IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.3370 of 2007 Date of Decision: 10.8.2009. ESM Ran Singh ..........Petitioner. Versus State of Haryana and another ..........Respondent CORAM: HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.NR Dahia,Advocate for the petitioner. Ms.Ritu Bahri, D.A.G.Haryana for the respondents. 1. To be referred to the Reporter or not ? 2. Whether the judgment should be reported in the Digest ? JASWANT SINGH,J. Petitioner, who is an Ex-Serviceman and working as Principal, Government Senior Secondary School, Kitlana, Tehsil and District Bhiwani, has filed the present writ petition under Articles 226/227 of the Constitution of India, challenging the amended clause (2) of the Punjab Government National Emergency Concession Rules,1965 (for short 1965 Rules), amended by Government of Haryana vide notification dated 4.8.1976 restricting the grant of benefit of military service towards increment, seniority and pension only to those Ex-servicemen who were enrolled and served the Indian Armed Forces during the first emergency w.e.f. 26.10.1962 to 10.1.1968. The case of the petitioner as unfolded by averments made in the petition is that he was enrolled into Indian Army on 19.1.1973 in The Education Core. Due to Indo-Pak war of 1971, second National Emergency was proclaimed on 3.12.1971 which continued upto 3.7.1977 and the petitioner served the Indian Army during the second emergency. He was discharged on 1.9.1996. CWP No.3370 of 2007 2 After his discharge from Indian Army, the petitioner joined service in Education Department,Haryana, as Principal, Government Senior Secondary School, Kitlana. In view of provisions of Rule 4 of 1965 Rules, he represented to the department-respondent no.2 to grant him benefit of his military service rendered by him during the National Emergency period from 3.12.1971 to 3.7.1977. Since the respondent department took no action, the petitioner filed CWP No.19616 of 2003 which was disposed of by this Court vide order dated 16.12.2003 with a direction to respondents to pass appropriate speaking order on the legal notice issued by the petitioner in this regard, within a period of four months from the date of receipt of copy of the order. In pursuance of the directions of this Court, the respondent department after considering the legal notice dated 6.11.2003 of the petitioner, rejected his claim by passing a detailed order dated 1.4.2004 (Annexure P/2) on the ground that the State of Haryana has extended the benefit of military service to only those ex-servicemen who had joined military service during the emergency period from 26.10.1962 to 10.1.1968 and since petitioner served during the second emergency i.e. from 3.12.1971 to 3.7.1977, he could not be granted the benefit of military service in view of amended clause (2) of 1965 Rules. After rejection of his claim, the petitioner again served a legal notice dated 1.5.2006 (Annexure P/4). This legal notice again did not bear any fruit as vide letter dated 27.10.2006 (Annexure P/5) the respondent department informed the petitioner that “no policy has been made, for granting benefit of military service during 2nd emergency in civil service”. Hence the present writ petition. Notice of motion was issued. A joint written statement has been filed on behalf of respondents 1 and 2 by Assistant Director(HRG), office of Commissioner and Director General, CWP No.3370 of 2007 3 School Education, Haryana. In the written statement the respondents have reiterated their stand that since the petitioner served during the 2nd emergency i.e. from 3.12.1971 to 3.7.1977, he could not be granted the benefit of military service in view of the amended clause (2) of 1965 Rules. It is further the stand of the respondents that the benefits of military service given regarding first emergency i.e. from 26.10.1962 to 10.1.1968 will not automatically flow to any such future emergency and such concessions cannot pass on as such. Replication was filed controverting the stand taken by the respondents in the written statement and reiterating the averments made in the petition. Reliance was also placed on Narendra Nath Sharma v. State of Punjab and others, 1993(2)RSJ(P&H)DB 173. We have heard learned counsel for the parties and gone through the pleadings with their able assistance. Learned counsel for the petitioner has contended that the action of the respondent State in not extending the benefit of increment, seniority and pension under 1965 Rules to the soldiers who had served the nation during the second emergency i.e. From 3.12.1971 to 3.7.1977 is highly discriminatory and arbitrary. On the same premise a challenge has been laid to the limiting clause of Rule (2) of 1965 Rules which defines “military service” thereby restricting the benefits only to the soldiers enrolled during the first emergency. Learned counsel further by relying upon a Division Bench judgment of this Court in Narendra Nath's case (supra) has contended that Rule (2) defining military service has to be read so as to include the military service rendered during the second emergency from 3.12.1971 to 3.7.1977 as well and thus he is entitled to the benefits, as claimed. Learned State counsel on the other hand has argued that the benefit granted under the 1965 Rules was by way of concession meant only for those who CWP No.3370 of 2007 4 joined the armed forces in response to the call of the nation during the first emergency w.e.f. 26.10.1962 to 10.1.1968. Elaborating further it was contended that no policy for grant of benefit of military service during the second emergency in the state service had been framed and such a concession cannot be claimed as a matter of right. Before proceeding any further it would be relevant to note the circumstances under which the 1965 Rules were enacted. On account of China having attacked India in 1962, an emergency was imposed by Government of India. In order to meet this external aggression, Government of India was in dire need of recruiting young men in the armed forces. In order to attract requisite number of youth, Government of India as well as State Governments through radio as well as print media announced certain benefits to the men joining armed forces. It is in this backdrop that in July 1963, Government of Punjab issued a circular with regard to concessions to civilian employees and others who had joined military service, which was to account for increments, seniority and pension in civil employment. Subsequently, on the instructions of Central Government, promised concessions were incorporated in the Rules by way of circulars and other means by the joint Punjab Government under Article 309 of the Constitution. Keeping in view the call of the nation and tempting concessions, a number of countrymen joined the Armed forces. After their release from the Army they were entitled to the benefits vested in them under the conditions of service. It is in these circumstances that the 1965 Rules were enacted which, after the formation of State of Haryana were adopted by the Government of Haryana w.e.f. 1.11.1966 and were applicable to its employees. It is also relevant and advantageous to notice that Government of Haryana vide notifications dated 22.3.1976, 9.8.1976 and 5.11.1976 introduced certain amendments to these rules with retrospective effect i.e. 1.11.1966. CWP No.3370 of 2007 5 For the purpose of deciding the issue involved in this petition the amendment effected vide notification dated 9.8.1976 in the definition of expression “military service” is relevant as the vires of the same have been challenged. The un-amended and amended definitions as per Rule 2 are reproduced as under:- Definition of military service as it originally stood. “ Rule 2-Definition:- For the purpose of these rules the expression 'military service' means enrolled or commissioned service in any of the three wings of the Indian Armed Forces (including service as a Warrant Officer) rendered by a person during the period of operation of the proclamation of emergency made by the President under Article 552 of the Constitution of India on the 26th October, 1962 or such other service as may hereafter be declared as military service for the purposes of these rules. Any period of military training followed by military service shall also be reckoned as Military service. ” Definition of military service amended vide notification dated 9.8.1976. “ Rule 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 CWP No.3370 of 2007 6 Indian Armed Forces (including the service as a Warrant Officer) during the period of the said emergency or such other service as may 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. ” It is also relevant to notice that the definition of 'military service' as amended vide notification dated 9.8.1976 alongwith the amendment sought vide notification dated 22.3.1976 was subject matter of challenge and adjudication by the Hon'ble Supreme Court in Ex-Capt. K.C.Arora and another v. State of Haryana and others, AIR 1987 SC 1858. The petitioners therein were ex-army personnel who had joined the said service prior to the issue of notifications and therefore had contended that their accrued rights under the un-amended Rules of 1965 could not be taken away by the impugned notification enforced with retrospective effect. The Hon'ble Supreme Court had decided in favour of ex- army personnel by holding that their accrued rights could not be taken away. However, the question with regard to the amended definition of 'military service' under Rule (2) as discriminatory and violative of Articles 14 and 16 of the Constitution was not specifically considered. The Hon'ble Supreme Court in Raj Pal Sharma v. State of Haryana , AIR 1985 SC 1263 considered the validity of the third notification dated 5.11.1976 whereby Rule 4(ii) of the 1965 Rules was amended by adding a proviso, thereby stipulating that a person who was released from 'military service' on compassionate grounds was not entitled to any concession under the 1965 Rules. The Hon'ble Supreme Court held the impugned amendment as violative of Articles 14 and 16 and therefore, struck it down. In Dhan Singh and others v. State of Haryana and others, AIR 1991 SC 1047 the Hon'ble Supreme Court was seized of the amended definition CWP No.3370 of 2007 7 of 'military service' as postulated in Rule (2) restricting the benefit to those ex- army personnel who had joined during the period of first emergency. Some of the petitioners therein had joined the Army before 24.10.1962, served during the period of first emergency and were released only after the emergency was lifted. They had joined the State service after the amendment effected vide notification dated 9.8.1976, unlike the persons in K.C.Arora's case (supra) who had joined the State service prior to the issue of said amendment. Due to the fact that respondent State had issued further instructions dated 4.8.1996 directing that the ex- servicemen who had joined civilian service after the issue of notification dated 9.8.1976 would continue to be governed by the said notifications were thus denied the benefit under the Rules. It was submitted by the petitioners therein that those who served during the first emergency constituted one class in itself as far as duties, powers, privileges and period of service during the emergency were concerned and the differential treatment meted out to the persons who joined army prior to emergency and were released later amounts to denial of equal opportunity in the matter of employment and thus violative of Article 16. The Hon'ble Supreme Court rejected such contentions and dismissed the appeals. Relevant paras 10,11 and 12 thereof are reproduced as under:- “10.We do not agree. The State could amend the 1965 Rules and withdraw the concession in exercise of the power conferred under Art.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 rules is challenged as denying equal protection, the question for determination by the Court is not whether it has resulted in inequality but whether there CWP No.3370 of 2007 8 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 with the inhibition of equal protection clause under Art.14. To attract the attention of the clause, it is necessary to show that the selection or differentiation is un- reasonable 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 rule is 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 the external aggression 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. 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 CWP No.3370 of 2007 9 compelled to serve during the emergency formed 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 thereby gained seniority in the service. For going 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 CWP No.3370 of 2007 10 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 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, therefore, entitled to the benefit of military service as per the Emergency Concession Rules.” The matter was re-agitated before the Hon'ble Supreme Court by the ex- military personnel challenging the restrictive meaning of 'military service' and thus seeking re-consideration of the judgment in Dhan Singh's case (supra). The Hon'ble Supreme Court reiterated its stand in Dhan Singh's case (supra) and held that those personnel who were enrolled during the first emergency formed a separate class than the ones enrolled earlier and who had chosen the armed forces as a career and therefore, the definition of 'military service' was held to be non- discriminatory or arbitrary. It is thus, abundantly clear that the definition of 'military service' as per Rule 2 of the 1965 Rules has repeatedly withstood the onslaught on the anvil of violation of Articles 14 and 16 of the Constitution of India. In the present case the petitioner has laid challenge to the definition of 'military service' as per Rule 2 of the 1965 Rules restricting the benefits of 1965 Rules only to the soldiers who served during the period of Chinese aggression i.e. first emergency and thereby excluding soldiers like the petitioner who served during the second emergency as violative of Articles 14 and 16 of the CWP No.3370 of 2007 11 Constitution. It is claimed that no distinction could be made between the soldiers who had served during the first emergency and the second emergency whereby East Pakistan was liberated and a new nation “Bangladesh” was created. It was, therefore, asserted that the action of the State Government in treating the soldiers who served during the second emergency is discriminatory and arbitrary. We find the argument to be wholly mis-conceived and mis-placed. It cannot be disputed that concessions like the ones granted under the 1965 Rules are granted as a matter of State policy which is in the exclusive domain of the Executive. No direction can be issued to the State Government to extend a particular benefit to any class of persons unless they base their claim on the principle of equality, enshrined in Articles 14 and 16 of the Constitution. We fail to understand as to how the soldiers who served during the second emergency can equate themselves with the soldiers who served during the first emergency for the purpose of grant of benefits under the 1965 Rules as they formed two distinct separate class of soldiers. Merely by being enrolled into Indian Army during the second emergency no right has come to vest in the petitioner to claim similar treatment as given to the persons who were enrolled during the first emergency as undisputedly the circumstances existing at the time of first and second emergency are entirely different as enumerated hereinabove and noticed and considered by the Hon'ble Supreme Court in K.C.Arora's and Dhan Singh's case (supra). The Hon'ble Supreme Court has already authoritatively held that the persons who were enrolled during the first emergency due to the special circumstances formed a distinct class and thus could be treated differently. Therefore, we find no substance in the claim of the petitioner. Reliance on the judgment of a Division Bench of this Court in Narendra Nath Sharma's case (supra) is also mis-placed as Division Bench of this Court was considering the definition of 'military service' as applicable to State of Punjab. The definition of 'military service' as CWP No.3370 of 2007 12 applicable to State of Punjab was not amended whereas in the case of Haryana, it was amended vide notification dated 9.8.1976, restricting the benefits only to those who were enrolled during the first emergency. For the reasons recorded above,finding no merit in this writ petition the same is hereby dismissed. (M.M.KUMAR) (JASWANT SINGH) JUDGE JUDGE 10.8.2009. joshi