CWP No.4035 of 2007 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CWP No.4035 of 2007 Date of decision: 12/9/08 Harcharan Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE RAJAN GUPTA Present: Ms. Divya Godara, Advocate, for the petitioner. Ms. Charu Tuli, Senior DAG, Punjab. Rajan Gupta, J. The petitioner has sought a writ of certiorari for quashing order dated 27th December, 2006 (Annexure P-7), passed by the Commandant, 36th Battalion, PAP, Bahadurgarh, Patiala whereby claim of the petitioner to count the period of military service rendered during the first National Emergency for the purpose of increments, seniority, pay fixation and re-fixation of pension has been declined. The petitioner has further prayed that the respondents be directed to count the period of military service rendered by him for the purpose of increments, seniority, pay fixation etc. and accordingly his pension be re-fixed. The petitioner has averred that he was enrolled in the Army CWP No.4035 of 2007 2 on 19th January, 1966 and discharged therefrom on 31st January, 1990. On 4th February, 1993 the petitioner joined the 36th Battalion of Punjab Armed Police, Bahadurgarh, Patiala as a constable. He retired from the said post on 31st October, 2004. The petitioner has relied upon instructions issued by the Government of Punjab vide Notification dated 8th June, 2004 known as Punjab Recruitment of Ex-servicemen (First Amendment) Rules, 2004 to contend that according to Rule 8-A thereof, benefit of military service rendered by him during the first emergency would be counted for the purposes of increments and pension etc. The notification has been annexed as Annexure P-5 to the writ petition. In order to claim benefit of military service, petitioner also served a legal notice dated 27th February, 2006, Annexure P-4 on respondents No.2 and 3. He thereafter filed a writ petition i.e. CWP No.12074 of 2006 before this court. Vide order Annexure P-6, a direction was issued to the respondents to decide the legal notice dated 27th February, 2006 by passing a speaking order. Thereafter, order dated 27th December, 2006, Annexure P-7, was passed by the respondents rejecting the claim of the petitioner, which has been impugned in the present writ petition. A detailed reply has been filed on behalf of the respondents wherein it has been averred that on his retirement from Army, the petitioner was given all retiral benefits like gratuity and pension etc. It was not a case where the petitioner had been discharged as surplus, just after the emergency. The intention of the Legislature in framing the rules was that the ex-servicemen, who had gone on short service, be CWP No.4035 of 2007 3 given benefit of the service rendered in Army, having enlisted during the National Emergency. It has been further contended by the respondents that the petitioner was not entitled for any increments, seniority and pay fixation on account of military service rendered by him. For the purpose of getting this benefit, the period between date of discharge from military service to the date of appointment to any other service or post under the Government, should not exceed one year in order that the same be counted for computing the pension. 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 the Government. However, in the case of the petitioner, he was discharged from Army w.e.f. 31st January, 1990 and he was re-enlisted as constable in the Punjab Armed Police on 4th February, 1993. Thus, period of discharge from military service and reappointment in civil service being more than three years, the petitioner could not claim benefit of the service rendered by him in military. Moreover, the petitioner was also getting pension from the military side w.e.f. 1st February, 1990. He also received retirement gratuity from the defence authority and the same had not been refunded to the State Government by the petitioner. We have heard learned counsel for the parties. Learned counsel for the petitioner has contended that the petitioner joined the Army during the First National Emergency and thus military service rendered by him deserves to be counted for the purpose of increments, seniority, pay fixation and re-fixation of pension. The CWP No.4035 of 2007 4 counsel has placed reliance on notification dated 8th June, 2004, issued by the State Government in this regard. On the other hand, learned counsel for the respondents has also drawn our attention to the notification dated 8th June, 2004 annexed as Annexure R-1 to the reply, which reads thus: “RULES 1. (1) These rules may be called the Punjab Recruitment of Ex-servicemen (Second Amendment) Rules, 2004 (2) They shall come into force at once. 2. In the Punjab Recruitment of Ex-servicemen Rules, 1982, after rule 8, the following rule shall be inserted, namely:- “8-A, increments and pension.- Period of military service rendered during the First National Emergency from 26th October, 1962 to 9th January, 1968 shall count for increments and pension as under:- (i) increments.- The period spent by a person on military service (restricted to emergency period from 26th October, 1962 to 9th January, 1968) 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 Service Rules, Volume II. This concession shall, however, be admissible only on first appointment. (ii) Pension.- The period of military service mentioned in clause. (i) Shall count towards pension only in the case of appointments to permanent services of posts, subject CWP No.4035 of 2007 5 to the following conditions:- (1) The person concerned should not have earned 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 defense 1 authorities shall have to be refunded to the State Government. (3) The period, if any, between the date of discharge from military service and date of appointment to any service or post under the Government 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 the Government. 3. This benefit shall be applicable to all those who were appointed in Government services before or after 11th February, 1982.”. A perusal of the above Rules clearly shows that the petitioner cannot claim any benefit on the basis of the notification dated 8th June, 2004 as the petitioner is already drawing pension under the military rules in respect of military service rendered by him. This apart, the period between his date of discharge from military service and date of appointment in the Punjab Armed Police exceeds three years. Thus, the petitioner has no case on merits. Learned counsel for the respondents has also relied upon a judgment delivered by the Supreme Court in State of Haryana and another Vs. Shri Om Parkash, 2008 (3) RSJ 771 where the apex court CWP No.4035 of 2007 6 while interpreting a pari materia rule i.e. Rule 4 (iii) of Punjab Government National Emergency (Concession) Rules, 1965, held as under:- “A bare reading of the provisions makes the position clear that for the purpose of commuting the period of permanent service, two conditions are to be kept in view. First is that the person concerned should not have earned a pension under Military Rules in respect of military service in question. The second condition in fact has two parts. For the purpose of working out the entitlement, the period if any between the date of discharge from military service and the date of appointment to any service or post under the Government shall count for pension automatically if such period does not exceed one year. But if the period exceeds one year but does not exceed three years, the period may be allowed to be counted in exceptional cases. In other words, the Government must pass an order holding that the case was an exceptional one and, therefore, instead of period of one year, period upto three years could be reckoned for the purpose of computation. If the period is more than three years, there is no scope for including the same for the purpose of working out the pensionary entitlements.” In our view, the ratio of the aforesaid judgment clearly applies to the facts of the present case. Since the petitioner is already drawing pension due to the military service rendered by him and the period between his date of discharge from military service and date of appointment to the police service in Punjab exceeds three years, he is CWP No.4035 of 2007 7 not entitled to claim benefit of military service for the purpose of increments, seniority, pay fixation and re-fixation of pension. The writ petition is thus dismissed with no order as to costs. (RAJAN GUPTA) JUDGE (ASHUTOSH MOHUNTA) JUDGE September 12, 2008 'rajpal'