JAI RAM KAUNDAL Vs. STATE OF H P

JUDGEMENT

(1.) PETITIONER was appointed as Medical Officer (Dental) vide office order dated 31.5.1993. He joined his duties on 4.6.1993. One post of ex -serviceman scheduled caste was advertised vide advertisement No.5/96 dated 31.10.1996. Petitioner made a representation through proper channel to consider him against the vacancy of scheduled caste exserviceman. He has also stated in the representation that he has given the option to be considered against the reserved vacancy of ex -serviceman as and when available. Case of the petitioner was rejected vide office order dated 6.10.2008 on the basis of instructions dated 21.7.1982. According to the letter dated 6.10.2008, rules do not provide to give benefit of fixation of pay and seniority when the officer is not recruited against the reserved vacancy of ex -serviceman. The same stand has been reiterated by the respondents in the reply.

(2.) HOWEVER , fact of the matter is that petitioner was appointed on 31.5.1993 when the post of scheduled caste ex -serviceman was not available. It is in these circumstances he applied against scheduled caste category and appointed as Medical Officer (Dental) on 31.5.1993. The post of scheduled caste ex -serviceman has only become available on 31.10.1996. Case of the petitioner was required to be considered against this post, particularly when he had given option to be considered against the post of scheduled caste ex -serviceman as and when available. Petitioner had no option but to seek appointment against the scheduled caste post since the post of scheduled caste ex -serviceman was not available in the year 1993 when he was appointed as a Medical Officer (Dental). The instructions issued on 21.7.1982 clarifying that if any ex -serviceman belonging to scheduled caste or scheduled tribe is selected for an appointment, out of the vacancies reserved for being filled by ex -serviceman, his selection would be counted against the overall quota of reservation that shall be provided to scheduled caste or scheduled tribe as the case may be and once a person has been considered against scheduled caste or scheduled tribe quota, he cannot claim any benefit of being an exserviceman on a later date. These instructions would apply only when the ex -serviceman belonging to scheduled caste or scheduled tribe is selected for appointment out of vacancies reserved for being filled by ex -serviceman. In the instant case, the post of ex -serviceman was not available in the year 1993. It has become available only on 31.10.1996. Once the petitioner has given his option, he should have been considered against the post of exserviceman and conferred with all the rights upon him as per rules.

(3.) THE employer has to take reasonable common sense view of the matter. Petitioner is an ex -serviceman. He joined the post, which was available immediately after his retirement from army. He could not wait till availability of the post of ex -serviceman scheduled caste being advertised. It is in these circumstances, he got himself appointed against the post of scheduled caste category and simultaneously gave his option to be considered against the post of ex -serviceman as and when available. Respondents have misconstrued instructions dated 21.7.1982 to deny the benefit of pay fixation and seniority to the petitioner.