S.B. DOGRAversusSTATE OF HIMACHAL PRADESH AND ORS.

                       S.B. DOGRA                                                 A
                             v.
           STATE OF HIMACHAL PRADESH AND ORS.

                          SEPTEMBER 24, 1992
                                                                                  B
             (A.M. AHMADI AND K. RAMASWAMY, JJ.)

      State of Himachal Pradesh Act 1970: Sec. 40(1)-Himachal Pradesh
Police Rules 1973-Rule 18(C) Indian Police Service (Appointment by
Promotion) Regulations 1955.
                                                                                  c
      Demobilised A1111ed Forces Personnel (Reservation of Vacancies in the
Himachal Pradesh State Non-Technical Services) Rules 1972, Rule 5(1)
Delhi, Himacha/.Pradesli ·and Andaman and Nicobar ls/ands Police Service
Rules, Rule 20
                                                                                  D
       Select list of l.P.S officers of Himachal Pradesh State-Fixation of
interse seniority-DHANI service officer and officer appointed against vacan-
cy reserved for 'Demobilised A1111ed Forces Personnel' in H.P. State. Seniority
List-Not to be disturbed by Coult after a long lapse of time.

      The State of Himachal Pradesh was established under the provisions          E
of the State of Himachal Pradesh Act, 1970 with effect from January 25,
1971. The H.P. Police Service was constituted under Section 40(1) of the
said Act by drawing personnel.from the l)HANI Police service. Sub-section
(6) of the said Section provided that the rules and regulations applicable
to members of the DHANI Police Service as in force immediately before             F
January 25, 1971 shall apply until altered, repealed or amended. The H.P.
Police Rules, 1973 came to be framed and were promulgated with effect
from March 13, 1973.

      The H.P. Police Service, thus comprised of: (I) those members who           G
were allotted to this service by the Central Government under Section
40(4) of the State of Hlmachal Pradesh Act, 1970, (II) those members of
the erstwhile DHANI Service who were Inducted In this service after
January 25, 1971 and before the 1973 Rules were promulpted, and (Ill)
those members who came to be Inducted in the service after the 1973 Roles
came into force.                                                                  H
                                      825
    826                  SUPREMECOURTREPORTS (1992]SUPP.1S.C.R.

A         Respondent No.S • Durga Shankar Amist-filed a Writ Petition lo the
    High Court challenging his exclusion from the Select List for IPS omcers
    and the inclusion of the appellant in the said list. He contended that be
    joined service as Deputy Superintendent of Police against a regular and
    permanent ,vacancy on November 22, 1967 in the erstwhile Joint Union
B   Territories Cadre • DHANI Police Service. On his clearing the All-India
    Competitive Examination conducted by the UPSC in 1965 be. was allocated
    to the State of Himacbal Pradesh of January 25, 1971. Ile was confirmed
    In service on Se_ptember 24, 1971, placed in the selection grade with effect
    from May 4, 1973 and confirmed on June 24, 1974. He was sent on
    deputation to the Government of India in April, 1978, later transferred to
C   Delhi where served till September, 1981 and on his return to his parent
    cadre lo June, 1982 was appointed as a Commandant in the police Bat·
    talion in a eadre post where he served upto November 14, 1982.

          His nam~ was Included by the Selection Committee which met on
D   October 25, 1977 in the Select List of officers found suitable for promotion
    to the IPS and his name remained on the Select List from 1977 to 1981 bnt
    in the year 1982 bis name came to be removed whereas the names of the
    two other omcers, the appellant, and one B.C. Negi were included In the
    Select List.

E         The appellant - S.8. Dogra • who was respondent No.3 in the
    aforesaid Writ Petition was selected for an Emergency Commission In the
    Indian Army in April 1963 and after successful completion of training was
    commissioned in September 1963. Later, in May 1967 he was appointed
    DSP in the ITBP, a Government nr ln.:ia Class-I post and on being relieved
F   from the Indian Army was permanen!ly .1bsor:icd in the ITBP in Novem·
    ber, 1967. He was allocated to the State Police Service with effect from
    January 25, 1971. He cleared the Hlmachal Pradesh State Service Ex-
    amination In the second attempt in 1975 and was appointed against the
    vacancy resen-ed for 'Demobilised Armed Forces Personnel' under the
    Demooillsed Armed Forces Personnel (Reservation of Vacanc:ies in the
G   Himachal Pradesh State Non-Technical Services) Rules, 1972.

         Another omcer, B.C. Negi • Respondent No.5 in the Tribunal
    belonged to a Scheduled Tribe. He appeared in the all- India combined
    competitive examination held by the UPSC in 1965 and was olTered ap·
H   pointment to a Grade II post in the DHANI service, which he accepted and
                      S.B.DOGRA v. STATE OF H.P.                        827

was appointed on probation with effect from January 20, 1967. On success·       A
fut completion of training be was posted as Deputy Superintendent of
Police, and be was allocated to the H.P. Police Service with elTect from
January 25, 1971. Being a member of the Scheduled Tribe bis service was
11overned by Rule 20 of DHANI Service Rules which provided that such
appointments 'shall be subject to orders regarding special representation       B
in service for Scheduled Tribes issued by the Government of India from
time to time', and Rule 18(C) of the H.P. Police Rules 1973 which stlpnlated
that the seniority of omcers allocated under section 40(4) of the Hl-cbal
Pradesh Act 1970, whose seniority bad been finalised shall remain un·
cbanpd.
                                                                                c
       Since Respondent No.S • Durga Sbankar Amis!· bad Joined the State
·Service in 1967, be was shown three placed below the appellant In the
 tentative seniority list of March 31, 1977. The Onal seniority list Wiii
 prepared and published on February 27, 1979 showing the same position~
 This notional year of entry bad given the appellant a11 ed(le over Respon·     D
 dent No.S and this was the subject matter of the appeal.

      One S.R. Thakur Ried a Writ Petition in the High Court cballen&lnll
the seniority of the appellont. The High Court upheld the aforesaid
seniority assigned to the appellant on interpretation of the 1972 Roles a11d
dismissed the Writ Petition on April 10, 1981.                                  E
     A Letters Potent Appeal was Ried but the same was dismissed on
 August 9, 1985. Thus, seniority ossigned to the appellant was Judlclall1
 amrmed by the High Court.

        After the dismissal of the aforesaid Writ Petition but before the       F
 decision in the Letters Patent Appeal, Respondent No.S • Durga Sbankar
 Amist ·without seeking impleadment in the LPA moved a Writ Petition In
 the High Court In the yeor 1983 clalmln11 seniority over the appellant (S.B.
 Dogra) and B.C. Negl (Respondent No.5) and consequential reliefs. Tbls
 Writ Petition would have been dismissed if it continued to re-In on the        G
 ftle of the High Court but on the enactment of the Central Administrative
 Tribunals Act 1985, the same was transferred to the Central Admlnlstra•
 tlve Tribunal by virtue of Section 29(2).

      B.C. Neg! contended that his seniority which bad already beea
 determined by the application of Rule 20 DHANI Service Rules read with         H
    828                    SUPREME COURT REPORTS (1992] SUPP. I S.C.R.

A Rule 18(C) H.P. Police Rules could not be altered or changed and, there·
    fore, bis Inclusion in the Select List prepared by the Selection Committee
    at Its meeting of December 20, 1982 was unassailable.

           The Central Administrative Tribunal, relying on the decisions of this
    Court lnA.S. Parmarv. State of Haryana & Ors., (1986) 2 SLR 741 and/CC.
B   Arora & Ors. v. State of Haryana, (1984] 3 sec 281 concluded that an
    ex-servicemen can be given seniority In the civil post only for tho actual
    period of service rendered In armed forces during the period of emorgency,
    I.e., between October 26, 1962 and January 10, 1968 and held that the
    appellant could not be given the benefit of seniority for more than the
C   period of bis actual service in the Army during the emergency, and that
    even If be Is given that benefit of 4 years' service, be cannot be assigned
    seniority over D.S. Amist.

          The appellant and Sbri B.C. Negi challenged the decision of the
    Tribunal In appeals to this Court. The appeal of Sbri B.C. Negi, .tz., C.A.
D   No. 2015 of 1987 having been dismissed as withdrawn, only the appellant's
    appeal bad to be decided on the question whether the seniority of the
    appellant bad been rightly Rxed.

          Allowing the appeal, this Court,
E          HEW: 1. On a mere comparison of the Pmtjab National Emergency
    Concession Rules, 1965, particularly the definition clause, read with Rule
    4(11), with Rules 5(1) of the Demobilised Armed Forces Personnel (Reser·
    vatlon of Vacancies in the Himacbal Pradesh State Non-Technical Service)
    Rules, 1972, It Is obvious that the language of the two rules Is not Identical
F   and while the former limits its scope to 'during the period of operation of
    the proclamation of emergency', there are no such words of limitation to
    be fonnd In Rule 5(1) of 1972 Rules nor bas such an Inference being
    attempted to be drawn from other provision in the 1972 Rules. The
    Tribunal \l'llS, therefore, In error In resting its decision on the ratio of A.S.
G   Pannar's case which turned on the language of the Punjab Rules applicable
    to Haryana which are not shown to be In pari materia with the Hlmacbal
    Pradesh Rules. [837..C]

         2. The Tribunal was; therefore, wrong lo confining the benefit under
    Rule 5(1) to the period of Dogra's actual service lo the army during the
H   emeraency. [837·Dl
                      S.B. DOGRA v. STATE OFH.P.                        829

      3. Rule 5(1) of the 1972 Rules states that the seniority of candidates    A
appointed against the vacancies reserved under rule 3 shall be determined
'on the assumption' that they joined service and the post under the State
Government 'at the first opportunity' they had 'after' they joined military
service or training prior to commission. The language of this rule Is
altogether different from the language of the Haryana rule on which A.S.        B
Parmar's case was decided. [837-H, 838-A)

      4. On the construction of this Rule 5(1), the seniority assigned to
Dogra was three places above Amis! In the tentative seniority list clrcu·
lated In March 1977 which came to be finalised In February 1979. No
objection was raised by Amis! regarding the placement given to Dogra In         C
the seniority list. Some other junior officers had challenged It In the High
Court but without success. Amis! challenged It for the first time In 1983
after bis name was dropped from the Select List of 1982. In such cir·
cumstances, the Tribunal should have been slow in Interfering the seniority
which was holding the field for the last several years. [838 B·Dl
                                                                                D
       5. If the employees concerned does not filed his representation within
the period prescribed after the date of the publication of the provlsonal
gradation list, then his representation should have to be rejected outrlghL
It is erroneous to contend that the employee concerned should have waited
for filing his representation or objection until the final gradation list was   E
published. Therefore, a representation filed long after the expiry of the
time mentioned In the Gazette publishing the provisional gradation list
has to be rejected as belated. (839 A·C]

        KC. Arora v. State of Haryana, (1984) 3 SCC 281, referred to.
                                                                                F
        State of Madhya Pradesh v. Rameshwar Prasad, (1976) 2 SCC 37,
applied.

     A.S. Parmar v. State of Haryana, (1986) 2 SLR 741 and Narendra Nath
Pandey v. State of U.P., (1988) 3 SCC 527, distinguished.
                                                                                G
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.2016 of
1987.

     From the Order dated 27.5.1987 of the Central Administive Tribunal,
Chandigarh in RA. No.28/87 in 0.A. No.ff.A. No. T-519 of 1986.                  H
    830                  SUPREME COURTREPORTS [1992] SUPP.1 S.C.R.

A         M.R. Sharma, Ms. Anjana Sharma and M.C. Dhingra for the Ap·
    pellant.

         Dr. N.M. Ghatate and Yogeshwar Prasad, Ms. Bina Gupta, Ms.
    Monika Mobil, Anand, Promod Swarup, Praveen Swarup and Ms. Rachna
B   Gupta for the Respondents.

          The Judgment of the Court was delivered by

           AHMADI, J, Respondent No.5, Durga Shanker Amist, filed a Writ
    Petition in the High Court of Himachal Pradesh challenging his exclusion
C   from the Select List for !PS officers and the inclusion of the present
    appellant S.B. Dogra in the said list. His case was that he joined service as
    Deputy Superintendent of Police against a regular and permanent vacancy
    of November 22, 1%7 jn the erstwhile Joint Union Territories Cadre
    (Delhi, Himachal Pradesh and Andaman and Nicobar Islands Police Ser·
D   vice - in short 'OHAN! Police Service') on his clearing the all-India
    Competitive Examination conducted by the Union Public Service Commis-
    sion in 1965. He was allocated to the State of Himachal Pradesh on January
    25, 1971 after the formation of that State. He was confirmed in service on
    September 24, 1971 and was placed in the selection grade w.e.f. May 4,
E   1973 on which grade he was confirmed w.e.f. June 24, 1974. He was sent
    on deputation as Deputy Central Intelligence Officer of the Intelligence
    Bureau, Government of India, in April 1978 and was later transferred to
    Delhi where he served till Septemj>er 1981. He returned to his parent cadre
    in September 1981 but soon thereafter in June 1982 he was appointed as
F   Commandant, 1st Armed Police Battalion, Junga, on a cadre post where
    he served upto November 14, 1982. It may here be mentioned that his name
    was included by the Selection Committee which met on October 25, 1977
    in the Select List of officers found suitable for promotion to the IPS under
    the Indian Police Service (Appointment by Promotion) Regulations, 1955,
    (hereafter called 'the 1955 Regulations'). His name remained on the Select
G   List from 1977 to 1981 but in the year 1982 his name came to be removed
    whereas the names of the other two officers, namely, the present appellant
    S.B. Dogra and B.C. Negi were included in the Select List.

          The appellant S.B. Dogra (original respondent No.3) was selected
H for Emergency Commission in the Indian Army in April 1%3 and after
               S.B. DOGRA v. STATE OFH.P. [AHMADI, J.]                    831

successful completion of the training he was commissioned in September           A
1963. Later in May 1967 he was appointed Deputy Superintendent of
Police/Company Commander in the Indo-Tibetan Border Police, a
Government of India Class I Post. He was relieved from the Indian Army
and was permanently absorbed in the Indo-Tibetan Border Police in
November 1967. After the formation of the State of Himachal Pradesh he           B
was allocated to the State Police Service w.e.f. January 25, 1971. In 1974
he appeared but could not clear the Himachal Pradesh State Service
Examination. However, he succeeded in the second attempt in 1975 and
was appointed against the vacancy reserved for 'Demobilised Armed For-
ces Personnel' under the Demobilised Armed Forces Personnel (Reserva-
tion of Vacancies in the Himachal Pradesh State Non-Technical Services)          C
Rules, 1972 (as amended in 1974), (hereinafter called 'the 1m RulcS') and
was given the benefit of his military service under clause (1) of Rule 5 of
the said Rules. The said sub-rule reads as under:

        "The seniority and pay of the candidates who are ap-                     D
        pointed against the vacancies reserved 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 com-                E
        mission."


The tentative seniority list of the State Police Officers was circulated in
1977 wherein his name was shown three places above the name of the
original petitioner - respondent No.5 D.S. Amist by assigning a deemed           F
notional date of entry in service in the year 1964. Since respondent No.5
had joined the State Service in 1967 he was shown three places below the
appellant in the tentative seniority list of March 31, 1977. A final seniority
list was prepared and published on February 27, 1979 showing the same
position. Thereupon, one S.R. Thakur filed a Writ Petition No.280 of 1978
in the High Court of Himachal Pradesh challenging the seniority of the           G
appellant. The High Court upheld the seniority assigned to the appellant
on interpretation of the 1972 Rules and dismissed the writ petition on April
10, 1981. A letters Patent Appeal No.18 of 1981 was filed but the same also
came to be dismissed on August 9, 1985. Thus the seniority assigned to the
appellant was judicially affirmed by the High Court. After the dismissal of      H
    832                  SUPREME COURT REPORTS [1992] SUPP.1 S.C.R.

A the writ petition by the learned Single Judge but before the decision in
    LPA No.18/81, the present respondent No.5 without seeking impleadment
    in the said appeal moved a Writ Petition in the High Court in 1983 claiming
    seniority over the appellant and sought consequential reliefs. That Writ
    Petition was transferred to the Central Administrative Tribunal under
B   section 29(2) of the Central Administrative Tribunals Act, 1985 and was
    numbered T-519 of 1986. The Tribunal allowed that petition by its judg·
    ment and order dated March 5, 1987 and hence this appeal by the ag-
    grieved party.

        The other officer B.C. Negi (Respondent No.5 in the Tribunal}
C belonged to a Schedule Tribe. He appeared in the all-India combined
  competitive examination held by the UPSC in 1965 and was offered ap-
  pointment to a Grade II post in DHANI Service by letter dated January
  9, 1967 which he accepted whereupon he was appointed on probation w.e.f.
  January 20, 1967. He was confirmed as such w.e.f. September 24. 1971. He
D then reported for training at the Central Police Training College, Abu, and
  on successful completion of training he was posted as Deputy Superinten-
  dent of Police in which capacity he served till his allocation to H.P. Police
  Service w.e.f. January 25, 1971. Being a member of the Scheduled Tribe
  his service was governed by Rule 20 of DHANI Service Rules which
  provided that such appointments 'shall be subject to orders regarding
E special representation in subject to order regarding special representation
  in services for Schedule Tribes issued by the Government of the India from
  time to time'. Besides, Rules 18(c) of the H.P. Police Rules, 1973 which
  stipulated that the seniority of officers allocated under Section 40(4) of the
  Himachal Pradesh Act, 1970, whose seniority had been finalised shall
F remain unchanged. He, therefore, contended that his seniority which had
  already been determined by the application of Rule 20 read with Rule 18(c)
  could not be ahered or changed and, therefore, his inclusion in the Sel~ct
  List prepared by the Selection Committee at its· meeting of December 20,
  1982 was unassailable.

G       The State of Himachal Pradesh was established under the provisions
  of the State of Himachal Pradesh Act, 1970, w.e.f. January 25, 1971. The
  H.P. Police Service was constituted under Section 40(1} of the said Act by
  drawing personnel from the erstwhile DHANI police service. Sub-section           )


  (6) of Section 40 next provided that the rules and regulations applicable to
H the members of the erstwhile DHANI police services as in force immedi-
              S.B. DOGRA v. STATE OF H.P. [AHMADl,J.]                833

ately before January 25, 1971, shall, so far as may be, apply to the members A
of the H.P. Police Service, until altered, repealed or amended by the
competent authority. Subsequently the H.P. Police Rules, 1973 (hereinafter
called 'the 1973 Rules') came to be framed and were promulaged w.e.f.
March 13, 1973. The appellant S.B. Dogra, an ex-commissioned officer of
the Indian Army was appointed to the H.P. Police Service with effect from B
September 8, 1975. As pointed out earlier he was given national seniority
treating him as b;.ving joined in 1964. This notional year of entry has given
him an edge over D.S. Amist, which is the subject matter of controversy in
this case. Thus the H.P. Police Service comprised of (i) those member who
were allocated to this service by the Central Government under Section
40(4), (ii) those members of the erstwhile DHANI service who were C
inducted in this service after January 25, 1971 and before the 1953 Rules
were promulgated on March 13, 1973 and (iii) those members who came
to be inducted in the service after the 1953 Rules came into force. In Writ
Petition No.280 of 1978 the contention that the appellant-S.B. Dogra was
not entitled to the benefit of the 1972 Rules since he had already availed D
himself of the benefit of Army Service when he joined the Indo-Tibetan
Border Police was rejected as devoid of merit on the grouod that Rule 5(1)
of the 1972 Rules was uoambiguous and admitted of only one contention,
namely, that in the case of a person appoi.o.ted to any post or service uoder
the State Govt. against a vacancy reserved uoder Rule 3, it has to be
assumed for the purpose of his pay and seniority that he joined such post E
or s~ce at the first opportunity available to him for joining such service
after he had joined the military service or training prior to the commission.
The learned Single Jndge felt that the sub-rule assumes that in case such
a person had not joined the military service or training prior to commission,
he would have joined the service uoder the State Government earlier in F
point of time as and when the opportunilY, presented itself. The learned
Judge illustrates: 'For example. if a person joined the military service in
October 1%3 and thereafter recruitment to service took place in January
1964 for the first time, such person in case he is appointed against the
reserved vacancy to that service/post shall be assumed to have joined the
State Government in January 1964. In this view of the matter the contention G
 challenging Dogra' s seniority was rejected. The Division Bench did not
interfere with the Judgment of the learned Single Judge. This is the
backgrouod of the previous litigation to which the present D.S. Arnist and
B.C. Negi were admittedly not parties.
                                                                           H
    834                   SUPREME COURT REPORTS (1992] SUPP.1 S.C.R.

A         The decision of the Tribunal was challenged by B.C. Negi in Civil
    Appeal No. 2015 of 1987 but that appeal was withdrawn and has since been
    dismissed as such. Therefore, so far as B.C. Negi is concerned he has not
    seen it necessary to assail the Tribunal's decision in view of the subsequent
    developme1>.ts.

B
          Now so far as the case of S.B. Dogra is 9oncemed, the facts stated
    earlier clearly show that he was selected for emergency commission in the
    Indian Army in 1963 and after successfully completing the training he was
    commissioned and was appointed as Deputy Superintendent of Police/
    Company Commander in Inda-Tibetan Border Police in 1967 before his
C   absorption in the latter cadre. He joined the DHANI Service on November
    22, 1967 and after the formation of the State of Himachal Pradesh he was
    appointed against a reserved vacancy for Demobilised armed forces per-
    sonnel under the 1972 Rules (as amended in 1974) w.e.f. September 8,
    1975. By virtue ·of Sub-rule (1) of Rule 5 of the 1972 Rules he was assigned
D   a notional date of entry into service w.e.f. 1964 and this was reflected in
    the tentative seniority list circulated in March, 1977 wherein he was shown
    three places above D.S. Amist. The final seniority list published in
    February, 1979 also reflected the same position. Neither B.C. Negi nor D.S.
    Amist challenged the notional date of entry assigned to him but some of
    his juniors S.R. Thakur and others filed a Writ Petition No.280/78 in the
E   High Court of Himachal Pradesh challenging the seniority. A learned
    Single Judge of the High Court after considering the relevant rules af-
    firmed the seniority assigned to him. A Letters Patent Appeal No.18/81
    was filed by the original petitioners who were aggrieved by the decision of
    the learned Single Judge. While that appeal was pending, without seeking
F   impleadment in that appeal D.S. Arnist filed a substantive Writ Petition in
    the High Court in the year 1983 claiming seniority over both S.B. Dogra
    and B.C. Negi. Whilst this Writ Petition was pending in the High Court,
    the Letters Patent Appeal No.18/81 was dimisssed by the Division Bench
    of the High Court. The Writ Petition would perhaps have met the same
    fate had it continued to remain on the file of the High Court but on the
G   enactment of the Central Administrative Tribunals Act. 1985, by virtue of
    Section 29(2) .thereof, the Writ Petition stood transferred to the Central
    Administrative Tribunal constituted under that Act. The Central Ad-
    ministrative Tribunal while dealing with the case of S.B. Dogra placed
    strong reliance on the decision in the case of A.S. Pannar v. State of
H   Haryana & Ors., (1986) 2 SLR 741 which is also reported in KC Arora &
              S.B. DOGRA v STATE OFH.P. [AHMADI, J.]                     835

Ors. v. State of Haryana, [1984) 3 SCC 281 and concluded that an ex-ser- A
viceman can be given seniority in the civil post only for the actual period
of service rendered in armed forces during the period of emergency i.e.
between October 26, 1962 and January 10, 1968. Following the above view
of this Court the Tribunal held th~t S.B. Dogra could not be given benefit
of seniority for more than the period of his actual service in the Army         B
during the emergency. Even if he is given that benefit of four years service,
he cannot be assigned seniority over D.S. Amis!. On this line of reasoning
the Tribunal negatived the contention put forward by S.B. Dogra on the
language of Rule 5(1) of the 1972 Rules.

      The facts of A.S. Pannar's case show that following the imposition of     C
emergency in 1962 certain circulars were issued with regard to the conces-
sion to be given to civilian employees who joined military service. Acting
on the assurances given several civilian employees had joined the Army
during emergency as Commissioned officers. Subsequently the instructions
so ~sued were incorporated into rules framed under Article 309 of the           D
Constitution. The Haryana Government in the year 1969 advertised 16
posts of temporary Assistant Engineers in PWD, B & R Branch. Out of
these 16 posts 8 were reserved for ex-emergency Commissioned Officers
and servicemen. Although the adve;tisement was for 16 posts, 55 persons
were selected out of which 20 posts belonged to the reserved category of
ex-emergency Commissioned Officers. However, out of 20 posts so                 E
reserved only 7 appointments could be made. The requisite qualifications
prescribed for ex-emergency Commissioned Officers and servicemen were
(i) Diploma in Civil Engineering (ii) 5 years' continuous service with
distinguished record and (iii) adequate knowledge of Hindi. The footnote
stated "for purposes of counting 5 year's continuing service, the period        F
commenCing from October 26, 1962 will only be taken into consideration".
Again in November 1970, 38 posts were advertised of which 18 were
reserved for ex-emergency Commissioned Officers and servicemen. How-
ever, at the time of appointment, 99 persons were selected even though 90
posts belonged to the reserved category for which only 7 were appointed.
The second advertisement also contained the same qualifications as were         G
included in the first advertisement.

      The two petitioners in that case had served the Indian Army for more
than five years before they joined the Haryana Government as Assistant
Engineers against posts reserved for eX-emergency Commissioned Officers.        H
    836                   SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A The Government of Punjab had before the formation of the State of
    Haryana made statutory rules under Article 309 of the Constitution called
    the Punjab National Emergency (Concession) Rules, 1965. Rule 2 defined
    'military service' to inter alia mean enrolled or commission service in any
    of the three wings of the Indian Armed Forces rendered by a person
B   'during the period of operation of the proclamation of emergency' made
    by the President on October 26, 1962. Rule 3 provided for the relaxation
    of the requirements of age and qnalification with which we are not con-
    cerned in the present case. Rule 4(ii) which is relevant for our purpose
    provided thus:

C            "4(ii). Seniority: The period of military service mentioned
             in clause (1) shall be taken into consideration for the
             purpose of determining the seniority of a person who was
             rendered military service."

  This concession was, however, admissible on first appointment only. Rule
D 5 further provided that the period spent on military service shall count for
  seniority, promotion, increment and pension in the service or post held by
  him immediately before his joining military service. Thus the two petitioner
  became entitled to have their seniority fured according to the above rules
  on their appointment as Assistant Engineers. However, the gradation list
E prepared by the Government did not reflect the benefit of military service
  weightage as per these rules. The two petitioners alleged that the State of
  Haryana with a view to deny the benefit to them amended the rules
  retrospectively and added a proviso as under:

             'Provided that a person who has availed of concession
F            under sub-rule (3) of Rule 3 shall not be entitled to the
             concession under this clause.'

  By notification dated August 9, 1976, the definition of 'military service' was
  amended which amendment was challenged along with other grievances in
G the High Court. However, both the writ petitions were dismissed which
  gave rise to the appeal, the judgment in which case was relied on by the
  Tribunal. The core question which arose for consideration by this Court
  was whether the amended rule was constitutionally valid even though it was
  made applicable retrospectively which had the effect of taking away vested
  rights. This Court struck down the amended rule 4(ii) as well as the
H notification by which the definition of the expression 'military service' was
              S.B.DOGRA v. STATE OF H.P. [AHMADl,J.]                 837

altered. It will thus be seen that the essential question was not regarding A
the actual fixation of seniority. The note below the advertisement and the
language of the unamended definition the expression 'military service' read
with Rule 4(ii) made it clear that the service referred to was the one
rendered during the period of operation of the proclamation of emergency
made by the President under Article 352 of the Constitution on October B
26, 1962. It will become immediately apparent on a mere comparison of
the 1965 Punjab Rules, particularly the definition clause read with Rule
4(ii), with Rule 5(1) of the 1972 Rules that the language of the two rules
is not identical and while the former limits its scope to 'during the period
of operation of the proclamation of emergency', there are no such words
of limitation to be found in Rule 5(1) of the 1972 Rules nor has such an C
inference been attempted to be drawn from other provision in the 1972
Rules. The Tribunal was, therefore, in error in resting its decision on the
ratio ofA.S Parmar's case which turned on the language of the Punjab rules
applicable to Haryana which are not shown to be in pari materia with the
Himachal Pradesh rules. The Tribunal was, therefore, wrong in confining D
the benefit under rule 5(1) to the period of Dogra's actual service in the
Army during the emergency.

       Reference was made to Narendra Nath Pandey v. State of U.P., (1988]
3 sec 527 which was also a case concerning the seniority of emergency
commissioned officers or short service commissioned officers of the armed .E
forces. The case involved the interpretation of the 1973 and 1980 rules
framed under Article 309 of the Constitution for such demobilised officers.
Rule 6 of the 1973 Rules and Rule 5 of the 1980 Rules, which were in
identical terms fell for construction. We must point out that the said rules
were not in the same language as rule 5(1) of our rules. The validity of F
these rules was challenged and negatived. The only modification this Court
made was that the period for taking the examination under Rule 6 of the
1973 Rules or Rule 5 of the 1980 Rules should be restricted to 3 years,
which was considered a reasonable period, so that the long gaps between
the date of demobilisation and the date of appointment do not result in
injustice to others and do not distort the seniority arrangement to the G
detriment of others. It is, therefore, obvious that the even this case turned
on the language of the rules and the peculiar fact situation.

      On the other hand rule 5(1) of the 1972 Rules states that the seniority
of candidates appointed against the vacancies reserved under rule 3 shall H
    838                   SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A be determined 'on the assumption' that they joined service and the post
     under the State Government 'at the first opportunity' they had 'after' they
    joined military service or training prior to commission. The lauguage of this
     rule is, therefore, altogether different from the language of the Haryana
     rules on which A.S. Parmar's case was decided. Now on the construction
B   of this rule 5(1), the seniority assiirned to Dogra was three places above
    Amist in the tentative seniority list circulated in March 1977 which came
    to be finalised in February 1979. No objection was raised by Amist regard-
    ing the placement given to Dogra in the seniority list. Some other junior
    officers had challenged it in the High Court but without success. Amist
    challenged it for the first time in 1983 after his name was dropped from
C   the Select List of 1982. Had the writ petition been disposed of before the
    Central Administrative Tribunals Act, 1985, came into force, it would
    perhaps have met the same fate of dismissal as Writ Petition No.280n8 and
    L.P A No.18/81. But that apar~ the Tribunal ought not to have disturbed
    the seniority after such a long lapse of time when Amist had not challenged
D   it before the same was finalised in February 1979. Amist should have
    challenged Dogra's placement in the seniority list which was circulated in
    March 1977 inviting objections before it was finalised. If he .had no objec-
    tion then it is obvious that he challenged it in 1983 only because his name
    was dropped from the Select List of 1982. In the circumstances, the
E   Tribunal should have been slow in interfering the seniority which was
    holding the field for the last several years. That is the view expressed by
    this Court in State of Madhya Pradesh & Anr. v. Rameshwar Prasad & Ors.,
    [1976] 2 sec 37. In that 'case the seniority was fixed according to the length
    of service in regard to the classified officers and the grades held by those
    officers. No objection wa~ flied by the respondent to the provisional
F   gradation list so prepared. He filed· an objection only after the final
    gradation list was published. Contending that the services rendered by the
    Madhya Bharat and Vindhya Pradesh officers prior to the coming into
    force of the Sales Tax Acts in the respective states should not have been
    counted for the purpose of determining the seniority of the respondent.
G   The High Court allowed the belated representation and hence the matter
    was brought before this Court in appeal. This Court held that after the
    reorganisation of the States it was obligatory to prepare a common grada-
    tion list of the officers of the various departments so that the officers who
    were allocated to the new State did not suffer any prejudice. For that a
H   tentative or provisional gradation list was directed to be prepared with a
              S.B. DOGRA v. STATE OF H.P. [AHMADI, J.]                   839

view to giving an opportunity to the officers whose seniority was deter- A
mined in the list to make their representations in order to satisfy the
Government regarding any mistake or error that may have crept in. If the
employee concerned did not file his representation within the period
prescribed after the date of the publication of the provisional gradation
list, then his representation should have been rejected outright. It is er- B
roneous to contend that the employee concerned should have waited for
filing his representation or objection until the final gradation list was
published. Therefore, the representation filed by the respondent long after
the expiry of the time mentioned in the Gazette publishing the provisional
gradation list was rejected as belated. The observations made in this
judgment apply with all force to the fact situation in the case before us.  C
      For the reasons stated above this appeal by special leave filed by S.B.
Dogra must be allowed with costs. We allow the said appeal and set aside
the impugned order of the Tribunal insofar as it relates to the seniority of
the appellant S.B. Dogra and restore the position as was obtaining before
his seniority came to be disturbed by the impugned order of the Tribunal.       D
Consequential orders, if made by the respondents Nos. 1 and/or 2 i.e. the
State of Hirnachal Pradesh and the Union of India, pursuant to the
Tribunal's directives, in relation to the appellant S.B. Dogra shall also be
revised in the light of the findings recorded in this behalf hereinbefore.
Liberty to the parties to seek further directions, if need be, from the         E
Tribunal in regard to the full implementation of this Judgment.

N,V.K.                                                      Appeal allowed.