Civil Writ Petition No.12581 of 2007. -1- In the High Court of Punjab and Haryana at Chandigarh. Civil Writ Petition No.12581 of 2007. Date of decision:13.5.2008. Sumer Singh. ..Petitioner. Versus State of Haryana and others. ...Respondents. ... Coram: Hon'ble Mr. Justice Jasbir Singh. Hon'ble Mr. Justice K. C. Puri. ... Present: Ms. Alka Chatrath Advocate for the petitioner. Mr. Harish Rathee, Senior DAG Haryana. ... K. C. Puri, J. Judgment. Through the instant Civil Writ Petition filed under Articles 226/227 of the Constitution, the petitioner seeks a writ in the nature of Certiorari for quashing the action of the respondents in not counting the service rendered by him from 9.3.1965 to 10.1.1968 and the service rendered by him on ad hoc basis from 28.6.1986 to 30.9.1988 for the purposes of grant of pensionary benefits as the same is not only illegal Civil Writ Petition No.12581 of 2007. -2- and arbitrary but is in violation of the instructions of the Haryana Government and the judgment of this Court. He also sought a writ in the nature of Mandamus directing the respondents to count the service rendered by him in the Indian Navy during National Emergency from 9.3.1965 to 10.1.1968 and ad hoc service rendered by him from 28.6.1986 to 30.9.1988. The case of the petitioner, in brief, is that he volunteered himself to join Indian Navy on 9.3.1965. He was released from the Indian Navy on 31.7.1983. He applied for the post of Radio & TV Instructor in the Department of Industrial Training & Vocational Education, Haryana, as he was possessing the requisite qualifications for the said post. In pursuance of selection, he joined at ITI Sonepat on 28.6.1986. He continued working on that post to the entire satisfaction of the authorities. Thereafter, as per policy of the Haryana Government dated 30.9.1988, the services of all the employees working on ad hoc basis who have completed two years of service as on 30.9.1988, were regularised with effect from 30.9.1988 and accordingly his services were also regularised with effect from 30.9.1988. He retired from the service on attaining the age of superannuation on 30.9.2006. It is further pleaded that in the year 1965, instructions were issued by the Central Government for the grant of benefits of service rendered during emergency. The Punjab Government framed Rules called Punjab Government National Emergency (Concession) Rules, Civil Writ Petition No.12581 of 2007. -3- 1965. The Government of Haryana issued notification on 19.2.1991 regarding grant of military service benefits to the Ex-servicemen under the Punjab Government National Emergency (Concession) Rules, 1965, clarifying 1965 Rules, in view of judgment delivered by the Hon'ble Supreme Court in Civil Appeal No.1007/1990 titled Dhan Singh Versus State of Haryana and others. The Government of Haryana clarified the above mentioned instructions as follows:- “The benefit of military service would be admissible to those Ex-servicemen who joined the military service during the period of emergency i.e. 26.10.1962 to 10.1.1968. The benefit of military service would be limited to the period of service rendered during the emergency period only”. The petitioner made various representations for the purposes of counting his ad hoc service from 28.6.1986 to 30.9.1988 and service rendered from 9.3.1965 to 10.1.1968 during emergency. Respondent Nos.1 and 2 filed joint written reply, contesting the claim of the petitioner and have pleaded that the petitioner although was regularised from 30.9.1988 but his service for pensionary benefits has been counted from 28.11.1985. The petitioner made representation on 28.10.1992 after six years of joining the State Government Service. His representation was decided vide order dated 23.4.2001 and he was granted the benefit of annual increments and leave and, on that count, he is assumed to be in service from Civil Writ Petition No.12581 of 2007. -4- 28.11.1985 instead of 30.9.1988 when he was regularised. The petitioner again submitted a representation for granting him the benefit of seniority on 14.2.2002 which was decided on 11.2.2003, Annexure R-2 and he was conveyed that he cannot be given the said benefit. We have heard arguments addressed by both the sides and have gone through the record of the case. During the course of arguments, Mr. Rathee, has submitted that so far as ad hoc service rendered by the petitioner followed by regular service from 28.6.1986 to 30.9.1988 is concerned, the benefit of the same has been given to the petitioner for the purposes of pension as his service from 28.11.1985 has been counted. Otherwise also ,in authority reported as Kesar Chand,resident of village Naroli v. State of Punjab and others, AIR 1988 Punjab and Haryana 265, a Full Bench of Punjab and Haryana High Court has held that an employee is entitled to count the ad hoc service followed by regular service for the purpose of pensionary benefits. The relevant portion of the judgment is reproduced hereunder:- “Once the services of a work-charged employee have been regularised, there is no logic to deprive him of the pensionary benefits as are available to other public servants under rule 3.17 of the Rules. Equal protection of laws must mean the protection of equal laws for all persons similarly situated. Article 14 strikes at arbitrariness because a Civil Writ Petition No.12581 of 2007. -5- provision which is arbitrary involves the negation of equality. Even the temporary or officiating service under the State Government has to be reckoned for determining the qualifying service. It looks to be illogical that the period of service spent by an employee in a work-charged establishment before his regularisation has not been taken into consideration for determining his qualifying service. The classification which is sought to be made among Government servants who are eligible for pension and those who started as work-charged employees and their services regularised subsequently, and the others is not based on any intelligible criteria and,therefore, is not sustainable at law. After the services of a work-charged employee have been regularised, he is a public servant like any other servant. To deprive him of the pension is not only unjust and inequitable but is hit by the vice of arbitrariness, and for these reasons the provisions of sub-rule (ii) of rule 3.17 of the Rules would be liable to be struck down being violative of Art.14 of the Constitution. The fact that the authorities had granted exemption from rules in certain cases would not be justifiable reason for excluding others from the grant of pension and gratuity benefits. For this reason too, rule 3.17 (ii) is bad at law, as it enables the Civil Writ Petition No.12581 of 2007. -6- Government to discriminate between employees similarly situated.” So, it is held that the petitioner is entitled to count his ad hoc service from 28.6.1986 to 30.9.1988 for the purposes of pensionary benefits. So far as the counting of military service from 9.3.1965 to 10.1.1968 during emergency for the purposes of pensionary benefits is concerned, instructions were issued by the Central Government for the grant of benefits for the service rendered during emergency. The Punjab Government framed Rules called Punjab Government National Emergency (Concessions) Rules, 1965. The relevant extract of these Rules is reproduced below:- xx xx xx 2. Definition:- For the purpose of these Rules, the expression 'military service' means enrolled or commissioned service in any of the three wings of the Indian Armed Forces (including service as a Warrant Officer) rendered by a person during the period of Operation or the Proclamation of Emergency made by the President under Article 352 of the Constitution on 26th October, 1962 or such other service as may hereafter be declared as military service for the purposes of these rules. Any period of military training followed by military service Civil Writ Petition No.12581 of 2007. -7- shall also be reckoned as military service. xx xx xx 4. Increment, seniority and pension-Period of military service shall count for increments, seniority and pension as under:- (i) Increments- The period spent by a person on military service, after attaining the minimum age prescribed for appointment to any service or post, to which he is appointed 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) Seniority- The period of military service mentioned in clause (I) shall be taken into consideration for the purpose of determining the seniority of person who has rendered military service. (iii) Pension- The period of military service mentioned in clause (ii) shall count towards pension only, in the case of appointments to permanent services or posts under the Government subject to the following conditions:- (1) The person concerned should not have earned Civil Writ Petition No.12581 of 2007. -8- 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 defence authorities shall have to be refunded to the State Government. (3) 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, 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.” The respondents have given the benefit of counting military service from 9.3.1965 to 10.1.1968 for the purposes of granting increments, but it so seems that the same has not been granted to the petitioner for the purposes of pensionary benefits. The Government of Haryana issued notification No.19291 regarding counting of military service during emergency,in view of authority of the Supreme Court in Civil Appeal No.1007 of 1990 titled as Dhan Singh Versus State of Haryana and others. The period of military service from 9.3.1965 to 10.1.1968 is during the emergency period. So, there is no reason for not counting the said period of service for the purposes of pension, moreso when the respondents themselves have counted the said service for the Civil Writ Petition No.12581 of 2007. -9- purposes of grant of pension. Counsel for the petitioner has submitted that the petitioner is not getting pension in lieu of military service. However, any bonus and gratuity paid in respect of military service by the defence authorities shall have to be refunded by the petitioner to the State Government. So, in view of above discussion, this writ petition stands allowed. The respondents are directed to re-fix the pension after taking into account the military service rendered by the petitioner from 9.3.1965 to 10.1.1968 during emergency and also the service rendered by him on ad hoc basis from 28.6.1986 to 30.9.1988 followed by regular service. ( K. C. Puri ) Judge May 13,2008. ( Jasbir Singh ) Jaggi Judge