S.R. Singh, J.
1. The question that calls for determination in this writ petition is as to whether the respondents have violated Article 14 of the Constitution in not counting the military service rendered by the petitioner in the Indian Army while determining his seniority, etc. in the U. P. Civil Service (Executive)? Incidentally the question arises as to whether the provisions of the U. P. Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980 (hereinafter referred to as the Rules) is discriminatory and violative of Article 14 of the Constitution due to non-inclusion, within its purview, of noncommissioned officers who joined 'Armed Forces of the Union' on or after November 1, 1962 but before January 10, 1968 and again on or after December 3, 1971 and released at any time thereafter?
2. The petitioner did M.A. in Mathematics from Allahabad University in the year 1962. On promulgation of external emergency due to the threat to the security andintegrity of the Nation as a result of Chinese aggression in November, 1962, the petitioner joined the Indian Army as a Non-commissioned officer on 7.8.1964 without least thought of the career even though he was fully qualified to appear in the Civil Services Examination. After completion of arduous military training, he was posted in Western sector in the month of April, 1965 and there he participated in actual battle during Indo-Pak war in 1965 and was awarded medals - Samar Seva Star, Raksha Medal and Sainya Seva Medal (J & K). During the Bangladesh operation in 1971, he was on deputation with Government of Sikkim and was awarded Sangram Medal, 1971 and finally discharged from the military service on 14.12.1979. It would appear that the petitioner was selected for permanent commission (PC-SL) as an Education Officer and as a Quarter Master in the year 1978 but due to the prevailing family circumstances, he refused to wait for longer period and was discharged from the army service on 14.12.1979. Later on he appeared in the U. P. Civil (Executive Branch) Services Examination, 1982 and was selected by the Commission and appointed as Deputy Collector, Gonda, by Government Notification dated July 20, 1984. The petitioner staked his claim under the Rules for counting military service towards fixation of his seniority, etc. in the Civil Service to which he was appointed vide notification dated July 20, 1984. His claim came to be rejected by the State Government by order dated 23.2.1993 being Annexure-7 on the premises that the petitioner did not come within the purview of the Rules and did not satisfy the test of being 'demobilised officers' within the meaning of the Rules. The claim petition filed by the petitioner before the State Public Service Commission came to be dismissed in default vide order dated 7.6.2000.
3. We have had heard the petitioner who appeared in person and Sri Ran Vijai Singh, standing counsel representing the respondents. Despite opportunity, therespondents failed to file counter-affidavit and since the question involved is a question of law, we proceed to dispose of the writ petition finally after hearing the petitioner and the learned standing counsel.
4. The Rules in question read as under:
'1. Short title and commencement.--(1) These Rules may be called the 'Uttar Pradesh Non-Technical (Class II/ Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980.'
2. Overriding effect.--These Rules shall have effect notwithstanding anything to the contrary contained in any Rules or orders.
3. Definitions.--In these Rules unless the context otherwise requires :
(a) 'Armed Forces of the Union' mean the Naval, Military or Air Forces of the Union and include the Armed Forces of the former Indian States ;
(b) 'Demobilised Officer'means Disabled DefenceService Officer,Emergency CommissionedOfficer and the ShortService CommissionedOfficer, of the ArmedForces of the Union whowas Commissioned on orafter November 1, 1962but before January 10,1968 or on or afterDecember 3, 1971 and released at any time thereafter.
(c) 'Disabled Defence Service Officer' means a Commissioned Officer who while serving in the Armed Forces of the Union was disabled in the course of operation against the enemy or in disturbed areas.
4. Appointment. -- A person, selected for appointment to anon-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 August 6, 1978, in accordance with the provisions of the Uttar Pradesh Non-Technical (Class II) Service (Reservation of Vacancies for Demobilised Officers) Rules, 1973 (hereinafter to be referred to as the said Rules), shall be eligible and be considered for appointment against the vacancies reserved for demobilised officers under the said Rules :
Provided that the reserved vacancies shall be utilised first for the appointment of Disabled Defence Service Officers, and, if any such vacancies still remain unfilled the same shall then be made available to other Emergency Commissioned Officers and Short Service Commissioned Officers.
Explanation--The notification of vacancies or the advertisement thereof by the Commission shall, among other, be a process of recruitment within the meaning of this Rules.
5. Seniority and pay--(1) Seniority and pay of persons appointed against the vacancies referred to in the said Rules, shall be determined on the assumption that they entered the service concerned at the second opportunity of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination :
Provided that any such candidate who had two opportunities before the date of his joining the trainingprior to his commission, whether he actually availed any such opportunity or not, shall be assigned the same year of allotment as successful candidates of the first competitive examination held after the said date.
Explanation--(1) The year of candidate's second opportunity will be determined by the date of his birth in relation to the prescribed minimum age for competing for recruitment to the service.
(2) Seniority inter se of candidates, referred to in sub-rule (1), and allotted to a particular year shall be determined according to the merit list prepared by the Public Service Commission on the basis of their performance at the examination.
(3) All candidates appointedagainst vacancies,referred to in sub-rule (1)and allotted to anyparticular year, shall rankbelow the candidate whowere successful at thecompetitive examinationheld for recruitment to theservice in that year.
(4) The day of candidate'sappointment againstpermanent vacancies,initially to be filled ontemporary basis, oragainst temporaryvacancies which are likelyto be made permanent orto continue on a longterm basis, shall also bedetermined in the samemanner as indicated insub-rule (1) of this Rulebut their seniority shallbe determined inaccordance with theforegoing sub-rules only ifand at the point of timethey are substantivelyappointed againstpermanent vacancies.'
5. The Rule came up for consideration before the Supreme Court in Ram Janam Singh v. State of U. P. and another, (1994) 1 SCJ 279. The respondent therein filed a writ petition in the High Court alleging that he had been recruited for Short Service Commission in the Indian Army on 6th September, 1970 and was released from Army on 3rd December, 1975. Later on he was selected by the Public Service Commission and joined State Civil Service on 16th July, 1982. According to him. Rule 3 (1) of the Uttar Pradesh Non-Technical (Class-II) Services (Reservation of Vacancies for the Demobilised Officers) Rules, 1973, as well as Rule 3 (b) of the Uttar Pradesh Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised Officers) Rules, 1980, were discriminatory in nature and violative of Article 14 of the Constitution, inasmuch as they provide for special seniority for Disabled Defence Service Officers and the Short Service Commissioned Officers of the Armed Forces, who were Commissioned on or after November 1, 1962 but before January 10, 1968 and again those who were Commissioned on or after December 3, 1971, without there being any rational basis for the same. The writ petition was allowed by the High Court on a finding that exclusion of the period from 11.1.1968 to 2.12.1971 was wholly arbitrary and discriminatory in nature. A direction was accordingly issued by the High Court not to give effect to the provisions of Rule 3 (1) of the 1973. Rules and Rule 3 (b) of 1980, Rules for excluding the period from 11.1.1968 to 2.12.1971 in the matter of determination of the seniority of the respondent in the State Civil Service and to grant the benefit of Army Service to the said respondent while fixing his seniority in the State Civil Service. The Supreme Court allowed the appeal, set aside the judgment of the High Court and held that the High Courtwas not justified in directing exclusion of the period from 11.1.1968 to 2.12.1971 while determining the seniority of the said respondents. On the question of determination of inter-se seniority between persons recruited from different sources of the same service, the Supreme Court after considering its earlier decision held as under :
'It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service, which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons, can be treated a class separate from the rest, for any preferential or beneficial treatment while fixing their seniority. But whether such group of persons belong to a special class for any special treatment in matters of seniority, has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution, Normally, such classification should be by statutory Rule or Rules framed under Article 309 of the Constitution. The far-reaching implication of such Rules need not be impressed, because they purport to affect the seniority of persons, who are already in service. For promotional posts, generally the rule regarding merit and ability or seniority-cum-merit is followed in most of the services. As such the seniority of an employee in the later case is material and relevant to further his career, which can be affected by factors, which can be held to be reasonable and rational.'
6. Classification of 'Demobilised Officer' for special treatment under the Rules was held reasonable and justified on the ground that such persons had joined the 'Armed Forces of the Union' and rendered service to the country during emergency when nation's security was in peril due toexternal aggression. The petitioner in the instant case was admittedly recruited in the 'Armed Forces of the Union' during the relevant period of emergency imposed in view of the foreign aggression. The fact that he was recruited as a non-commissioned officer is not a valid basis of treating him differently from the Emergency Commissioned Officer and the Short Service Commissioned Officer recruited during the relevant period of emergency. Non-commissioned officers recruited during the relevant period will have to be read in the Rules as of necessity to save the Rules from any attack on the ground of being bereft of rationality. We are of the considered view that for the purpose of determination of seniority and pay, the petitioner was entitled to get the benefit of military service rendered by him inasmuch as he joined the defence service during the emergency proclaimed in view of external aggression. State Government have erred in denying the benefit of military service rendered by the petitioner while computing his seniority in the Provincial Civil Service.
7. In similar circumstances, benefit of the Rules is said to have been given to S/Shri Dilbag Singh, Arvind Kumar Dwivedi, Santosh Kumar Dwivedi, Vishal Nath Rai, Sushil Kumar and many others even though none of them had participated in any war while the benefit of the Rule has been denied to the petitioner who had actually participated in the war and was relieved from the military service during the period of emergency.
8. Accordingly, the petition succeeds and is allowed. The impugned order dated 27.2.1993 is quashed. The respondents are directed to refix the petitioner's seniority in the U. P. Civil (Executive Branch) Service with all consequential benefits within a period of one month from the date of service of certified copy of this order on the party respondent No. 2 after taking into consideration the military service rendered by him.