Civil Writ Petition No. 11903 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11903 of 2002 Date of decision:- 25.11.2011 Raj Pal Gupta ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. B.S. Sehgal, Advocate for the petitioner. Mr. D.S. Nalwa, Addl. A.G. Haryana. RITU BAHRI J. The petitioner is seeking a writ of certiorari for quashing of order dated 16.5.2002 (Annexure P-12) rejecting the claim of the petitioner regarding counting of Air Force Service towards civil service for the purpose of retiral benefits in accordance with Rule 4.3 of the Punjab Civil Services Rules, Volume-II. Petitioner's date of birth is 13.5.1947 and enrolled in the Indian Air Force on 7.11.1965. He served during the operation of emergency in 1965 from 9.11.1965 to 10.1.1968. He served the Indian Air Force from 09.11.1965 to 30.11.1974 for a total period of 9 years and 21 days. The service rendered in the Airforce was not of 15 years so as to enable him to get Civil Writ Petition No. 11903 of 2002 -2- service pension. He was granted gratuity of Rs.3276/- and D.C.R.G. for Rs.1428/- only. The discharge certificate issued by the Indian Air Force is Annexure P-1. He was appointed as Taxation Inspector against the post reserved for ex-servicemen on 11.12.1981 and joined on 12.12.1981. He made number of representations to the Department to grant the benefits of military service towards pensionary benefits under the Punjab Government National Emergency Concessions Rules, 1965 as applicable to the State of Haryana. One of his representation is dated 14.5.1983 (Annexure P-2). After his discharge from Indian Air Force on 30.11.1974 there is a gap of almost 7 years when he joined as Taxation Inspector on 12.12.1981. Vide order dated 16.5.2002 (Annexure P-12), claim of the petitioner was rejected. In the written statement filed by the respondent-Department the ground for not extending the benefit is that there is a gap of more than three years between the discharge from the Air Force and joining the civil service. The petitioner had joined during the emergency, therefore, he had a right to be considered under the Punjab Government National Emergency Concession Rules, 1965. His claim was rejected on the ground that under Rule 4(3) of the Punjab National Emergency Concession Rules, 1965 there is a gap of more than 3 years, therefore, the military service cannot be counted. Mr. B.S. Sehgal, counsel for the petitioner has argued Civil Writ Petition No. 11903 of 2002 -3- 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 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. D.S. Nalwa, 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 Civil Writ Petition No. 11903 of 2002 -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 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 Civil Writ Petition No. 11903 of 2002 -5- 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 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 Civil Writ Petition No. 11903 of 2002 -6- 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 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) Civil Writ Petition No. 11903 of 2002 -7- 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 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 16.5.2002 (Annexure P-12) is set aside and the respondents are directed to give the benefits of service rendered by the petitioner from 9.11.1965 to 30.11.1974 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