Civil Writ Petition No. 14701 of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 14701 of 2000 Date of decision:- 25.11.2011 Sohan Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. B.S. Sehgal, Advocate for the petitioner. Mr. Gazi Mohd. Umair, DAG, Punjab. RITU BAHRI J. Petitioner is seeking a Writ of Certiorari under Article 226/227 of the Constitution of India for quashing the order dated 27.3.1998 (Annexure P-12) rejecting the claim of the petitioner for counting of military service towards pensionary benefits. Petitioner joined the Indian Army as a Combatant on 06.5.1954 and was discharged on 22.9.1965 after rendering 11 years 4 months and 16 days of service. At the time of discharge, he was holding the rank of Havildar. He did not earn pension from the military authorities but was given only terminal gratuity. The petitioner was appointed as Social Studies Master in State of Punjab in Government High School Chakdana on 28.3.1969 against a regular post. He retired from this post on 31.8.1991. Civil Writ Petition No. 14701 of 2000 -2- The petitioner sought benefit of military service as per Rule 4.3 of the Punjab Civil Service Rules Vol-II. The benefit has been declined by the respondents vide order dated 27.3.1998 (Annexure P-12). His case has been rejected on the ground that as per Rule 14.3 of CSR Vol-II, the petitioner should have joined the civil employment within 12 months from the date of release from the Army. He joined the Army beyond 3 years. Mr. B.S. Sehgal, 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. He has also argued that a number of judgments have been passed by this Court following the Division Bench judgment in Dev Dutt, ASI v. State of Punjab and others 1996(7) SLR 807. The benefit of military service has been granted where Civil Writ Petition No. 14701 of 2000 -3- there was a gap of more than 3 years in joining the service. In a recent judgment in Bhagwant Singh v. State of Punjab and others 2009(3) SCT 242 this Court has granted similar benefits of service rendered during emergency as while interpreting Rule 4 (3) of the Punjab National Emergency (Concession) Rules, 1965. Mr. Gazi Mohd. Umair, learned counsel for the State does not dispute the settled preposition of law that even if there is a gap of beyond 3 years the benefit as contemplated under Section 4(1) of the Punjab National Emergency (Concession) Rules, 1965 is to be given to an ex-Army personnel for the purpose of seniority, pension and increments. Reference has been made to Rule 4.3 of the Punjab Civil Services Rules Vol.-II, which is reproduced as under :- “4.3.(a) Service rendered by an employee belonging to one of the classes mentioned in the schedule below after attaining the age of 18 years, which is pensionable under military rules, but which terminates before a pension has been earned in respect of it, may, at the discretion of Government, be allowed to count, when followed by service qualifying for pension under civil rules, as part of such service “ Provided that any bonus or gratuity received in lieu of pensions, on or since, discharge from military service, shall be refunded in such number of monthly instalments, nor normally exceeding 36 and beginning from such date, as in such case, the Government may decide. Service so allowed to count shall, however, be restricted to service, within or Civil Writ Petition No. 14701 of 2000 -4- outside the employees unit for department, in India or elsewhere, which has been paid for from Indian revenues or for which a pensionary contribution has been received by Indian revenues. In the case of Defence Security Corps personnel re-employed in any civil posts, however, only half of the service rendered by them in the Defence Security Corps shall count for the purpose of pensionary benefits. (b) Service pensionable under military rules which does not terminate before a pension has been earned in respect of it shall not be allowed to count for pension under civil rules without the sanction of the competent authority. Note 1. - An officer, ex-soldier, ex-sailor or ex- airman will not be brought under the operation of this rule as a matter of course. Each case will be decided on its merits, e.g., there may be cases in which it may be open to a claimant for pension to add military service during the Great War to former non-pensionable service in the Army in order to claim the benefit of a military pension. In such cases it may be to the advantage of the claimant that he should not be brought under the operation of this rule. The bearing of paragraph 574 of the Pay and Allowance Regulations of the Army in India, Part II, on the position of soldiers of the Indian Army who re-entered during the Great War, deserves consideration in this connection. Note 2.- To be eligible for the concession in this rule, the individual concerned should take his discharge from the Army, Navy or Air Force Civil Writ Petition No. 14701 of 2000 -5- within 12 months of the date of his confirmation in the post pensionable under civil rules. This limit will be relaxed by competent authority only in special cases. Note 3.- Employees in the Military Policy have the option of counting service under any other rules in these Regulations which would give them a similar or more liberal concession. Note 4. - Omitted. Note 5. - When or order is passed under this rule allowing previous military service to count as part of the service qualifying for civil pension, it should be taken as carrying with condonation of breaks, if any, in the Military service, or the break, if any, between the military service and the civil service. Note 6. - Omitted. Note 7. - It is permissible under this rule to allow military service interspersed between two periods of civil service to count for civil pension; Provided that the conditions laid down in this rule are otherwise fulfilled. The share of pension proportionate to military service in such cases will be borne by the Defence Department. Before orders are passed, in any case, the military service of the individual concerned and the amount of gratuity paid to him should be verified by reference to Defence Accounts Officers concerned. Note 8.- The sanction regarding the counting of military service should be accorded by the competent authority at the time of appointment of the person concerned and not at the time of his retirement from civil service. Sanctions accorded in such cases are required specially to Civil Writ Petition No. 14701 of 2000 -6- mention the amount of gratuity or bonus recoverable, the number of monthly instalments in which the bonus or gratuity is to be recovered, and the date from which the recovery is to commence. If, in any case, the gratuity is not to be recovered, the fact will be specially stated in the sanction. The gratuity once refunded in order to secure the benefit of counting former military service for civil pension cannot be paid back in any circumstances. Note 9. - The question of the amount of military or War (Great War) Service which a Government employee is entitled to count for civil pension should be considered as soon as he joins a pensionable post. In the case of non-gazetted Government employees the amount should be shown in a certificate to be recorded in the service book or the service roll, as the case may be, by the Head of Department who should satisfy himself that the conditions of this rule and rule 4.6 or other relevant rules or instructions for counting military service for civil pension are fulfilled. The military service should in all cases be verified after reference to the Defence Accounts Officer concerned. References to the relevant rules should be quoted in the certificate and attested copies of the records relied upon in support of it should be attached. Note 10.- See also notes under rule 4.6-A. Note 11. -The expression 'gratuity or bonus' occurring in clause (a) refers to service gratuity or bonus only, and not war gratuity or bonus received as a reward for War Service.” Civil Writ Petition No. 14701 of 2000 -7- As per Rule 4.3 (b) Note 2 :- “to be eligible for the concession in this rule, the individual concerned should take, his discharge from the Army, Navy or Air Force within 12 months of the date of his confirmation in the post pensionable under the civil rules. This limit will be relaxed by competent authority only in special cases”. Referred to Rule 4.6(a), which is also reproduced here under :- “4.6(a). War service rendered by itself or in conjunction with other military service shall count in full towards civil pension subject to the conditions, namely : (i) The officer concerned should not have earned a pension under the military rules in respect of the service in question; (ii) in the case of service or posts in respect of which a minimum age is fixed for recruitment to military or was service rendered below that age shall be allowed to count for pension; (iii) 'War Service' rendered in the Armed Forces of India and rendered in similar forces of a Commonwealth Country shall be allowed to count alike for pension and no contribution towards or share of, a pension earned as a result of this concession shall be claimed from the foreign Government concern; (iv) no refund of bonus or gratuity paid in respect of this 'War Service' shall be demanded from the officer concerned. If, however, the officer has been granted any Civil Writ Petition No. 14701 of 2000 -8- retirement gratuity for service covering both the war and post war period such gratuity shall be refundable. Also if any portion of service is allowed to count towards civil pension under Rule 4.3 ibid, the instructions contained in note 1 below, in regard to refund of gratuity shall mutatis mutandis apply; and (v) break between military/war service and the civil shall be treated as automatically condoned; provided the period of the break does not exceed one year. Breaks exceeding one year but not exceeding three years may also be condoned in exceptional cases, under special orders of Government. Note 1. In the case of a civil employee who has rendered satisfactory paid military service in the war in addition to military service pensionable under the military rules before or after such service but who did not earn a pension by his war service in conjunction with his other military service, that portion of the military service which was rendered before or after the War Service should be dealt with in accordance with the provision of Rule 4.3 and the amount of gratuity which the Government employee will refund in respect of the later portion should bear the same proportion the total amount of gratuity received in lieu of pension as the period dealt with under Rule 4.3 bears to the total period of military service including the period of War Service. Civil Writ Petition No. 14701 of 2000 -9- Explanation - For the purpose of this note, it is immaterial whether or not, there was a break between the War Service and the other military service. Note 2. The service rendered in the I.N.A. by the persons of the following categories shall also be treated as War Service for the purposes of counting towards pension in terms of this rule :- i) Those who were holding civil posts before joining the Indian National Army and have been reinstated in the same posts. ii) Those who were members of the regular Indian Armed Forces before joining the Indian National Army and were subsequently re-employed in some other civil posts. iii) Those who joined the Indian National Army from the General Public or from the Armed Forces and have subsequently been absorbed in the civil posts. While applying these rules to the facts of the present case, the case of the petitioner, he was discharged from the Navy on 31.3.1983, thereafter,he joined the Himachal Government from August 1983 to June 1988 and thereafter on 09.6.1988 joined as Marine Fitter in BBMB. As per Rule 4.3(b) Note 2 he should have been confirmed on a civil post 12 months prior to the date of his discharge. The limit was relaxable by the competent authority only in exceptional cases. However, in the present case, there is a gap of almost two years between the date of his Civil Writ Petition No. 14701 of 2000 -10- discharge and appointment as lecturer on regular basis. By applying the ratio by this Court in Dev Dutt, ASI versus State of Punjab and others (supra) and Bhagwant Singh versus State of Punjab and others (supra) as per Rule 4.6(a)(5) if there was a break between military service and the civil post was liable to be condoned. Section 4.6(a) is absolute in nature. War service was liable to be counted towards civil pension subject to certain conditions. Only on the ground that the gap was more than one year, the benefit was not to be wiped out. As per Rule 4.3 if any gratuity was paid by the military service that was liable to be returned back and he should not have earned a pension. This writ petition is being allowed. The order dated 27.3.1998 (Annexure P-12) is set aside and the respondents are directed to give the benefit of service rendered by the petitioner from 6.5.1954 to 22.9.1965 for the purpose of seniority, increments and pension. The consequent benefits shall be released. Arrears are restricted to 38 months from the date of filing of the writ petition. 25.11.2011 ( RITU BAHRI ) Vijay Asija JUDGE