Civil Writ Petition No. 9624 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9624 of 2006 Date of decision:- 25.11.2011 Manjit 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. The petitioner is seeking writ of certiorari quashing the order dated 2.3.2006 (Annexure P-8) rejecting the claim of the petitioner for counting of military service from 27.10.1967 to 31.10.1977 towards civil service for the purpose of pensionary/retiral benefits. The petitioner, whose date of birth is 15.8.1947 was enrolled in the Indian Navy on 16.10.1967. He was relesed from the service on 31.10.1977 after having put in 10 years and 15 days service. His service was less than 15 years, which was required under the Rules for pensionary benefits. He was appointed as Sub Divisional Officer in the Punjab Irrigation Department on 13.10.1982 on regular basis through the Punjab Civil Writ Petition No. 9624 of 2006 -2- Public Service Commission. He made representations to the respondents on 17.3.1986 and then on 21.5.1991 to count the military service under Rule 4 of the Punjab Government National Emergency Concessions Rules, 1965. His representations are Annexure P-2 and P-3. Subsequently, he filed writ petition No.11985 of 1991 for grant of benefits of military service and Civil Writ Petition No.10386 of 1991 for counting of military service towards the present civil service. These writ petitions were disposed of vide orders Annexure P-4 and P-5 by directing the respondents to pass speaking orders on the representations within a period of three months. The respondents vide order dated 18.11.1991 (Annexure P-6) rejected both the claims on the ground that there was gap of three years between discharge from military service and joining the civil service. The petitioner was discharged from military service on 31.10.1977 and thereafter joined Punjab Government service on 21.10.1982. There is a gap of almost 5 years between two services. 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 Civil Writ Petition No. 9624 of 2006 -3- 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 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. No written statement has been filed. 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 (Annexure P-9). As per Rule 4.3 (b) Note 2 “to be eligible for the concession in this rule, the Civil Writ Petition No. 9624 of 2006 -4- 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 retirement gratuity for service covering both the war and post war period such Civil Writ Petition No. 9624 of 2006 -5- 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. Explanation - For the purpose of this note, it is immaterial whether or not, there was a break Civil Writ Petition No. 9624 of 2006 -6- 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 Air Force on 28.8.1974, thereafter,he joined as lecturer of Political Science on adhoc basis on 23.7.1975 and thereafter he was appointed on regular basis w.e.f. 13.8.1976. 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 discharge and appointment as lecturer on regular basis. By applying the ratio by this Court in Dev Dutt, ASI Civil Writ Petition No. 9624 of 2006 -7- 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 allowed and the order dated 02.3.2006 (Annexure P-8) is set aside and the respondents are directed to give the benefits of service rendered by the petitioner from 27.10.1967 to 31.10.1977 for the purpose of seniority, increments and pension. This exercise will be completed within four months from the date of receipt of certified copy of this order and consequential retirement benefits be released to the petitioner within aforesaid period alongwith interest @ 6% per annum. 25.11.2011 ( RITU BAHRI ) Vijay Asija JUDGE