CWP No.10642 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : December 18, 2009 CWP No.10642 of 1989 Rameshwar Dass Sharma ...Petitioner Versus State of Haryana etc. ...Respondents CWP No.12044 of 1989 Ram Sarup ...Petitioner Versus State of Haryana etc. ...Respondents CWP No.12045 of 1989 Hawa Singh ...Petitioner Versus State of Haryana etc. ...Respondents CWP No.12046 of 1989 Balbir Singh, ...Petitioner Versus State of Haryana etc. ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Ashish Handa, Advocate, for the petitioner(s). None for the respondents. HEMANT GUPTA, J. This order shall dispose of aforesaid four writ petitions, wherein the petitioners have claimed benefit of Military Service in terms CWP No.10642 of 1989 2 of Hon'ble Supreme Court judgment in Dharambir Vs. State of Haryana AIR 1985 Supreme Court 1263. The details of the petitioners including the date of joining and discharge from the Army is as under : Sr. No. Case No. Party Name Date of Joining Date of leaving Remarks 1. CWP No.10642 of 1989 Rameshwar Dass Sharma Vs. State of Haryana etc. 30.4.1960 27.11.1980 Discharged on compassionate grounds, working as Naib Subedar 2. CWP No.12044 of 1989 Ram Sarup Vs. State of Haryana etc. 4.10.1955 1.11.1979 Reitred on completion of service, promoted to the post of Naib Subedar 3. CWP No.12045 of 1989 Hawa Singh Vs. State of Haryana etc. 10.11.1956 5.12.1977 Discharged on compassionate grounds, working as Hawaldar 4. CWP No.12046 of 1989 Balbir Singh Vs. State of Haryana etc. 28.7.1962 24.12.1979 Discharged on compassionate grounds, working as Hawaldar A proclamation of National Emergency in the Country was issued by the President of India on 26.10.1962, which remained operative till 10.1.1968. All the petitioners have joined Armed Forces prior to declaration of National Emergency on 26.10.1962, as per the details mentioned above. The petitioners have joined civil services after their discharge i.e. after the Punjab Government National Emergency (Concession) Rules, 1965 (as adopted in Haryana) was amended by the State of Haryana vide notification dated 9.8.1976 with retrospective effect from 1.11.1966. As per the amended definition, the benefit of Military Service is to be granted to a person, who has been enrolled or commissioned in CWP No.10642 of 1989 3 service during the proclamation of Emergency on 26.10.1962 in any of the three Wings of Indian Armed Forces. Another notification was issued by the State on 5.11.1976 adding proviso to Rule 4 (ii) to such Rules to the effect that a person who has been released from Military Service on compassionate grounds shall not be entitled to any concession under this Rule. The proviso to Rule 4 (ii) has been struck down by the Hon'ble Supreme Court in a judgment reported as Raj Pal Sharma and others Vs. State of Haryana and others AIR 1985 Supreme Court 1263. In fact that is the judgment relied upon by the petitioners to claim benefit of Military Service as well. However, in the aforesaid case, there was no challenge to the amendment carried out by the State on 9.8.1976 substituting the definition of 'Military Service'. The legality of such amendment was subject matter of consideration before the Hon'ble Supreme Court in a judgment reported as Dhan Singh and others Vs. State of Haryana and others 1991 (1) SLR 200. It was found that the persons, who have joined 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. Therefore, the differentia is intelligible and has a direct nexus to the objections sought to be achieved. It was held to the following effect : 12. .....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”. CWP No.10642 of 1989 4 In view of the said finding, the writ petitions challenging the legality of amendment carried out on 9.8.1976 were dismissed. It may be noticed that in a earlier judgment i.e. Ex.Capt. K.C.Arora and another Vs. State of Haryana and others 1984(3) SCC 281, it was held that the retrospective effect given to the amendment vide notification dated 9.8.1976 is illegal as such amendment affect prejudicially the persons, who have acquired rights for determination of seniority in terms of the un-amended Rules. Learned counsel for the petitioners has relied upon a Full Bench judgment of this Court reported as Jang Singh and others Vs. State of Punjab and others 1997(5) SLR 308, wherein benefit of Military Service has been conferred on the persons, who have joined Armed Forces even before proclamation of Emergency on 26.10.1962. The said judgment is not applicable in the facts of the present case for more than one reason. Firstly, the aforesaid case dealt with Rule 2 as is applicable in Punjab. In Punjab, the definition of Military Service has not been amended as has been substituted by State of Haryana vide notification dated 9.8.1976. The challenge to the legality of notification dated 9.8.1976 has remained unsuccessful before the Hon'ble Supreme Court in Dhan Singh's case (supra). In Dhan Singh's case (supra), the persons who had been enrolled or commissioned during the period of Emergency but were released on compassionate grounds, were found entitled to the benefit of Military Service as proviso to Rule 4(ii) inserted vide amendment dated 5.11.1976 was struck down. However, in the present case, all the petitioners have joined CWP No.10642 of 1989 5 service before the proclamation of National Emergency on 26.10.1962 and have been discharged from the Army after the amendment was carried out on 9.8.1976. Therefore, the judgment of Hon'ble Supreme Court in K.C.Arora's case (supra) is of no assistance to the petitioners, as the petitioners were discharged from Army after the Rule was amended and had no right to claim benefit of Military Service in terms of the amended rule. In Raj Pal Sharma's case (supra), Rule 4 (ii) has been struck down, therefore discharge on compassionate grounds cannot be a reason for declining the benefit of Military Service. But in the present case, the petitioners have joined Armed Forces prior to declaration of Emergency and have been discharged after amendment of the Rules on 9.8.1976. Therefore, the petitioners are not entitled to benefit of Military Service. In view of the above, I do not find any merit in the present writ petitions. The same are dismissed. December 18, 2009 (HEMANT GUPTA) Vimal JUDGE CWP No.10642 of 1989 6 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : December , 2009 CWP No.10642 of 1989 Rameshwar Dass Sharma ...Petitioner Versus State of Haryana etc. ...Respondents CWP No.12044 of 1989 Ram Sarup ...Petitioner Versus State of Haryana etc. ...Respondents CWP No.12045 of 1989 Hawa Singh ...Petitioner Versus State of Haryana etc. ...Respondents CWP No.12046 of 1989 Balbir Singh, ...Petitioner Versus State of Haryana etc. ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Ashish Handa, Advocate, for the petitioner(s). None for the respondents. HEMANT GUPTA, J.