H.S. ATWAL AND ORS. versus UNION OF INDIA AND ORS.

Citation: [1994] SUPP. 2 S.C.R. 319 · Decided: 27-07-1994 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed

Judgment (excerpt)

H.S. ATWAL AND ORS. 
A 
v. 
UNION OF INDIA AND ORS. 
JULY 27, 1994 
[KULDIP SINGH AND B.L. HANSARIA, JJ.] 
B 
Seivice Law-Demobilised Indian Am1ed Forces Personnel (Rese1va-
tion of Vacancies) in the Himachal Pradesh Administrative Rules 1974--Rule 
4( 1)-lnterpretation of-Fixation of Senioril)-A member of anned forces 
covered by Rules-No opportunity of entering State Administrative Seivice C 
available during period of military seivice-!oinedAdministrative Seivice after 
demobilisation-Period of military seivice for purpose of seniority-Counting 
of-Wltether pennissible. 
The appellant bad joined the army sometime in 1963 and left it in 
1968. Later joined the Himacbal Pradesh Administrative Service in 1975. D 
The first examination which had been conducted to enable any person to 
join the State Administrative Service was In 1973. Appellant was denied 
benefit of period of military service rendered by him for the purpose of his 
seniority on the ground that no opportunity of entering Administrative 
Service had become available to him during the period of bis military E 
Service. The State Administrative Tribunal rejected the claim. Appeal bas 
been fded challenging order of Tribunal. 
On the question whether a member of armed .forces covered by the 
Rules would get the benefit of period of military service rendered by him 
for the purpose of bis seniority irrespective of the fact that while under F 
military Service be did not get any opportunity to enter the Administrative 
Service which such a member bad joined after demobilisation; 
Dismissing the appeals, this Court 
HELD : 1.1. When a fiction is created by a legal provision, it cannot G 
be carried beyond the purpose for which It bas been created. [324-D] 
K.S. Dhannadatan v. Central Govt., [1979] 4 SCC 204, relied on. 
1.2. As the benefit of the military service for the purpose of seniority 
has been hedged by a condition and as the condition got satisfied in the H 
319 
320 
SUPREME COURT REPORTS (1994( SUPP. 2 S.C.R. 
A 
instant case only in 1973, the period of military service between 1963 and 
1968 was not required to be reckoned to determine the seniority of the 
appellant. The purpose for which the sub rule (I) was made does not 
require giving of benefit in question even if the condition mentioned in the 
sub-rule is not satisfied. The condition imposed is reasonable and suffi. 
ciently compensates the members of the armed forces for the contribution 
B made by them to protect the country during the external aggression, of 
1962. [324-E·Fl 
1.3. The sub-rule, as it is, tends to show that the opportunity in 
question should have become available to the incumbents during the period 
C of their military service. This was not so in the present case. It may thus be 
that the entire sub-rule became non-operational on this ground as well. It 
has to be seen whether in such a situation it would be open to this Court to 
give the benent of period of military service regardless of what has been 
stated in the sub-rule because of the services rendered by the appellants 
when our country was in distress. Law does not permit to do so because the 
D well settled legal principle is that In the absence of rule or executive instruc· 
lion Indicating the manner In which inter-seniority has to be fixed, it Is 
length of service which is the basis for fixing the same. [324·H, 325·A·Bl 
Khusbash Singh v. State of Punjab, [1981) 2 SLR 576; D. Rama Rao, 
v. State of A.P., AIR (1988) SC 857 and Union of India v.Ansusekhar Guin, 
E AIR (1989) SC 377, relied on. 
S.B. Dogra v. State of H.P., [1992] 4 SCC 455; Union of India v. S. 
Krishna Murthy, [1989] 4 SCC 689; K.C. Arora v. State of Haryana, [1984] 3 
SCC 281 and Narendra Nath Pandey v. State of U.P., [1988] 3 SCC 527 
F distinguished. 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1654-55 
of 1990. 
From the Judgment and Order dated 22.12.89 of the Himachal 
Pradesh Administrative Tribunal in T.A. No. 263/86 and 92 of 1987. 
Rajinder Sachhar, Rajiv Dutta and Vipin Nair for the Appellants. 
N.N. Goswamy, K. Madhava Reddy, Y.P. Mahajan, P.Parmeswaran, 
H.S. Munjral and Kawaljeet Kochhe, for J.D.Jain for the Respondents. 
H 
The Judgment of the Court was delivered by 
H.S.ATWAL v. U.0.1.fHANSARIA,J.] 
321 
HANSARIA, J. The "spinal issue" (which is the expression used in A 
the impugned judgment of the Administrative Tribunal) in these appeals 
is relatable to the interpretation of rule 4 (1) of Demobilised Indian Arme

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