Civil Writ Petition No. 15721 of 1990 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No. 15721 of 1990 Date of decision: 16.11.2010 Tej Ram working as Driver in the office of Director Agriculture Haryana, Chandigarh. ..... Petitioner. Versus 1. State of Haryana through the Secretary to Government Haryana, Agricultural Department, Haryana Civil Secretariat, Chandigarh; 2. Director Agriculture, Haryana, Sector 17, Chandigarh. ..... Respondents. CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL Present:- Mr. I.D. Singla, Advocate for the petitioner. Mr.Sukhwinder Singh Nara, Sr.DAG, Haryana, for the respondents-State. M. Jeyapaul, J(Oral). The petitioner seeks to quash the impugned proceedings issued by the 1st respondent on 03.09.1987 dis- entitling him from military service benefit on the ground that he became regular employee in the service only after the issuance of the notification dated 04.08.1976. Civil Writ Petition No. 15721 of 1990 -2- 2. The petitioner joined the military service on 14.02.1957 and having served during the operation of the proclamation of emergency w.e.f. 26.10.1962 to 10.01.1968 and retired therefrom on 16.05.1973. Thereafter, he joined the service of the 1st respondent as Driver w.e.f. 21.05.1973 on Adhoc basis. Thereafter, his service was regularised. 3. The Chief Secretary to the Government of Haryana issued instructions on 04.08.1986 conferring military service benefits to those, who retired from service during the period of emergency, though they joined service prior to the proclamation of emergency. The petitioner placed his claim on the basis of instructions, issued by the respondents. The 1st respondent declined to confer the military service benefits to the petitioner vide the impugned proceedings. The petitioner has therefore preferred the present writ petition. 4. The learned Counsel appearing for the petitioner would submit that the petitioner is entitled to military service benefit under the Punjab Government National Emergency (Concessions) Rules, 1965, even though he joined service prior to the proclamation of emergency, as per the amended notification issued after the pronouncement of judgment by the Supreme Court in Ex-Capt. K.C. Arora and another v. State of Haryana and other. It is his further submission that neither Rule 4(i) of the said Rules,1965 nor the clarification issued by Civil Writ Petition No. 15721 of 1990 -3- the respondents after the pronouncement of the above judgment by the Supreme Court specifically refers to the regular service of an employee as a condition precedent to avail the benefit. It simply refers to a “ service or post” to which an employee is appointed after he rendered military service to avail the benefit under the said Rules. Therefore he would submit that the impugned order is mis-conceived and the same is liable to be quashed. 5. In contrast, the learned Deputy Advocate General, appearing for the respondents-State referring to the decision of the Supreme Court in Dhan Singh and others v. State of Haryana and others 1990(2) Scale 1216 would submit that only those employees, who had been earlier rendered or commissioned in the military service during the national emergency are entitled for the benefits of the Punjab Government National Emergency (Concessions) Rules, 1965. Referring to the impugned order passed by the respondents, he would further submit that the petitioner is not entitled to military service benefit as his service was regularized only after the amendment was effected following the judgment in Ex- Capt. K.C. Arora's case. 6. There is no dispute to the fact that the petitioner joined military service w.e.f. 14.02.1957. The national emergency was in operation from 26.10.1962 to 10.01.1968. Civil Writ Petition No. 15721 of 1990 -4- Having served as military personnel during the said period of national emergency, the petitioner retired therefrom on 16.05.1973. It is an admitted position that the petitioner joined the service as Driver under the respondent-State w.e.f. 21.05.1973 on Adhoc basis and thereafter his service was regularised. 7. The expression 'military service' has been defined in Rule 2 of the Punjab Government National Emergency (Concessions) Rules, 1965. As per the said definition, military service means the service rendered by a military personnel during the period of operation of the proclamation of the emergency made by the President on 26.10.1962. In other words, the original meaning under Rule 2 of the said Rules is found to be very broader and in fact it encompasses the service of the military personnel during the period of emergency even such a personnel had joined the service prior to the proclamation of emergency. In other words the said definition does not impose any restriction that a military personnel who joined the military service during the period of proclamation of emergency alone is entitled to the benefits of military service. But the said definition was substituted by the notification issued by the 1st respondent on 04.08.1976. As per the substituted definition, the expression military service means the service rendered by a person who had been enrolled or Civil Writ Petition No. 15721 of 1990 -5- commissioned only during the period of operation of the proclamation of the emergency made by the President on 26.10.1962. In other words the said restricted meaning keeps away the military personnel who had entered into service prior to the proclamation of the emergency though they had served during the operation of the proclamation of the emergency. To get the benefits, the military personnel should have been enrolled or commissioned only during the period of proclamation of the emergency as per the aforesaid modified definition. 8. It is also pertinent to note, the aforesaid modified definition is deemed to have come into force on 01.11.1966, though the notification which brought about a sweeping change was issued only on 04.08.1976. 9. The Supreme Court in Ex-Capt. K.C. Arora and another vs. State of Haryana and others and Ex-Capt. A.S. Parmar and others vs. State of Haryana and others (1984) 3 Supreme Court Cases 281 has held as under:- “ In view of this latest pronouncement by the Constitution Bench of this Court, the law appears to be well settled and the Haryana Government cannot take away the accrued rights of the petitioners and the appellants by making amendment of the rules with retrospective effect. Civil Writ Petition No. 15721 of 1990 -6- For the foregoing discussion the writ petitions as well as the appeals are allowed and the orders of the High Court dated October 10, 1980 are quashed and the impugned Rule 4(ii) of the Punjab Government National Emergency (Concessions) Rules, 1965, as amended by the Haryana Government Gazette Notification No.GSR 77/Const/Art. 309/Amend/(1)/76 dated March 22, 1976 and the Notification No.GSR 182/Const/Art. 309/Amend/(2)/76 dated August 9, 1976 amending the definition of the expression 'military service' in Rule 2, are declared to be ultra vires the Constitution , insofar as they affect prejudicially persons who had acquired rights as stated above. A writ in the nature of mandamus is issued directing respondents 1 and 2 to prepare the seniority list afresh in the light of the decision of this Court taking into consideration the military service rendered by the petitioners as well as the appellants.” 10. Having declared that the retrospective operation to the amended provisions contemplated under the notification dated 04.08.1976 was ultra vires the Constitution, insofar as it affects prejudicially persons who had already acquired rights. In other words the retrospective operation contemplated under the notification dated 04.08.1976 alone was held invalid. Civil Writ Petition No. 15721 of 1990 -7- 11. In the aftermath of the decision rendered by the Supreme Court in Ex.Capt. K.C. Arora and another and Ex.- Capt. A.S. Parmar and others' case the Chief Secretary to the Government of Haryana issued a clarificatory order vide proceedings No. 12/14/84-2GS-II wherein it has been specifically stated that the benefit of military service would be available to those Ex-service men, who joined the service before the emergency, but continued to do service during the emergency period. 12. The learned Deputy Advocate General appearing for the respondents-State would refer to the decision of the Supreme Court in Dhan Singh and others vs. State of Haryana and others, 1990(2) Scale 1216 wherein it has been held as under:- “On account of the external agression by the Chinese forces in the Indian 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. Civil Writ Petition No. 15721 of 1990 -8- 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 form two 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 had 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 forces was higher. They include persons who could have pursued their studies, acquired higher qualifications 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 Civil Writ Petition No. 15721 of 1990 -9- 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 heeded 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 he 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, intelligible and has a direct nexus to the object 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, therefore, entitled to the benefit of military service as per the Emergency Concessions Rules.” Civil Writ Petition No. 15721 of 1990 -10- 13. The military personnel, who joined the military service prior to the proclamation of the emergency but could not get the military service benefits waged legal battle before the Supreme Court. The Supreme Court has held that the State has the authority to amend the 1975 Rules and withdraw the concession on a reasonable basis. The differentia between the personnel who joined military service prior to the proclamation of the emergency and those young boys who joined the military service during the proclamation of the emergency responding to the call of the nation is reasonable and therefore it has a direct nexus to the object sought to be achieved, it has been declared by the Supreme Court. In other words, the aforesaid decision of the Supreme Court negatives the claim of the military personnel, who joined the military service prior to the declaration of emergency and put in service during the period of service but could not join in any of the service of the Government as on 04.08.1976 the effective date of amendment brought in the definition of the Military service. 14. In the instant case, the petitioner has joined the military service on 14.02.1957 long prior to the national emergency declared by the President of India. He has retired from service after putting in his military service during the period of emergency. Thereafter, the petitioner joined the service under the respondents on 21.05.1973 on Adhoc basis. Civil Writ Petition No. 15721 of 1990 -11- 15. As rightly pointed out by the learned Counsel appearing for the petitioner, neither Rule 4(i) of the Punjab Government National Emergency (Concessions) Rules, 1965 nor the clarification issued by the Chief Secretary to the Government of Haryana vide proceedings No.12/14/84-2GS-II speaks of employment in “regular service” so as to get the benefits under Rule 4 of the Punjab Government National Emergency (Concessions) Rules, 1965. A person who had put in military service as per the definition under Rule 2 and the clarification given by the Chief Secretary employment in “service or post” of the Government is required to reap the military benefits. A person who has been appointed on Adhoc basis is also under the service of the Government. Even otherwise there is no dispute to the fact that the service of the petitioner has been regularised. For the reasons best known neither the petitioner nor the respondents would come out with the actual date on which the service of the petitioner was regularized. When Rule 4(i) of the Punjab Government National Emergency (Concessions) Rules 1965, does not contemplate either regularised service or permanent service, the petitioner, who has been in the government service long prior to the amendment introduced to the definition military service cannot be deprived of the benefits accrued to him. Civil Writ Petition No. 15721 of 1990 -12- 16. In view of the above, the impugned order passed by the respondents dis-entitling the petitioner from the military service benefits on the sole ground that he entered into government service only on Adhoc basis, does not stand legal scrutiny. Therefore, the impugned order is liable to be quashed. Accordingly, the impugned order passed by the respondents stands quashed and a direction is issued to the respondents to grant the military benefits alongwith consequential benefits to the petitioner, as per Rule 4(i) (ii) and (iii) of the Punjab Government National Emergency (Concessions) Rules, 1965. 17. With the above directions, the writ petition stands allowed. There is no order as to costs. (M. Jeyapaul) Judge 16.11.2010 dinesh Whether to be referred to the Reporters or not? (Yes/No)