C.W.P. No. 13004 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P. No. 13004 of 2007 Date of decision : 5.5.2008. ... Hari Chand ................ Petitioner vs. The State of Haryana and others .................Respondents Coram: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice K.C. Puri Present: Sh.Raman B. Garg, Advocate for the petitioner Sh. Harish Rathee, Senior Deputy Advocate General, Haryana. ... Jasbir Singh, J. (Oral) By filing this writ petition, the petitioner has laid challenge to the order dated 26.10.2006 (P-4), vide which benefit of military service, rendered by him during National Emergency, was declined to him for the purpose of pension. It is case of the petitioner that as per the rules known as Punjab Government National Emergency (Concession) Rules, 1965 (in short, the Rules), as are applicable to Haryana, he is entitled to get his military service counted towards qualifying service for pension. To say so, support has been sought from Rule 4 of the Rules referred to above. In response to notice issued by us, reply has been filed, wherein it has been stated that the gap ,when the petitioner left the military service i.e. on 13.4.1969 and entry in service of the State of C.W.P. No. 13004 of 2007 -2- Haryana on 3.8.1979, is more than 10 years, in view of that the petitioner is not entitled to get military service period counted towards qualifying service for pension. Counsel for the parties heard. It is an admitted fact that the State Government has already extended benefit of abovesaid period of military service to the petitioner for the purpose of seniority and increments. The dispute is only with regard to counting of that period for the purpose of grant of pension. Admittedly, petitioner has served the nation during National Emergency between 15.3.1963 to 13.4.1969. After discharge from the Army, he got service with the respondent-State of Haryana on 3.8.1979 and joined on 17.8.1979. To claim and deny relief, both the parties are relying upon the provisions of Rule 4 of the Rules referred to above, which reads thus:- “4. Increments, Seniority and pension:- Period of military service shall count for increments, seniority and pension as under:- (i) xxx xxx xxx (ii) xxx xxx xxx (iii) Pension: The period of military service mentioned in clause (I) shall count towards pension ***(in case of first or any subsequent appointment to any service or post.) under the Govt. subject 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. C.W.P. No. 13004 of 2007 -3- 2) Any bonus or gratuity paid in respect of military service by the defence authority 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.” By referring to condition No.3 of Sub-Rule (iii), Sh. Rathee has tried to convince us that as the gap, when the petitioner left Army and entered services of the State of Haryana, is more than 10 years, as such the service rendered by him in Army cannot be counted towards qualifying service for pension. We feel the stand taken is palpably wrong. Similar matter came up for hearing before a Division Bench of this Court in Dev Dutt, ASI V. State of Punjab and others 1996 (3) RSJ 852, wherein, while interpreting similar provision, it was observed thus :- “3. The request made by the petitioner was not acceded to by the respondents on the ground that there was a gap of more than three years between the date of his discharge from the military service and his joining the Police Telecommunication, Punjab. For this reliance was placed on Sub-Rule 3 Rule 4 of the 1965 Rules, which reads as under:- C.W.P. No. 13004 of 2007 -4- “(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.” 4. Clearly, the respondents, have misread and misinterpreted the aforesaid rule. This rule only provides that the period between the date of discharge from the military service and the date of appointment to any service or post would count for pension provided the same does not exceed one year. It further provides that if the period exceeds one year, then it may be allowed to be counted for the purposes of pension in exceptional circumstances under the orders of the Government but the same shall not exceed more than three years. Petitioner, in the present case, is not claiming pension for the period between his discharge from military service till his appointment in the Police Telecommunication, Punjab. Petitioner is only claiming the relief for the period which he had spent in military during the period when emergency remained in force in the country. Under this Rule, the period for which the petitioner had served in military during the emergency cannot be excluded. Respondents have clearly C.W.P. No. 13004 of 2007 -5- misinterpreted the rule and illegally withheld the benefits of the period spent by the petitioner in the military service during the emergency for the purposes of grant of increments, seniority and pension.” Same is the opinion of the Single Bench of this Court in Sohan Lal V. The State Transport Commissioner Controller, Haryana and others 2000 (2) RSJ 148 and Capt. K.S. Shergill (Retd.) V. State of Punjab and another 2001 (3) RSJ 562. In view of facts mentioned above, we are convinced that case of the petitioner is fully covered by ratio of the judgment rendered in Dev Dutt's case (supra). Accordingly, we allow this writ petition and direct the respondents-authorities to count military service, rendered by the petitioner during National Emergency, towards qualifying service for pension. Needful be done within a period of three months from the date of receipt of a certified copy of this order. Counsel for the petitioner has specifically stated that the petitioner is not getting any pension from the Army. It is made clear that if the petitioner has received any gratuity amount from the Army authorities, he shall deposit the same with the respondents within one month from the date of receipt of a certified copy of this order. ( Jasbir Singh ) Judge ( K.C. Puri ) 5.5.2008. Judge chug