Regular Second Appeal No. 479 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 479 of 2009. (O&M) Date of Decision: 27.1.2009 *** State of Haryana & Ors. .. Appellants VS. Ram Chander Retired Driver. .. Respondent. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Ajay Gulati, AAG Haryana. Mr. Amrit Paul, Advocate for the caveator-respondent. *** ARVIND KUMAR, J. Delay condoned. The instant regular second appeal has been preferred by the State of Haryana and others-defendants against the judgments and decrees passed by the Courts below. It emerges out from the record that the plaintiff-respondent filed a suit and claimed the benefit of military service rendered from 5.12.1956 to 11.5.1964, including the period of emergency of 1 year, 6 months and 16 days towards increment, seniority and pensionary benefits. After contest, the learned trial court held the plaintiff entitled for the benefit of military service of 1 year 6 months and 16 days rendered during emergency, for the purposes of increment and pension, but restricted the arrears of increment and pension to three years prior to the filing of the suit and directed the appellants to calculate the amount of the arrears and to re- fix the pension of the plaintiff. Thereafter, the plaintiff as well as defendants preferred separate appeals against the judgment and decree of the learned trial court, which were dealt with by the learned first appellate court and resulted into dismissal of the same. The observations made by the learned Regular Second Appeal No. 479 of 2009 2 first appellate court below while affirming the findings returned by the learned trial court are relevant and are reproduced below:- “13. The Hon'ble High Court of Punjab and Haryana in 1999(2) Recent Services Judgments (P&H) 50 Gurcharan Singh Bains Vs. Government of Punjab and another, relied upon by the court below emphasized that under Rule 2 to employees those who joined prior to the promulgation of emergency in the military are entitled for the benefit of military services. The appellant while appearing into witness box in his cross examination categorically stated he had made representation before NCC authorities as well as before the respondent claiming benefit of military service. Darshan Kumar DW1 in first line of his cross-examination admitted the discharge certificate of the appellant Ex.D1 was available in his service record. He also admitted the benefit of army service is to be considered for qualifying service. He also admitted the communication of Government instructions from time to time with this regard to his department. He also admitted the service record of the appellant pertaining to 23.4.2981 to 31.3.1003 was not available with his office and if any representation is made by the employee same is kept on personal file. In the presence case personal file of the appellant is not available then it was his duty to prove on record that he ever made any representation to the respondents, making prayer to grant him benefit of military service and in para no.5 of the plaint he categorically stated that he made repeated requests to the respondents to grant him benefit of military service since January 2005 till date i.e. filing of suit. It means prior to January 2005 he had not agitated his claim of benefit of military service rendered during the period of subsistence of emergency. The court below has Regular Second Appeal No. 479 of 2009 3 considered his case in right prospective manner while keeping reliance on the law cited by counsel for the appellant himself in 1999(2) Recent Services Judgments (P&H) 50 Gurcharan Singh Bains Vs. Government of Punjab and another. The benefit of military service towards increment and seniority cannot be termed recurring one and except counting the period of military service towards pension other claims of the appellant are barred by period of limitation and the court below rightly kept reliance on the law cited in 2001(1) Recent Services Judgments (P&H) 552 Buta Singh Versus The State of Haryana and others. In this way, this court find no infirmity with the reasons recorded by the court below. So far case of Devi Singh Phogat is concerned appellant has not been able to prove that the case of Devi Chand Phogat was on similar footing whether Devi Chand Phogat ever made representation within the reasonable period or not has not been proved by the appellant while summoning his service record and on the basis of the case of Devi Chand Phogat in compliance of order dated 6.4.2000 Ex.PW2/A, appellant cannot be given the benefit of military service treating this case at par with Devi Chand Phogat. The Court below has based his findings on the basis of well established precedent hereinbefore and there is no ground to differ with the reasons recorded by the court below. The appeal filed by the appellant is devoid of merits and the same is liable to be dismissed. 14. Coming to the appeal filed by respondent-State of Haryana, the notification Ex.D2, Ex.PW2/B and Ex.PW2/C is not disputed. Provisions has been made to grant benefit of military services rendered in emergency as per notification Ex.D2 and coupled with law laid down in 1999(2) Recent Services Judgments (P&H) Regular Second Appeal No. 479 of 2009 4 Gurcharan Singh Bains Vs. Government of Punjab and another, appellant entitled to benefit of military services towards fixation of pension. So far limitation to file the suit is concerned the court below has considered this fact and granted the benefit of military service towards pension only and it also limited the claim of arrears of pension three years prior to date of filing the suit by the appellant and in view the law laid down by the Hon'ble High Court Punjab and Haryana in 2001(1) Recent Services Judgments (P&H) 552 Buta Singh Versus The State of Haryana and others which also considered by the court below question of limitation is not applicable in case of claiming of pension on the basis of military services benefit being recurring cause of action. The appeal filed by the respondent-State of Haryana is also devoid of merits and is liable to be dismissed.” From the above-said observations, it is manifest that there is no illegality or perversity in the approach adopted by the Courts below. Nothing has been shown to take a contrary view than the one recorded by the Courts below. No substantial question of law, which is sine qua non for admission of appeal, is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE January 27,2009 Jiten