CWP No. 15939 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 15939of 1989 Date of decision 12.5.2009 Darshan Singh ... Petitioner Versus The District and Sessions Division Bathinda and another ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: None for the petitioner Ms. Sudeepti Sharma, DAG Punjab. 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. In the instant petition filed under Article 226 of the constitution the prayer made is for quashing order dated 3.1.1987 (P.5) whereby application of the petitioner who had been working as Ahalmad in District Courts Bhatinda for counting military service towards increment and seniority was declined by his appointing authority- District and Sessions Judge, Bhatinda. Brief facts of the case necessary for disposal of the petition may first be noticed. The petitioner was appointed as Copyist by respondent no.1 against a reserved vacancy for ex-servicemen vide order dated 18.5.1981. He continuously worked as Copyist and then Ahalmad in various Courts at Bhatinda. Prior to that, petitioner joined the Military service as a Naib Subedar on 6.10.1961 and served as such upto 13.10.1981 (P.1). The petitioner has claimed that he served the defence forces during CWP No. 15939 of 1989 2 the emergency period promulgated under Article 352 of the Constitution and his name was very much on the roll during emergency period as certified by District Sainik Welfare Officer, Bathinda. Accordingly the petitioner made an application on 13.7.1983 for counting the period of his military service rendered by him during the emergency period towards his service to the present post for the purposes of increments, seniority, promotion, pension and other benefits (P.2). The State Government with an object to give benefit of military service rendered during the period of emergency promulgated under Article 352 of the Constitution framed and enacted the Punjab Government National Emergency (Concession) Rules, 1965 (for brevity 'the Rules') (P.3). It is averred in the petition that under the rules, the petitioner is entitled to get the military service rendered by him during emergency to be counted towards the present service for the purposes of seniority, pension, promotion and increments which has been denied by the respondents wrongly, illegally and without affording any opportunity to him. The stand taken by the respondents in the written statement is that the writ petition is liable to be dismissed on the ground that petitioner joined the Army on 6.10.1961 i.e. before the proclamation of emergency which was issued on 6.10.1962 and is therefore not entitled to the benefit of military service as per rules. The respondent has asserted that in view of the law laid down by Hon'ble the Supreme Court in the case of Dhan Singh and others v. State of Haryana and others 1991 Supp (2) SCC 190 no benefit could be given to the petitioner. In reply to para 13 of the petition it has been submitted that petitioner rendered military service from 6.10.1961 to 13.10.1980 and emergency in the country remained from 26.10.1961 to CWP No. 15939 of 1989 3 8.1.1968 and then from 3.12.1971 to 27.3.1977 and therefore according to the judgement rendered in Dhan Singh's case (supra), the persons who joined the army before emergency are not entitled to the benefit of military service as per the rules. After hearing the learned State counsel and going through the averments made in the petition, this Court is of the view that the instant petition is fully covered by the law laid down in Dhan Singh's case (supra). In Dhan Singh's case (supra), Hon'ble the Supreme Court has held as under: “ 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 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 CWP No. 15939 of 1989 4 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 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 foregoing their job opportunities. The differentia is, therefore, intelligible and has a direct nexus to the objects sought to be achieved.......” (emphasis added) It is thus evident that the petitioner cannot claim benefits of the 'Rules' as he did not join by responding to the call of the nation after declaration of emergency. He was serving in the army much earlier. Therefore, the petitioner is not entitled to the benefits of the 'Rules'. The writ petition is wholly without merit and is thus liable to be dismissed. For the reasons afore-mentioned this petition fails and the same is dismissed. (M.M.Kumar) 12.5.2009 Judge okg