C.W.P. No.5241 of 2010 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH C.W.P. No.5241 of 2010 Date of Decision: Nov. 25,2011 Ajmer Singh .............................................. Petitioner Versus State of Punjab and others ...................... Respondents Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Mandeep K. Sajjan, Advocate for the petitioner. Ms. Anu Pal, AAG, Punjab. ... RITU BAHRI, J. The petitioner is seeking a writ of Certiorari for quashing order dated 3.2.2010 (Annexure P-9) by which his demand for counting the military service during the period of emergency towards pension, seniority and increments has been rejected by the Department. The petitioner joined as Driver in the office of Block Development & Panchayat Officer, Zira, on 29.12.1969 and retired from the service after C.W.P. No.5241 of 2010 [ 2 ] superannuation on 31.10.1996. The petitioner had served the Army from 13.8.1953 to 12.8.1965. After retirement, the petitioner made a representation on 1.2.1971 (Annexure P3) for counting his military service as per the Punjab Government National Emergency (Concession) Rules, 1965 (Annexure P-4). Vide Instructions dated 31.5.1988 (Annexure P5) Government of India directed that the period of military service should count towards pension, gratuity and other benefits to the persons who have served the Armed Forces. In response to the legal notice dated 27.9.2008 the petitioner submitted all the documents i.e. Photocopy of Discharge Book, Photocopy of Canteen Smart Card, Photocopy of Identity Card of Ex-Servicemen to the Block Development & Panchayat Officer, Ghall Khurd. Despite completing all the formalities, claim of the petitioner was not considered. He filed a Civil Writ Petition No. 17253 of 2009 and vide order dated 11.11.2009 a direction was given to the respondents to pass a speaking order within a period of four months. His representation was declined vide order dated 3.2.2010 (Annexure P9). The reason given for declining the benefit to the petitioner is that after discharge from the Army on 12.8.1965 his services were regularized as a Driver with effect from 30.7.1970. There is a gap of almost 5 years of discharge from Army and as per the Instructions dated 20.7.1965 of the Personnel Department the claim for C.W.P. No.5241 of 2010 [ 3 ] counting service for pension is to be considered only if the employee has been recruited in the Government Department within one year of the date of discharge. In special case, it can be considered for the benefit of pension within one year but maximum within three years. Mr. Mandeep K. Sajjan, counsel for the petitioner, has argued that a similar issue came up for consideration before a Co-ordinate Bench in C.W.P. No. 4947 of 2002 (Bhagwant Singh v. State of Punjab and others) and C.W.P. No. 7254 of 1998 decided on 6.7.1999. While interpreting Rule 4(3) it is held that the period spent in military service shall be counted for the increments, seniority and pension. The person concerned should not have earned pension under the Military Rules in respect of military service in question. Any bonus or gratuity paid in respect of military service rendered shall have to be refunded to the State Government. Section 4(1) is absolute in nature. Placing reliance on Rule 4(3) to deny his benefit of service rendered in the Army is misinterpreting the entire scheme of Punjab Government National Emergency (Concession) Rules, 1965. Ms. Anu Pal, counsel for the State, has placed reliance on Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965 to contend that the period between the date of discharge from the military service to appointment to any civil post if it exceeds one C.W.P. No.5241 of 2010 [ 4 ] year and at the most three years, no benefit can be given to the petitioner towards seniority, increments and pension. She has referred the judgment of Supreme Court in State of Punjab and others v. Harbhajan Singh and Another (2007) 12 Supreme Court Cases 549 to contend that the benefit of military service cannot be given to the petitioner as he has been enrolled in the Army on 13.8.1953, much before the emergency was declared on 26.10.1962. The Supreme Court has declined to give benefit of military service if a person has joined the Army before declaration of emergency. To the same effect is the judgment of the Supreme Court in Chittaranjan Singh Chima v. State of Punjab 1997 (2) SCT 88. The Supreme Court while considering the Punjab Government National Emergency (Concession) Rules, 1965 has declined to give the benefit under the said Rules to those military personnel who had joined the military as a service career and thereafter came to be appointed in the quota for demobilised military personnel. They were not recruited during emergency and were, thus, not entitled to the benefit of seniority and consequential benefits admissible under the Punjab Government National Emergency (Concession) Rules, 1965. Heard learned counsel for the parties. The petitioner is seeking the benefit of Rule 4 of the Punjab Government National Emergency (Concession) C.W.P. No.5241 of 2010 [ 5 ] Rules, 1965 which reads as under:- “4. Increments, seniority and pension. Period of military service shall count for increments, seniority and pension as under:- (i)Increments:- The period spent by a person on military service, after attaining the minimum age prescribed for appointment to any service or post, to which he is appointed, shall count for increments, where no such minimum age is prescribed the minimum age shall be as laid down in Rules 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume-II. This concession shall, however, be admissible only on first appointment. (ii) Seniority:- The period of military service mentioned in clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service. (iii)Pension:- The period of military service mentioned in clause (i) shall count towards pension only in the case of appointments to permanent services or posts under the Govt. subject to the following conditions:- (1)The person concerned should not have earned C.W.P. No.5241 of 2010 [ 6 ] a pension under military rules in respect of the military service in question. (2) Any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the State Govt. (3) The period, if any, between the date of discharge from military service and the date of appointment to any service or post under the Govt. shall count for pension, provided such period does not exceed one year. Any period exceeding one year but not exceeding three years may also be allowed to count for pension in exceptional cases under the orders of Govt.” Rule 4(3) has been interpreted by a Division Bench of this Court in Dev Dutt, ASI v. State of Punjab and others 1996 (7) SLR 807. As per the language of the Rule if there was a gap of one year between the discharge and joining of civil post that was to be counted for the purpose of pension, increments and seniority. This period could extend to 3 years in exceptional cases under the orders of the Government. If the gap was more than 3 years it did not delete the benefit of military service rendered during the period of emergency with effect from 26.10.1962 to 10.1.1968. For all intents and purposes the period spent in military service during the emergency was to be given for C.W.P. No.5241 of 2010 [ 7 ] the purpose of grant of increments, seniority and pension. The judgment in Dev Dutt's case (supra) has been followed in a number of cases. The Co-ordinate Bench of this Court in Bhagwant Singh v. State of Punjab and others 2009 (3) SCT 242 has allowed the benefit of military service rendered during emergency to be counted for the purpose of increments, seniority and pension by giving the interpretation to Rule 4(3) that it does not take away the benefit granted under Rule 4(1) if the gap is more than 3 years between the discharge of military and joining of a civil post. A Division Bench of this Court in State of Punjab and others v. Malkiat Singh 2010(4) S.C.T. 537 has held that if a person has joined the Armed Forces prior to the declaration of emergency and has continued to work thereafter is entitled to the benefit of his service for the purpose of increments, seniority and pension. Rule 2 of the Punjab Government National Emergency (Concession) Rules, 1965 has been discussed in the judgment as under:- “In our opinion, the aforesaid decision of Ram Janam Singh's case is not applicable to the facts and circumstances of the case. In the present case, all the petitioners were already in service, when the first Emergency was declared. Rule 4 of the Rules of 1965 does not restrict the benefit of C.W.P. No.5241 of 2010 [ 8 ] military service to only those military personnel who joined the armed forces during the period of Emergency. Rule 2 of the Rules of 1965 provides that for the purposes 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 352 of the Constitution of India on October 26,1962 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. In the State of Punjab, this Rule was never amended.” However, in the State of Haryana, vide Notification dated 9.8.1976, this Rule was substituted by the following 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 C.W.P. No.5241 of 2010 [ 9 ] 352 of the Constitution of India on October 26,1962 in any of the three wings of the 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.” The basic difference in both the definitions is that vide Notification dated 9.8.1976 the State of Haryana has restricted the benefit of military service only to those personnel who had joined the service during the period of declaration of emergency. The Rules of 1965 have not been amended by the Punjab Government as per the definition of 'military service' as applicable to the Punjab Government. It restricts the benefit of military service to only those personnel who had joined the Armed Forces during the period of emergency. An amendment was made by the State of Haryana in the year 1976 restricted this benefit to those Army personnel who have joined when the emergency was declared in October 1962. The Supreme Court in Dhan Singh & Others v. State of Haryana & Others 1991 (1) S.C.T. 137 while examining the amendment made by Haryana Government vide notification C.W.P. No.5241 of 2010 [ 10 ] dated 9.8.1976 held that if an ex-army personnel had joined the State service prior to the amendment and has been given the benefit of military service rendered during the period of emergency, though he had joined prior to the declaration of emergency, the Government cannot take away the accrued rights of that ex-army personnel, even by making amendment to the Rules with retrospective effect. As far as the facts of the Supreme Court judgment in State of Punjab and others v. Harbhajan Singh and Another (2007) 12 Supreme Court Cases 549 the ratio of this judgment is not applicable as in this case the petitioners were getting pension from Army after rendering military service and they were held not entitled to the benefit under the Emergency Rules on this ground. The petitioner had joined the civil post on 22.4.1994 when the Punjab Government National Emergency (Concession) Rules, 1965 were repealed by the Punjab Ex-Servicemen Rules, 1982. As per Rule 8 the increments and pension in case of an ex- serviceman appointed against a reserved vacancy shall be fixed in accordance with the provisions of Chapter VII of the Punjab Civil Service Rules Vol-II. As per Rule 7.15 a Government employee has to exercise his option within three months from the date of his re-employment either to draw pension from Army or count his previous service for pension on the civil post. The judgment in Chittaranjan C.W.P. No.5241 of 2010 [ 11 ] Singh Chima's case (supra) is not applicable to the facts of the present case as the petitioner in that case had been appointed under the Punjab Demobilised Armed Force Personnel (Reservation of Vacancies in Punjab State Non- Technical Service) Rules, 1977. The petitioner has served the Army with effect from 13.8.1953 to 12.8.1965. The first emergency period commenced from 26.10.1962 to 10.1.1968 as proclaimed by the President of India in the country under Article 352 of the Constitution of India. The petitioner has joined the service on 13.8.1953 before the emergency was declared. Thereafter, he joined as Driver in the office of Block Development & Panchayat Officer, Zira on 29.12.1969. Vide order dated 3.2.2010 (Annexure P9) the benefit of military service, when he served during the emergency i.e. 26.10.1962 to 12.8.1965, has been rejected on the ground that there was a gap of 5 years between the discharge from the Army and the date when his services were regularized as Driver i.e. 30.7.1970. The petitioner may not be entitled to gap of more than 3 years i.e. discharge from the army service and joining as Driver in government service. In view of Dev Dutt's case (supra) he is entitled to the benefit of military service rendered during emergency for pension etc. The writ petition is allowed. The order dated 3.2.2010 (Annexure P-9) is quashed and a direction is given C.W.P. No.5241 of 2010 [ 12 ] to the respondents to count the period of service with effect from 26.10.1962 to 12.8.1965 for the purpose of increments, seniority and pension etc. The process of consideration be completed within a period of 3 months and consequential retiral benefits be released to the petitioner within three months from retirement till the amount is actually paid. Arrears shall be restricted to 38 months from the date of filing the writ petition. No order as to costs. 25.11.2011 ( RITU BAHRI ) Rupi JUDGE