Regular Second Appeal No.1833 of 2008 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 20, 2010 State of Haryana & others ...Appellants VERSUS S.R.Yadav ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sunil Nehra, Sr.DAG, Haryana, for the appellants. Mr.R.K.Malik, Senior Advocate with Mr.Jitender Bedwal, Advocate, for the respondent. ***** RANJIT SINGH, J. While issuing notice of motion in this case, this court had placed reliance on the observations made by the Hon'ble Supreme court in State of Haryana and another Vs. Shri Om Parkash, 2006 (4) SLR 765. The contention raised on behalf of the State was that Regular Second Appeal No.1833 of 2008 (O&M) : 2 : the respondent had joined the service three years after his discharge from the Military service and accordingly in terms of Rule 4(iii) of the Punjab Government National Emergency (Concession) Rules, 1965 (for short “the Rules”), he was not entitled to count the Military service for the purpose of pension. The observations made by the Hon'ble Supreme Court while interpreting Rule 4(iii) of the Rules, referred to above, cannot be read in a manner as is being suggested by the State counsel. The rule position would show that this rule is meant to include military service for the purpose of grant of pension and would regulate the period after discharge and joining the post under the Government. It is in this context rule provides a position that if the gap does not exceed one year, it shall count meaning thereby that even without working on a Government post, the person would be entitled to count this service for the purpose of pension. If the period does not exceed three years, then the same also is countable at the discretion of the Government and this period may also be allowed to count towards pension in exceptional cases. Ofcourse, necessary consequences of this rule would be that if the period of gap is more than three years, then it would not be countable under any circumstances. This rule cannot be read to mean that the entire period of military service would stand forfeited and would not be countable towards pension in case the gap between the discharge and the joining of the post under the Government is more than three years. The observations made in the case of Om Parkash (supra) have been minutely perused by me. This judgment can not be read in the manner as is being suggested by the State counsel to say that if a Regular Second Appeal No.1833 of 2008 (O&M) : 3 : gap is more than 3 years then military service would not be countable for pension. The relevant part of the same reads as under:- “But if the period exceeds one year but does not exceed three years, the period may be allowed to be counted in exceptional cases. In other words, the Government must pass an order holding that the case was an exceptional one and, therefore, instead of period of one year, period upto three years could be reckoned for the purpose of computation. If the period is more than three years, there is no scope for including the same for the purpose of working out the pensionary entitlements.” The word `same' (underline above) would be significant and mean the period of gap alone. Mr.Malik, senior counsel appearing for the respondent is also justified in placing reliance on Division Bench judgment of this court in the case of Dev Dutt, ASI Vs. State of Punjab and others, 1996(3) RSJ 852, where this rule has been interpreted. It has clearly been held in this case that under this rule the period for which the person had served the Military during emergency cannot be excluded and it was accordingly observed that respondent- Government had clearly misinterpreted the rule and illegally withheld the benefits of the period spent by the respondent in Military service for the grant of increments, seniority and pension. Similar view was earlier taken by another Division Bench of this court in the case of Civil Writ Petition No.7254 of 1998, decided on 6.7.1999. It is clearly observed that the respondents by reading this rule in the manner as suggested were misreading the same. Relevant Regular Second Appeal No.1833 of 2008 (O&M) : 4 : observations read as under:- “As observed above, the respondents are not correctly reading the rule to deny the benefit of military service rendered during the emergency for purpose of pension. Since the petitioner had joined civil service more than one year after his discharge from the Armed Forces, he would not be entitled to count the period between the date of his discharge and his joining the civil service for purpose of pension, but would be entitled only to count the period of service rendered during the emergency for purpose of pension. If the interpretation as put forth by the respondents is accepted, then rule 4(iii)(3) would be otiose inasmuch as the military service rendered during the emergency is countable for purpose of increments as well as the seniority on a deeming fiction as if for the period of service rendered during the emergency such an ex-serviceman had in fact been in civil service. If such period is to be counted for purpose of increments and seniority, the same cannot be denied for purpose of pension. Even this is not the spirit of Rule 4(iii)(3). Rule 4 (iii)(3) gives rather further benefit to an ex-serviceman to count that period of service between his discharge from the Armed Forces and re-joining the civil service for purpose of pension if that interregnum period is not exceeding one year.” Another submission made by the State counsel is that special pay, which was authorised to the respondent, was for a post Regular Second Appeal No.1833 of 2008 (O&M) : 5 : while he was working at Hisar. As per the counsel, the respondent was transferred from Hisar to Chandigarh, but continued to remain at Hisar by virtue of stay order passed by the Court from where he ultimately retired. Since the respondent had stayed at Hisar and continued to perform the duties of a post, which carried a special pay under the orders of the court, it cannot be said that this was in an illegal or unfair mode of staying at Hisar. The petitioner stayed at Hisar legally. Accordingly, no interference on this ground would also be called for. The Regular Second Appeal is, therefore, dismissed. January 20, 2010 ( RANJIT SINGH ) ramesh JUDGE