CWP No.4144 of 1990 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4144 of 1990 (O&M) Decided on : 26.11.2010 Krishan Singh ... Petitioner versus State of Haryana ... Respondent CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. S.K.Chauhan, Advocate for the petitioner. Mr. D.S.Nalwa, Addl. AG, Haryana for the respondents. **** AUGUSTINE GEORGE MASIH, J.(ORAL) Prayer in the present writ petition is for grant of emergency service benefit of the period during which the petitioner has served as Constable in the Indian Army. It is the contention of the petitioner that the petitioner joined the Indian Army as Constable on 12.12.1961 and after serving the Defence Force to the entire satisfaction of his superiors, he was discharged on 22.12.1984. The President of India had declared National Emergency in the country during the period 26.10.1962 to 10.01.1968. The petitioner after his discharge from Army was appointed as Peon- cum-Chowkidar in RVA Branch, 4th Floor, Haryana Civil Secretariat at Chandigarh. He joined the post on 27.01.1985. The petitioner made a representation to the Chief Secretary, Govt. of Haryana dated 17.11.1989/23.11.1989 (Annexue P-5/T) for grant of emergency service benefit, which he had rendered in the Army, for which he is entitled to under Punjab Government National Emergency Concession CWP No.4144 of 1990 (O&M) -2- Rules, 1965 (hereinafter referred to as Rules, 1965). On consideration of the representation, the same was rejected by the State of Haryana vide order dated 15.01.1990 (Annexure P-6) on the ground that the benefit of Military Service cannot be given to the petitioner because he had enrolled in the Army before 26.10.1962. It is this order, which has been challenged by the petitioner through present writ petition. In the written statement filed by the State of Haryana it has been stated that the petitioner is not entitled to the benefit of military service under Rules, 1965 as amended rules make it clear that concession would apply in the case of all persons who had joined or join military service during the Emergency. As the petitioner had joined prior to the declaration of Emergency, he is not entitled to any benefit. Learned counsel for the petitioner contends that the discrimination has been meted out to the petitioner on the ground that the petitioner had joined military service prior to the proclamation of the Emergency which is arbitrary and discriminatory. The benefit under Rules, 1965 has been extended to those persons who had joined during the war and had served the military during the proclamation of the emergency. The counsel contends that no distinction can be made on the basis of joining the service prior to the declaration of emergency or before that. He on the basis of his service during the emergency period claims that he is entitled to the benefits of emergency service. In support of all these contentions, learned counsel for the petitioner has relied upon the Full Bench judgment of this Court in Jang Singh & others vs. State of Punjab and others, 1997(5) SLR 308 as also the Hon'ble Supreme Court in Ex. Capt. K.C.Arora and another vs. State of Haryana and others, 1984(2) SLR 97. CWP No.4144 of 1990 (O&M) -3- On the other hand learned counsel for the respondents has submitted that after the amendment in the definition of the expression “military service” in the Rules, 1965 on 09.08.1976 , according to the last amendment in the definition of the expression Military Service, the petitioner is not entitled to the benefit as claimed by him in the present writ petition. He further contends that the judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of the case in hand as firstly, in the case of Jang Singh's case (supra) the rules which have been interpreted and taken note of by the Full Bench were pertaining to the State of Punjab where no amendment in the expression military service has been brought about by the State. Further, the judgment of the Hon'ble Supreme Court in Ex. Capt. K.C.Arora's case (supra) was a judgment wherein it has been held that the amendment would be operative prospectively and not with retrospective effect and thus, the claim which has been made by the petitioner on the basis of these judgments is misconceived. He relies upon the judgment of the Hon'ble Supreme Court in Dhan Singh and others vs. State of Haryana and others, 1991(1) SLR 200 to contend that the vires of the rules have been upheld by the Hon'ble Supreme Court and it has been held that the rules are not discriminatory or arbitrary. He contends that the case of the petitioner is covered by the aforesaid judgment of the Hon'ble Supreme Court and no benefit can be granted to him. I have heard learned counsel for the parties and gone through the record of the case. The deciding factor in the present case would be the date on which the petitioner had joined military service i.e. 12.12.1961 whereas the emergency was declared by the President CWP No.4144 of 1990 (O&M) -4- of India from 26.10.1962 to 10.01.1968 meaning thereby that the petitioner had joined military service prior to the declaration of the National Emergency. The petitioner as per the definition as it existed on the date when he was discharged from military service on 22.12.1984 and on the date of his appointment as Peon-cum- Chowkidar in RVA Branch, 4th Floor, Haryana Civil Secretariat at Chandigarh, reads as follows: “2. Definition: For the purpose of these rules the expression military service means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made by the President under Article 352 of the Constitution of India on October 26, 1962 in any of the three wings of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said emergency or such other service as army hereafter be declared as military service for the purpose of these rules. Any period of military training followed, by military service shall also be reckoned as military service.” As per the above definition, the petitioner would not be entitled to the benefit of emergency service as claimed by him under the Rules 1965. The amendment brought in the Rules , 1965 has also been upheld in Dhan Singh's case(supra) by the Hon'ble Supreme Court. The claim of the petitioner is covered against him by the said judgment. The judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case as in the case of Jang Singh, rules were not to be interpreted retrospectively as it pertained to the State of Punjab. In the case of Ex. Capt. K.C.Arora (supra) rules were the same but the only decision given by the court was that the rule cannot have a retrospective effect. Hon'ble Supreme CWP No.4144 of 1990 (O&M) -5- Court in the case of Dhan Singh(supra) considered the judgment in the case of Ex.Capt. K.C.Arora and in paras 9 to 12 held as follows: 9. It has been contended that the amendment confining the military service for those who joined during the operation of emergency between 26.10.1962 and 10.1.1968 and denying the same benefit of service to those who joined prior to the proclamation of the emergency is unreasonable and arbitrary based on no classification and thus violative of Article 14 of the Constitution of India. It is said that there is no rationale behind the definition of 'military service' by excluding the military pesonnel who also service during the emergency period. It is said that the differentiation is on the date of recruitment and the classification on the basis of date of recruitment is unreasonable and unconstitutional and violative of Article 14 of the Constitution. The appellants stated that the ex- servicemen who joined the army during the emergency and persons like the appellants who have joined the common stream of service to perform the same duties form one class and it is not permissible to make any classification on the basis of their origin. Such classification will be unreasonable and entirely irrelevant to the object sought to be achieved and the classification is not founded on any intelligible differentia according to the appellants. It is submitted that those who served during the proclamation of the emergency constitute one class in itself as far as duties, powers, privileges and period of service during the emergency are concerned and the differential treatment meted out to the personnel who joined earlier and were released later amounts to the denial of equal opportunity in the matter of employment, and, thus violates Article 16. The differentia on the basis of amending rules has no nexus to the objective sought to be achieved, it is argued. 10. We do not agree. The State could amend the 1965 Rules and withdraw the concession in exercise of the CWP No.4144 of 1990 (O&M) -6- power conferred under Article 309 of the Constitution. It is open to the State to lay down any rule for determining seniority in service and the Court cannot interfere unless it results in inequality of opportunity among the employees belonging to the same class. When a rule is challenged as denying equal protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation or inequality of protection does not per se amount to discrimination within the inhibition of equal protection clause under Article 14. To attract the attention of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the Legislature has in view. The Court has to examine whether the classification can be deemed to rest upon differentia discriminating the persons or things grouped from those left out and whether such differentia has a reasonable relation to the objects sought to be achieved irrespective of whether the rules intended to apply to person or thing or to a certain class of persons or things. Therefore, the policy or the object of the legislation are relevant consideration. 11. On account of external aggression by the Chinese forces in the India territory, the emergency was imposed by the President of India in 1962. In order to attract young men to join military service at that critical juncture, the Central Government and the State Governments issued different circulars and advertisements on the radio and in the press promising certain benefits to be given to those young men who join the military service. 12. The young persons who have joined the military service during the national emergency and those who were already in service and due to exigencies of service had been compelled to serve during the emergency from two CWP No.4144 of 1990 (O&M) -7- distinct classes. The appellants and the petitioners who joined the army before the proclamation of emergency, had chosen the career voluntarily and their service during emergency was as a matter of course. They had no option or intention of joining the government service during the period of emergency as they were already serving in the army. The persons who enrolled or commissioned during the emergency, on the other hand, had on account of the call of the nation joined the army at that critical juncture of national emergency to save the motherland by taking a greater risk where danger to the life of a member of the armed was higher. They include persons who could have pursued their studies, acquired higher qualification and joined a higher post and those who could have joined the government service before attaining the maximum age prescribed and thereby gained seniority in the service. Forgoing all these benefits and avenues, they joined the army keeping in view the needs of the country and assurances contained in conditions of service in executive instructions. The latter form a class by themselves and they cannot be equated to those who joined the army before the proclamation of the emergency. Benefits had been promised to such persons who needed to the call of the nation at that critical juncture. Older man by joining the military service lost chance of joining other Government service and when joins such service on release from the army younger man had already occupied the post. To remove the hardship, the benefit of military service was sought to be given to those young persons who were enrolled/Commissioned during the period of emergency forgoing their job opportunities. The differentia is, therefore, intelligble and has a direct nexus to the objects sought to be achieved. The petitioners cannot, therefore, challenge the rule as discriminatory or arbitrary. Such of those appellants and the petitioners who have joined the army before the proclamation of the emergency are not, CWP No.4144 of 1990 (O&M) -8- therefore, entitled to the benefit of military service as per the Emergency Concessions Rules. The petitioner's case is fully covered by the judgment of the Hon'ble Supreme Court in the case of Dhan Singh(supra) and therefore, no benefit can be granted to the petitioner. In view of the above, I do not find any merit in the case and dismiss the same accordingly. November 26, 2010 (Augustine George Masih) sonia Judge