Safiya Malik

The High Court of Uttarakhand Division Bench of Justice Manoj Kumar Tiwari and Justice Subhash Upadhyay held that Clause 8 of the Government Order dated 22.05.2020, issued by the Additional Chief Secretary, Government of Uttarakhand, was liable to be set aside. The court directed that the clause, which restricted the benefit of ex-servicemen status to only one instance of re-employment in State services, was inconsistent with the statutory provisions of the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as applicable in Uttarakhand. The bench stated that such a restriction could not be imposed through executive instructions and could only be achieved by amending the legislation. The writ petition challenging the clause was allowed, and the impugned provision was quashed.

The petitioner, an ex-serviceman who retired from the Indian Army as a Hawaldar on 31.01.2014 and was in receipt of a service pension, was subsequently appointed as an Assistant Teacher in a Government Primary School under a post reserved for ex-servicemen. The dispute arose from Clause 8 of the Government Order dated 22.05.2020, which adopted the policy outlined in the Central Government's Office Memorandum dated 02.05.1985. The memorandum stated that once an ex-serviceman secured a government job after availing benefits for re-employment, he would cease to be considered an ex-serviceman for the purposes of future re-employment.

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The petitioner challenged Clause 8, asserting that the State Legislature had enacted the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, which provided reservation benefits to ex-servicemen without imposing any such restriction. The Act was applicable to Uttarakhand, and the definition of "Purva Sainik" in Section 2(c) did not exclude those already employed under the State or Central Government. The petitioner argued that the benefits conferred under the Act could not be curtailed by executive instructions.

The State, represented by the learned Deputy Advocate General, argued that defence personnel are Central Government employees and that the State had rightly adopted the Central policy restricting the benefit to a single instance of re-employment. The State relied on precedents from the Delhi High Court interpreting the 1985 Office Memorandum.

The bench noted that the cited Delhi High Court cases dealt only with the Central Government memorandum and not with any legislation. It recorded that under the 1993 Act, as applicable in Uttarakhand, there was no provision restricting the number of times an ex-serviceman could avail reservation benefits. The classification created by Clause 8 between those who had not yet secured State employment and those already employed was not supported by the statutory definition of "Purva Sainik" and was therefore discriminatory.

The court observed, "There is no provision, either in the definition clause or in other Sections of the Act, which excludes a person from benefits of the Act merely because he secured appointment in State Service with or without the benefit available to ex-servicemen." It further stated, "As per Scheme of the Legislation, an ex-servicemen will remain so, even after getting employment under the State or the Central Government after availing the benefits meant for ex-servicemen."

It recorded, "When the Legislation does not impose any restriction regarding the number of times benefit can be availed by ex-servicemen, then such restriction cannot be imposed by executive instructions. Law is settled that executive instruction can only supplement the Statute but cannot supplant statutory provisions."

The court also referred to the settled position that when the field is covered by statute, government cannot issue instructions contrary to its express provisions. Citing Supreme Court precedents, it noted, "Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State... A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions."

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The bench found that Clause 8 suffered from the "vice of artificial classification" as the legislation did not permit classification of Purva Sainik based on re-employment status. It stated, "The classification made by State Government between those who are yet to be appointed vis-à-vis those who are employed by or under the Government, by executive instructions, cannot but be castigated as discriminatory."

The court held that Clause 8 of the Government Order dated 22.05.2020 was inconsistent with the statutory provisions of the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, as applicable in Uttarakhand. It directed that the clause was liable to be set aside, stating, "Clause 8 of the Government Order dated 22.05.2020 is liable to be set aside and is hereby set aside." The writ petition was accordingly allowed.

Advocates Representing the Parties:

For the Petitioner: Mr. Vikas Bahuguna, Advocate

For the Respondents: Mr. K.N. Joshi, Deputy Advocate General for the State of Uttarakhand

Case Title: Dinesh Chandra Kandpal vs State of Uttarakhand & another

Neutral Citation: 2025: UHC:6606-DB

Case Number: Writ Petition Service Bench No. 491 of 2021

Bench: Justice Manoj Kumar Tiwari, Justice Subhash Upadhyay