--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No.337 of 2010. Decided on: July 25, 2012. Bhim Singh Jaryal, S/o Shri Lehna Singh, R/o Village Jhamrara, P.O. Rit, Tehsil Jaisinghpur, District Kangra, H.P. …… Petitioner. Versus 1. The Himachal Pradesh State Electricity Board, through its Secretary, Vidyut Bhawan, Shimla, H.P. 2. The Superintending Engineer, OP Circle, HPSEB, Kangra, H.P. ….Respondents. Civil Writ Petition under Articles 226 of the Constitution of India for counting the military service, consequently releasing the retiral benefits thereof. ____________________________________________________________ Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the petitioner : Mr. Ranjan Sharma, Advocate, For the respondents : Mr. Trilok Jamwal Advocate with Mr. Anil God, Advocate. Surinder Singh, J (oral): By means of the present petition preferred under Article 226 of the Constitution of India, the petitioner seeks to set-aside and quash the order Annexure P-8 dated 30.7.2007, whereby the respondents - 2 - denied the counting of his military service towards pensionary benefits. 2. In brief, the facts giving rise to the petition can be stated thus. The petitioner was enrolled in J&K Rifles of the Indian Army and served for 4 years and about 11 months. He was discharged on compassionate grounds under Item/ Section (III)(IV) of the table annexed to the Army Rule 13 AA, thereafter he sought civil employment in the respondent-State Electricity Board as a Clerk on 19.9.1973. Annexure P-3 is his appointment letter. He was confirmed on the said post on and w.e.f. 24.6.1987. 3. The petitioner during his service submitted an option (Annexure P-5) on 5.6.1988 to the respondent- Board to count his military service rendered w.e.f. 15.5.1967 to 9.4.1972 towards pension under Rule 19 of CCS (Pension) Rules, 1972, hereinafter referred to as “the Pension Rules”. 4. The petitioner retired on 30.4.2005 after rendering 31 years 6 months and 13 days civil service in the Board aforesaid. Though, the respondent-Board accorded the pensionary benefits for the said service, but declined to count the military service towards - 3 - pensionary benefits, vide Annexure P-8, firstly on the ground that he was discharged on compassionate ground as per entry in his discharge book and secondly that though the petitioner did not receive any retirement gratuity from the Armed Forces, but in view of the fact that no amount of gratuity was deposited by the petitioner with the respondent-Board, therefore, under Rule 19 of the Pension Rules for counting of previous military service would not apply. 5. The petitioner made his representation dated 28.4.2008 Annexure P-9, to the Secretary of the respondent-Board, against the said order against the said order, but yielded no result. Ultimately a legal notice was issued followed by a reminder, even despite that there was no response. As such, the petitioner filed the present petition seeking the above relief. 6. The respondents in their reply took up the same stand as contained in Annexure P-8 for declining the benefits sought by the petitioner. The petitioner also filed rejoinder clarifying to position of pension rule aforesaid and wrongly treating him a separate class. 7. Shri Ranjan Sharma, learned counsel for the petitioner argued that the respondent took up the plea - 4 - that the words “if any” occurring under Rule 19 (1)(b) of the Pension Rules also to be read in context with the amount of gratuity referred under Rule, as a whole have to be read harmoniously with the other clauses of this rule not in isolation. In case the refund as in this rule is to be sought for by the respondent, can only be asked for, in case, these benefits were received on account of army service on discharge but not otherwise. If this refund is required to be made, irrespective of being received, then it will render the object of the rule meaningless and this requirement of refund in any case applies to those who had in fact received it. Any other interpretation will render the object and the rule as meaningless and redundant. Thus, the rule sought to be interpreted otherwise, when its compliance is impossible then to deny the pensionary benefits to the petitioner is not permissible. It is further argued that all the ex-military personnel constitute a class within itself and there cannot be a sub-class without any reasonable classification. 8. On the other hand, Shri Trilok Jamwal, learned counsel duly assisted by Shri Anil God, Advocate, for the respondent-Board, tried to counter the above arguments saying that the word “if any” under Rule 19(1)(b) of the Pension Rules makes it incumbent upon the petitioner to deposit the pension/commuted pension/ gratuity even if not received. 9. I have thoughtfully considered the rival contentions of the parties in the light of established legal principles. - 5 - 10. In Raj Pal Sharma and Others v. State of Haryana and Others alongwith connected matters [1985 (Supp) SCC 72], the apex Court while considering the Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965, which provides for the counting the period of military service for increment, seniority and pension to the ex-servicemen, which was denied to those who were discharged on compassionate ground was held to be void and illegal being violative of Article 14 of the Constitution and it was observed that ex-military personnel constitute a singular class. Thus, it was held that all those persons released from military service constitute one class and it is not possible to single out certain persons of the same class for differential treatment and that there appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners in that case were deprived of the equal opportunity. In other words, the ex-military personnels retired on compassionate grounds cannot disentitle them as they also fell within the same class irrespective of the ground on which they were released - 6 - was not material if once they are held to be ex-military servicemen. 11. The above judgment was further followed by the Supreme Court in Dhan Singh and Others v. State of Haryana and Others and other connected matters [ 1991 Supp (2) SCC 190] holding that the ex-servicemen personnel, who had been released from the military service on compassionate grounds are also entitled for the benefit of their military service. 12. Therefore, in view of the above settled law, the petitioner cannot be denied the benefit of his military service on the ground that he was discharged from military service on compassionate grounds cannot be treated a separate class. 13. Next, the respondent-Board, as already stated above has taken a plea that the words “if any” under Rule 19(1)(b) of the Pension Rules has only to be read in context with the gratuity alone. But in my considered opinion, it is not so. The rule aforesaid has three limbs. The words “if any” are to be construed in the context of pension, commuted pension and gratuity, because if a person retires from the military service, who is given the pension/ commuted pension and gratuity and does not opt to refund the gratuity. - 7 - 14. I agree with this contention of the learned counsel for the petitioner that any such interpretation as sought to be interpreted by the counsel for respondents will certainly violate the object of the rule and further any such interpretation if carves out a sub- class within the same homogenous class is impermissible and will render sub rule (4) of Rule 19 of the above rule as ‘redundant’ which provides that in case of a Government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the “death gratuity” which may become payable to his family. Therefore, the ex-military personnel, who does not receive the aforesaid components cannot be denied the benefit of counting their military service towards civil service by any means. This rule can be summed up by the maxims of lex non cogit ad impossibilia i.e. the law does not compel the performance of what is impossible inter alia from the nature and character of the act itself. The performance of what is plainly impossible and beyond the power of man to perform, there is no obligation for its performance. - 8 - 15. The aforesaid maxim is based upon the equity which is founded upon justice and good sense. The application of this maxim has been approved by the Apex Court in its various judgments including Employees’ State Insurance Corporation and Others v. Jardine Henderson Staff Association and Others [(2006) 6 SCC 581]. 16. Also the apex Court in Binani Zinc Limited v. Kerala State Electricity Board and others [(2009) 11 SCC 244] in para 35 held as under:- “It is also a well settled principle of law that a statute does not envisage doing anything which is impossible to be done. Lex non cogit ad impossibilia Gausa ommiss Gausa ommiss is a well known principle. It would be absurd to suggest that the principles required to be adopted by the Commission were per force required to be adopted by the Electricity Boards despite the fact that the Commission did not come into existence.” 17. Therefore, by applying the above settled principle of law, the harmonious reading of section 19(1)(b) of the Pension Rules certainly requires to give its rightful meaning, that in case the benefits are given to the petitioner only in that even, he is required to refund not otherwise. The Supreme Court in Union of India V. - 9 - Ind-Swift Laboratories Ltd [ (2011) 4 SCC 635] also held that in the garb of reading down a provision it is not open to read words and expressions not found in the provisions/ statute and thus venture into a kind of judicial legislation. It was also held that the rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provision of the statute. 18. Therefore, for the afore-stated reasons, the respondent-Board is not justified in insisting upon the petitioner to refund the pension or gratuity which was never received by him and also for not counting the previous military service of the petitioner alongwith the civil service rendered by him for the purpose of pensionary benefits, as such, Annexure P-8 is hereby quashed and set-aside leaving contrary to the well established principles of law. Accordingly the petition is allowed. 19. Consequently, the respondents are hereby directed to count the military service as qualifying service combined with the civil service renderd by the petitioner in the respondent-Board for the purpose of pension/ commuted pension and other retiral benefits - 10 - under Rule 19 of the CCS (Pension) Rules, 1972 and such revised retiral benefits shall be paid by the respondents to the petitioner within a period of three months from the date of production of the certified copy of this judgment/ order to the Secretary of respondent-Board. 20. In view of the above, the petition stands disposed of, so also the pending application (s), if any. (Surinder Singh ) July 25, 2012. Judge (Pds)