Uttarakhand High Court
29 July vs State Of Uttarakhand & Another on 29 July, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:6606-DB
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Service Bench No. 491 of 2021
29 July, 2025
Dinesh Chandra Kandpal ... Petitioner
Versus
State of Uttarakhand & another ... Respondents
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Presence:-
Mr. Vikas Bahuguna, Advocate for the petitioner.
Mr. K.N. Joshi, learned Dy. A.G. for the State of Uttarakhand.
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Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.
(Per: Hon'ble Manoj Kumar Tiwari, J.)
JUDGMENT
1. Petitioner was enrolled in Indian Army as Sepoy
and he retired from service as Hawaldar on 31.01.2014. He
is receiving service pension from Indian Army; thus, he is
an ex-serviceman. After retirement from Indian Army,
petitioner was appointed as Assistant Teacher in a
Government Primary School on a post reserved for ex-
servicemen, and presently, he is an employee of State
Education Department.
2. Petitioner is challenging Clause 8 of Order dated
22.05.2020 issued by Additional Chief Secretary,
Government of Uttarakhand, which is extracted below:-
“HkwriwoZ lSfudksa dks jkT;k/khu lsokvksa esa lsok;kstu ds lUnHkZ esa Hkkjr ljdkj ds
O.M. No. 36034/27/84-Estt. (SCT) dated 02.05.1985, it was
decided that once an ex-serviceman has joined the
Government job on civil side after availing of the benefits
given to him as an ex-serviceman for his re-employment,
his ex-serviceman status for the purpose of re-employment
in Government would cease.” dk izkfo/kku jkT;k/khu lsokvksa esa ykxw
fd;k x;k gSA vr,o jkT;k/khu lsok laoxksZ esa lsok;kstu gsrq Hkkjr ljdkj dh
uhfr ds vuqlkj {kSfrt vkj{k.k dh x.kuk dh tk;sxhA**1
2025:UHC:6606-DB
3. Clause 8 of the Government Order dated
22.05.2020, impugned herein, refers to an Office
Memorandum issued by Central Government on
02.05.1985. The said Office Memorandum provides that
benefit of ex-servicemen status would be available only
once and if an ex-serviceman gets civil employment due to
his ex-servicemen status, then he shall not be entitled to
such benefit again.
4. By order dated 22.05.2020, Government of
Uttarakhand adopted the Central Government Policy, as
contained in Office Memo dated 02.05.1985 for State
services also, meaning thereby that once appointed in a
State service, ex-servicemen cannot get the benefit
available to ex-servicemen in the selection for some other
post under the State.
5. Petitioner has challenged the condition
mentioned in Clause 8 of Government Order dated
22.05.2020 on the ground that as a State Legislation is in
place which provides reservation to ex-servicemen in State
Services, therefore, benefit available to them under the said
Legislation cannot be restricted or taken away by the State
Government, by a Government Order.
6. It is not in dispute that State Legislature enacted
The Uttar Pradesh Public Service (Reservation For Physically
Handicapped, Dependents of Freedom Fighters and (Ex-
Servicemen) Act, 1993 (from hereinafter referred to as
“Act”), which was amended from time to time. The said
Legislation is applicable in State of Uttarakhand also. The
expression “Ex-Servicemen”, used in the aforesaid
Legislation, was substituted by the expression “Purva
Sainik” by Uttarakhand Act No. 3 of 2009 w.e.f.
16.03.2009.
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7. Section 2(c) of the Act defines “Purva Sainik”, as
follows:-
“2(c) Purva Sainik” means domicile of Uttarakhand who has
served in Indian Army, Navy or Air Force as fighter or non-
fighter and who has-
(1) retired from such service after earning their pension; or
(2) who has been released from such service on medical
grounds as required for military service or has been
released under such circumstances beyond his control and
who has been given medical or other eligibility pension; or
(3) who has been released on account on resignation in
establishment of such service and not on his own request;
or
(4) who has been released from such service after
completing a specific period but has not on his own request,
or has not been terminated or removed from service
because of misconduct or inefficiency and who has been
paid gratuity, and includes following categories of Territorial
Army personnel are also:-
(i) Those receiving pension for continuous organized
service.
(ii) Medically unfit due to military service.
(iii)Those who received bravery award.”
8. Section 3(1)(i) provides reservation in State
Services to the extent of 5 percent of vacancies to Purva
Sainik, besides 2 percent reservation to dependants of
Freedom Fighters. Section 3(1) of the Act is reproduced
below:-
“3 Reservation of vacancies in favour of physically
handicapped etc.
(1) In the procedure for direct recruitment the
reservation shall be as follows:-
(i) In public services posts 2% of the vacancies for
dependents of freedom fighters and 5% of the
vacancies for Purva Sainik.
(ii) In public services and posts as may be notified
through notification by State Government, 1% of the
vacancies for each suffering from the following:-
(a) Blindness or low vision;
(b) Hearing impairment;
(c) Locomotor disability or cerebral palsy.”
9. The expression “Purva Sainik”, as defined in
Section 2(c) of the Act leaves no room for doubt that (i) a
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domicile of Uttarakhand, who served in Indian Army, Navy
or Air Force and who retired from such service, after
earning pension; (ii) or released from service on medical
grounds or who was released under circumstances beyond
his control and was given medical or other eligibility
pension; (iii) or who was released from service for reasons
other than his own request (iv) or who was released from
service after completing a specific period for reasons other
than termination or removal from service and who was paid
gratuity, is a Purva Sainik or Ex-servicemen. Thus, the
expression “Purva Sainik”, as defined in the aforesaid Act,
includes every person who falls in any of the four categories
enumerated in Section 2(c) of the Act.
10. 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. 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.
11. Learned counsel for the petitioner is right in
submitting that the benefits conferred to ex-servicemen by
a State Legislation cannot be taken away by executive
instructions issued by the Government and the objective
which State Government is trying to achieve can be
achieved only by amending the Legislation.
12. From plain reading of Section 2(c) and Section
3(1)(i) of the Act, it is apparent that a “Ex-servicemen”
does not cease to be ex-servicemen merely by accepting
employment under the State/Central Government. He4
2025:UHC:6606-DB
retains his status of ex-servicemen, even after availing the
benefit meant for ex-servicemen, in a selection. In other
words, 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.
13. Mr. K.N. Joshi, learned Deputy Advocate General
contended that Army, Navy and Air Force personnel are
employees of the Central Government, defence being Union
Subject, and since Central Government has formulated
policy to give benefit of ex-servicemen status for re-
employment only once, therefore, State Government did
the right thing by following the policy of the Central
Government. He relies upon a judgment rendered by
learned Single Judge of Hon’ble Delhi High Court in the case
of All India Ex-Serviceman Bank Employee’s Federation
(Regd.) vs. The Chairman, State Bank of India & others,
reported in 2013 SCC OnLine Del 1533.
14. In the said judgment, Hon’ble Delhi High Court
was considering the Office Memo dated 02.05.1985, issued
by Central Government, which provided that
relaxation/benefit in the matter of re-employment to ex-
servicemen would be available only once. Careful perusal
of that judgment reveals that Hon’ble Delhi High Court was
not dealing with any Legislation, but it was called upon to
interpret the Office Memorandum issued by Central
Government in 1985. The facts here are entirely different.
We are concerned with a Legislation which provides
reservation to a ex-servicemen and it does not impose any
restriction regarding number of times benefit of ex-
servicemen status can be availed of by a person. State
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Government, by issuing executive instructions, is trying to
interfere with that right available to ex-serviceman. Thus,
the said judgment is distinguishable on facts.
15. Learned State Counsel relied upon another
judgment rendered by learned Single Judge of Hon’ble Delhi
High Court in the case of Kavinder Singh Vohra vs. Lok
Sabha Secretariat & another, reported in 2024 SCC Online
Del 4888. In the said case also, Hon’ble Delhi High Court
was considering Office Memo dated 02.05.1985 issued
by Central Government, whereby benefit available to ex-
servicemen, for seeking re-employment, was restricted in
the context of selection for appointment under the Central
Government.
16. In the absence of any Central Legislation
providing benefits to ex-servicemen, Office Memo dated
02.05.1985, issued by Central Government, held the field.
Here, facts are entirely different, as in State of
Uttarakhand, there is a Legislation providing reservation to
ex-servicemen, and without amending that Legislation,
benefits available to ex-servicemen, cannot be curtailed.
Under the Act, Ex-servicemen form a homogeneous class
and they cannot be further classified as State Government
has attempted to do.
17. It is settled position in law that when the field is
covered by Statute, then Government cannot issue any
instructions contrary to the express provisions of the
Statute. A purported policy decision, issued by way of
executive instruction cannot override the Statute or
Statutory Rules, as held by Hon’ble Supreme Court in the
Case of State of Orissa & others vs Prasana Kumar Sahoo,
reported in 2007 (15) SCC 129. Para 12 of the said
judgment is extracted below:-
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“12. 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 either in terms of
a legislative Act or the proviso appended to Article 309
of the Constitution of India. A purported policy decision
issued by way of an executive instruction cannot
override the statute or statutory rules far less the
constitutional provisions.”
18. In the case of Union of India & another vs
Dimple Happy Dhakad, reported in 2019 (20) SCC 609,
Hon’ble Supreme Court in para 29 reiterated that “it is well-
settled principle that any executive instruction like the
guidelines cannot curtail the provisions of any statute or
whittled down any provision of law”.
19. Hon’ble Supreme Court in the case of State of
Madhya Pradesh & another vs. M/s G.S. Dall and Flour Mills
reported in 1992 Supp. (1) SCC 150 has held that
“executive instructions can supplement a statute or cover
areas to which the statute does not extend. But they cannot
run contrary to statutory provision or whittle down their
effect.”
20. Similarly, in the case of Jaiveer Singh & others
vs. State of Uttarakhand & others, reported in 2023 SCC
OnLine SC 1584, Hon’ble Supreme Court has held as
under:-
“49. It can thus be seen that it is a trite law that the
Government cannot amend or supersede statutory
rules by administrative instructions, but if the rules are
silent on any particular point, it can fill up the gaps and
supplement the Rules and issue instructions not
inconsistent with the rules already framed. It is a
settled proposition of law that an authority cannot issue
orders/office memorandum/executive instructions in
contravention of the statutory rules. However,
instructions can be issued only to supplement the
statutory rules but not to supplant it.”
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21. Clause 8 of Government Order dated 22.05.2020
suffers from vice of artificial classification. Legislation,
which covers the field, does not permit classification of
Purva Sainik (Ex-servicemen) based on their re-
employment status. The definition, as given in the Act,
includes all persons within the fold of “Purva Sainik”, who
fall in any one of the four categories enumerated in Section
2(c) of the Act. Thus, 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. It is settled position in law
that executive instructions cannot run counter to a
Legislation dealing directly on the subject.
22. In view of the legal position as discussed above,
Clause 8 of the Government Order dated 22.05.2020 is
liable to be set aside and is hereby set aside. The writ
petition is accordingly allowed.
_______________________________
MANOJ KUMAR TIWARI, J.
____________________________
SUBHASH UPADHYAY, J.
29.07.2025
Aswal
NITI RAJ
Digitally signed by NITI RAJ SINGH ASWAL
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08
SINGH ASWAL
d1369512ea30f3, postalCode=263001, st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F
4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL
Date: 2025.08.04 21:29:36 -07’00’
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