression “ Purva Sainik” by Ut t arakhand Act No. 3 of 2009 w.e.f.

16.03.2009. 2

7. Sect ion 2( c) of t he Act defines “ Pur va Sainik”, as follows: - “ 2 ( c) Purva Sainik" m eans dom icile of Ut t arakhand who has served in I ndian Ar m y, Navy or Air Force as fight er or non- fight er and who has- ( 1 ) ret ired from such service aft er earning t heir pension; or ( 2 ) who has been released from such service on m edical for m ilit ary service or has been grounds as required released under such circum st ances beyond his cont rol and who has been given m edical or ot her eligibilit y pension; or ( 3 ) who has been released on account on resignat ion in est ablishm ent of such service and not on his own request ; from such service aft er ( 4 ) who has been com plet ing a specific period but has not on his own request , or has not been from service because of m isconduct or inefficiency and who has been paid grat uit y, and includes following cat egories of Territ orial Arm y personnel are also: - t erm inat ed or rem oved released ( i ) Those receiving pension service. ( i i ) Medically unfit due t o m ilit ary service. ( i i i ) Those who received bravery award.” for cont inuous organized

8. Sect ion 3( 1) ( i) provides reservat ion in St at e Services t o t he ext ent of 5 per cent of vacancies t o Purva Sainik, besides 2 per cent reservat ion t o dependant s of Freedom Fight er s. Sect ion 3( 1) of t he Act is r eproduced below: - “ 3 Re s e r v a t i o n o f v a ca n ci e s i n f a v o u r o f p h y si ca l l y h a n d i ca p p e d e t c. ( 1 ) t he procedure recruit m ent for direct t he I n reservat ion shall be as follows: - freedom I n public services post s 2% of t he vacancies for t he ( i ) dependent s of vacancies for Purva Sainik. I n public services and post s as m ay be not ified ( i i ) t hrough not ificat ion by St at e Governm ent , 1% of t he vacancies for each suffering from t he following: - fight ers and 5% of ( a) Blindness or low v ision; ( b) Hearing im pairm ent ; ( c) Locom ot or disabilit y or cerebral palsy.”

9. The ex pr ession “ Purva Sainik”, as defined in Sect ion 2( c) of t he Act leaves no room for doubt t hat ( i) a 3 dom icile of Ut t arakhand, who served in I ndian Arm y, Navy or Air For ce and w ho ret ir ed from such service, aft er earning pension; ( ii) or released fr om service on m edical grounds or w ho was released under circum st ances beyond his cont rol and was given m edical or ot her eligibilit y pension; ( iii) or w ho was r eleased from service for reasons ot her t han his ow n request ( iv) or who was r eleased from service aft er com plet ing a specific period for r easons ot her t han t er m inat ion or rem oval from service and w ho was paid grat uit y, is a Pur va Sainik or Ex- servicem en. Thus, t he expr ession “ Purva Sainik”, as defined in t he afor esaid Act , includes every per son who falls in any of t he four cat egories enum erat ed in Sect ion 2( c) of t he Act .

10. Ther e is no prov ision, eit her in t he definit ion clause or in ot her Sect ions of t he Act , which excludes a per son from benefit s of t he Act m er ely because he secur ed appoint m ent in St at e Service wit h or wit hout t he benefit available t o ex- servicem en. As per Schem e of t he Legislat ion, an ex- servicem en will rem ain so, even aft er get t ing em ploym ent under t he St at e or t he Cent ral Governm ent aft er availing t he benefit s m eant for ex- servicem en.

11. Lear ned counsel for t he pet it ioner is right in subm it t ing t hat t he benefit s conferr ed t o ex- servicem en by a St at e Legislat ion cannot be t aken away by execut ive inst ruct ions issued by t he Governm ent and t he obj ect ive which St at e Governm ent t rying t o achieve can be achieved only by am ending t he Legislat ion.

12. From plain reading of Sect ion 2( c) and Sect ion 3( 1) ( i) of t he Act , it is appar ent t hat a “ Ex- servicem en” does not cease t o be ex- servicem en m erely by accept ing em ploy m ent under t he St at e/ Cent ral Gover nm ent . He 4 ret ains his st at us of ex- servicem en, even aft er availing t he benefit m eant for ex- servicem en, in a select ion. I n ot her words, w hen t he Legislat ion does not im pose any r est r ict ion regarding t he num ber of t im es benefit can be availed by ex- servicem en, t hen such rest rict ion cannot be im posed by execut ive inst ruct ions. Law is set t led t hat execut ive inst ruct ion can only supplem ent t he St at ut e but cannot supplant st at ut ory provisions.

13. Mr. K.N. Joshi, learned Deput y Advocat e General cont ended t hat Arm y, Navy and Air For ce personnel are em ployees of t he Cent ral Governm ent , defence being Union Subj ect , and since Cent ral Gover nm ent has for m ulat ed policy t o give benefit of ex- serv icem en st at us for re- em ploy m ent only once, t her efore, St at e Gover nm ent did t he right t hing by following t he policy of t he Cent ral Governm ent . He relies upon a j udgm ent r ender ed by learned Single Judge of Hon’ble Delhi High Court in t he case of All I ndia Ex- Servicem an Bank Em ployee’s Feder at ion ( Regd.) vs. The Chair m an, St at e Bank of I ndia & ot hers, report ed in 2013 SCC OnLine Del 1533.

14. I n t he said j udgm ent , Hon’ble Delhi High Court was considering t he Office Mem o dat ed 02.05.1985, issued Cent ral Governm ent , w hich provided t hat relaxat ion/ benefit in t he m at t er of re- em ploym ent t o ex- servicem en would be available only once. Car eful perusal of t hat j udgm ent reveals t hat Hon’ble Delhi High Cour t was not dealing wit h any Legislat ion, but it was called upon t o int erpr et t he Office Mem orandum issued by Cent ral Governm ent in 1985. The fact s her e ar e ent irely different . We ar e concer ned wit h a Legislat ion w hich pr ovides reservat ion t o a ex- servicem en and it does not im pose any rest rict ion r egarding num ber of t im es benefit of ex- servicem en st at us can be availed of by a person. St at e 5 Governm ent , by issuing execut ive inst ruct ions, is t rying t o int erfere wit h t hat right available t o ex- servicem an. Thus, t he said j udgm ent is dist inguishable on fact s.

15. Lear ned St at e Counsel relied upon anot her j udgm ent r endered by learned Single Judge of Hon’ble Delhi High Court in t he case of Kavinder Singh Vohra v s. Lok Sabha Secr et ariat & anot her , r epor t ed in 2024 SCC Online Del 4888. I n t he said case also, Hon’ble Delhi High Cour t was considering Office Mem o dat ed 02.05.1985 issued by Cent ral Gover nm ent , w hereby benefit available t o ex- servicem en, for seeking r e- em ploym ent , was r est rict ed in t he cont ext of select ion for appoint m ent under t he Cent ral Governm ent .

16. I n t he absence of any Cent ral Legislat ion providing benefit s t o ex- servicem en, Office Mem o dat ed

02.05.1985, issued by Cent ral Governm ent , held t he field. Her e, fact s ar e ent irely differ ent , as in St at e of Ut t arakhand, t her e is a Legislat ion providing r eservat ion t o ex- ser vicem en, and wit hout am ending t hat Legislat ion, benefit s available t o ex- servicem en, cannot be cur t ailed. Under t he Act , Ex- servicem en for m a hom ogeneous class and t hey cannot be furt her classified as St at e Gover nm ent has at t em pt ed t o do.

17. I t is set t led posit ion in law t hat when t he field is cover ed by St at ut e, t hen Governm ent cannot issue any inst ruct ions cont rary t o t he expr ess provisions of t he St at ut e. A pur port ed policy decision, issued by way of execut ive inst r uct ion cannot override t he St at ut e or St at ut ory Rules, as held by Hon’ble Supr em e Court in t he Case of St at e of Orissa & ot her s v s Prasana Kum ar Sahoo, report ed in 2007 ( 15) SCC 129. Para 12 of t he said j udgm ent is ext ract ed below: - 6 t aken by I ndia would be subservient t he St at e “ 12. Even a policy decision exer cise of it s j urisdict ion under Art icle 162 of t he Const it ut ion of t he recr uit m ent r ules fram ed by t he St at e eit her in t erm s of a legislat ive Act or t he proviso appended t o Art icle 309 of t he Const it ut ion of I ndia. A purport ed policy decision inst ruct ion cannot issued by way of an execut ive override t he st at ut e or st at ut ory rules far less t he const it ut ional prov isions.” t o

18. I n t he case of Union of I ndia & anot her v s Dim ple Happy Dhakad, report ed in 2019 ( 20) SCC 609, Hon’ble Supr em e Court in para 29 r eit erat ed t hat “ it is well- set t led principle t hat any execut ive inst r uct ion like t he guidelines cannot curt ail t he provisions of any st at ut e or whit t led dow n any provision of law”.

19. Hon’ble Supr em e Court in t he case of St at e of Madhy a Pradesh & anot her vs. M/ s G.S. Dall and Flour Mills report ed in 1992 Supp. ( 1) SCC 150 has held t hat “ execut ive inst r uct ions can supplem ent a st at ut e or cover areas t o w hich t he st at ut e does not ext end. But t hey cannot run cont rary t o st at ut ory provision or whit t le down t heir effect .”

20. Sim ilarly, in t he case of Jaiveer Singh & ot her s vs. St at e of Ut t arakhand & ot her s, report ed in 2023 SCC OnLine SC 1584, Hon’ble Supr em e Court has held as under : - t he Rules and “ 4 9 . I t can t hus be seen t hat it is a t rit e law t hat t he Governm ent cannot am end or supersede st at ut ory rules by adm inist rat ive inst ruct ions, but if t he rules ar e silent on any part icular point , it can fill up t he gaps and supplem ent inst r uct ions not inconsist ent wit h t he rules alr eady fram ed. I t is a set t led proposit ion of law t hat an aut horit y cannot issue inst r uct ions order s/ office m em orandum / execut ive rules. How ever, cont ravent ion of inst ruct ions can be issued only t o supplem ent t he st at ut ory rules but not t o supplant it .” st at ut ory t he 7

21. Clause 8 of Gover nm ent Or der dat ed 22.05.2020 suffers from vice of art ificial classificat ion. Legislat ion, which covers t he field, does not per m it classificat ion of Purva Sainik ( Ex- ser vicem en) based on t heir re- em ploy m ent st at us. The definit ion, as given in t he Act , includes all persons wit hin t he fold of “ Purva Sainik”, who fall in any one of t he four cat egories enum erat ed in Sect ion 2( c) of t he Act . Thus, t he classificat ion m ade by St at e Governm ent bet w een t hose w ho are yet t o be appoint ed vis- à- vis t hose who ar e em ployed by or under t he Governm ent , by execut ive inst r uct ions, cannot but be cast igat ed as discrim inat ory. I t is set t led posit ion in law t hat execut ive inst ruct ions cannot run count er t o a Legislat ion dealing direct ly on t he subj ect .

22. I n view of t he legal posit ion as discussed above, Clause 8 of t he Governm ent Or der dat ed 22.05.2020 is liable t o be set aside and is her eby set aside. The writ pet it ion is accordingly allowed. _______________________________ M A N OJ K UM A R TI W A RI , J. ____________________________ SUBH A SH UPA D H YA Y, J.

29.07.2025 Aswal NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08 d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F 4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL 8