IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1603 of 1989(O&M) Date of decision:28.04.2011 Dr. B.K.Sachdeva ...Petitioner versus State of Haryana and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Sumeet Goel, Advocate, for the petitioner. Mr. Satbir Singh Goripuria, DAG, Haryana, for respondent No.1. None for respondents 2 to 4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. (Oral) 1. The writ petition is for a direction by mandamus to accord the benefit of military service rendered by the petitioner during the period of emergency with further direction that the petitioner be accorded due seniority and to be shown as seniors to respondents 2 to 4. The issue of seniority does not obtain any relevance now at this length of time in view of the fact that the petitioner has also since been superannuated from service and the case stands consideration only on the issue of whether the writ petitioner is entitled to count the military Civil Writ Petition No.1603 of 1989 (O&M) - 2 - service for the purpose of computing the years of service which may have a bearing on his terminal benefits. It is seen through the details provided by the petitioner that he entered into service in Class-III post on 09.06.1960 and promoted on 06.07.1970 to Class-II post. Between the date of initial entry and his promotion, he had spent in military service during the period 01.07.1964 to 19.12.1969 when he re-joined his parent department. He claimed his entry to the post of reserved ex-serviceman and the promotion itself was granted to him on such basis. He was further promoted on 05.09.1976. 2. The learned counsel would rely on the rules 4 and 5 of the Punjab Government, National Emergency (Concessions) Rules, 1965. The relevant rules are set out in the writ petition and are reproduced here: “Rule 4: Increments, 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, shall count for increments, where no such minimum age is prescribed the minimum age shall be as laid down in Rule 3.9, 3.10 and 3.11 of the Punjab Civil Services 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 Civil Writ Petition No.1603 of 1989 (O&M) - 3 - purpose of determining the seniority of a person who has rendered military service. xx xx xx Rule 5: Seniority, promotion, increment, pension and leave of Government Employees:- The period spent on military service by a Government employee shall count for seniority promotion, increment and pension in the service or post held by him immediately before his joining military service. A temporary Government employee shall during military service be governed by the military rules in all respects. The employee concerned shall be entitled to proforma promotion in his parent departments under the 'next below' rule and also to seniority in higher posts to which he would otherwise have been entitled if he had not joined military service.” 3. Rule 5 is particularly relevant, for, it states that a period spent on military service will count for seniority and promotion in the service of post held him immediately before he joined military service. It also brings out the fact that the temporary government employee shall be governed by military rules in all respects. Such an employee shall also be entitled to adhoc promotion in the parent department under the next below rule as well as to the seniority in the higher post which he would have otherwise got if he had not joined the military service. It is another way of saying that by opting to the military service, he cannot come under any disability. The petitioner also has given evidence of the fact Civil Writ Petition No.1603 of 1989 (O&M) - 4 - that in yet another case relating to person by name Dr.S.N.Sharma, the period of military service from 01.07.1964 to 09.01.1968 during the proclamation of emergency was directed to be considered towards fixation of seniority on the post of Deputy Director which he held. The order directed an advancement of the date of promotion from 03.08.1976 to 25.01.1973 and the seniority was refixed on that basis. The petitioner refers to the fact that similar benefits were also given to other persons, Dr. J.L. Bhutani, Dr.N.S.Rathee and Dr.R.S.Panghal. They were holding various posts and all of whom obtained the benefit of the military service for computation of the seniority and promotions. 4. The contention in reply by the State is that the petitioner had already drawn the benefit of his military service by gaining the promotion on 06.07.1970 in securing the posting against a reserved post for an ex-serviceman. This, according to the State, would mean that he had already stood by the benefit of military service and he cannot also take, therefore, the period of service spent in military service during emergency for counting this period of service. This, in my view, is totally illogical. If a person's service in military were to be reckoned for a promotion, it could be only on the basis that the service in military itself was to be taken to be relevant and a promotion granted to him for a reserved post cannot deny to him the period of his military service. It would mean that Article 14 stand violated if the petitioner were alone denied such a benefit when other officers were granted the benefit of military service. Civil Writ Petition No.1603 of 1989 (O&M) - 5 - 5. By an order dated 05.09.1989, this Court was pleased to direct that the case will be taken up after the hearing of the case in CWP No.673 of 1988. CWP No.673 of 1988 is seen to have been disposed of in line with the judgment in CWP No.382 of 1988. I have seen through the judgment of this Court in CWP No.382 of 1988 and the point involved in the case was in relation to the manner of reckoning seniority for Class-I officers in Haryana Veterinary Service. Indisputably, the petitioner belonged to Haryana Veterinary Service. The Court in the above case was considering the manner of reckoning seniority in the light of provincial veterinary service. Dealing with the issue by making reference to Rules 19 and 30(1), the Bench held that the seniority will be counted from the date when he joined the Class-I service whether on probation or otherwise and the entire length of Class-I service has to be taken in fixing the date of seniority. This has relevant to us for on seeing whether the fact that the petitioner entered in the service on adhoc basis initially will come in the way of claiming the military service when he was promoted in Class-II service in the year, 1970 and further obtained a promotion to Class-I service in the year, 1976. I hold that as per the relevant rules considered in CWP No.382 of 1988, the petitioner must be deemed to have entered the service from the day he joined the above service and will be entitled to count the military service. 6. The petitioner is entitled to succeed on the reading of the rules 4 and 5 and also in view of how the other officers have been dealt with and how they secured the benefit of military service as going to count for their length of service. The reference to a decision in CWP Civil Writ Petition No.1603 of 1989 (O&M) - 6 - No.382 of 1988 is merely incidental for consideration of the fact of a person, who had joined the service on adhoc basis and how the length of service were to be reckoned. On a joint consideration of all the above issues, the petitioner is entitled to the reliefs as sought for but they shall be restricted only to the computation of the terminal benefits. The amount due to the petitioner by such computation shall be made within a period of 12 weeks from the date of receipt of copy of this order. The issue of seniority does not merit consideration now in view of the subsequent event that the petitioner himself was retired from service. 7. The writ petition is allowed to the above extent. (K.KANNAN) JUDGE 28.04.2011 sanjeev