REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 06, 2010 State of Haryana and others .....Appellants VERSUS Om Pal Singh ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sunil Nehra, Sr.DAG, Haryana, for the appellants. Mr. Amit Jain, Advocate, for the respondent. **** RANJIT SINGH, J. The issue in this Regular Second Appeal relates to the grant of military service benefit for the period the respondent had served in the Army during emergency. The respondent-plaintiff had filed a suit, pleading that he was entitled to the benefit of military service of 5 years 2 months and 16 days as he had served in the Army for this period during emergency. The respondent-plaintiff had subsequently joined Class IV employee in the office of Civil Surgeon, Gurgaon, on 5.7.1980. He retired on superannuation on 31.3.2004. REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 2 }: When the Army service rendered during emergency was not counted towards pension and gratuity, the respondent-plaintiff filed this suit. In response to notice, the defendants filed a joint written statement taking preliminary objection about the maintainability of the suit besides pleading that there was no cause of action. It is conceded that the respondent-plaintiff was given benefit of military service towards increments but he was not entitled to count this service for grant of gratuity and pensionary benefits because there was a gap of 11 years in between his discharge from the military service and his joining of the Health Department. On the basis of the pleading, following issues were framed:- “1. Whether the plaintiff is entitled to get benefit of military services as alleged? OPP 2. If issue No.1 is proved whether the plaintiff is entitled to get revised pension and gratuity? OPP 3. If issue No.1 & 2 are proved, whether the plaintiff is entitled to interest on the delayed payment? If so its effect? OPP 4. Whether the suit is not maintainable in the present form? OPP 5. Whether the plaintiff has no cause of action for filing present suit? OPP 6. Whether the plaintiff has not come to the court with clean hands? If so its effect? OPP 7. Relief.” The Trial Court decreed the suit. The State had filed REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 3 }: appeal but the same was dismissed. The State accordingly has filed this Regular Second Appeal. The issue under consideration for counting the period of military service rendered during emergency has been subject matter of consideration in some earlier cases as well. Still, the State counsel has ventured to make another attempt to contend that when there is a gap of more than 3 years between the discharge and joining on the civil post, the entire service rendered during emergency can not be countable for the purpose of grant of pension and gratuity etc. This issue already has been decided against the State. The submission on these lines has been made on the support of judgment in the case of State of Haryana and another Vs. Shri Om Parkash, 2006 (4) SLR 765. The precise submission on these lines was advanced on behalf of the State in another Regular Second Appeal No.1833 of 2008 (State of Haryana and others Vs. S.R.Yadav) decided on 20.1.2010. To be fair to the State counsel, he referred to the said judgment and the view expressed therein by this Court but still prayed for reopening and reconsidering the same issue in the light of observations made by the Hon'ble Supreme Court. The State counsel has read the judgment in the case of Om Parkash (supra) in extenso. He would also refer to Rule 4 (iii) of Punjab Government National Emergency (Concession) Rules, 1965 (for short, “the Rules”) to urge that where the gap is more than three years, the entire service rendered during emergency would be lost for counting for the purpose of pension and gratuity. This precise submission, as raised by the learned counsel, was considered in the REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 4 }: case of S.R.Yadav (supra) and it was observed as under:- “This rule cannot be read to mean that the entire period of military service would stand forfeited and would not be countable towards pension in case the gap between the discharge and the joining of the post under the Government is more than three years. The observations made in the case of Om Parkash (supra) have been minutely perused by me. This judgment can not be read in the manner as is being suggested by the State counsel to say that if a gap is more than 3 years then military service would not be countable for pension. The relevant part of the same reads as under:- “But if the period exceeds one year but does not exceed three years, the period may be allowed to be counted in exceptional cases. In other words, the Government must pass an order holding that the case was an exceptional one and, therefore, instead of period of one year, period upto three years could be reckoned for the purpose of computation. If the period is more than three years, there is no scope for including the same for the purpose of working out the pensionary entitlements.” The word `same' (underline above) would be significant and mean the period of gap alone.” Not only that, a reference was made to a Division Bench judgment of this Court Dev Dutt, ASI Vs. State of Punjab and others, 1996(3) RSJ 852, where this rule was interpreted. It has clearly been held in this case that under this rule the period for which REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 5 }: the person had served the Military during emergency cannot be excluded and it was accordingly observed that respondent- Government had clearly misinterpreted the rule and illegally withheld the benefits of the period spent by the respondent in Military service for the grant of increments, seniority and pension. A similar view was earlier expressed by another Division Bench of this Court in Civil Writ Petition No.7254 of 1998, decided on 6.7.1999. The relevant observations made in this case are as under:- ““As observed above, the respondents are not correctly reading the rule to deny the benefit of military service rendered during the emergency for purpose of pension. Since the petitioner had joined civil service more than one year after his discharge from the Armed Forces, he would not be entitled to count the period between the date of his discharge and his joining the civil service for purpose of pension, but would be entitled only to count the period of service rendered during the emergency for purpose of pension. If the interpretation as put forth by the respondents is accepted, then rule 4(iii)(3) would be otiose inasmuch as the military service rendered during the emergency is countable for purpose of increments as well as the seniority on a deeming fiction as if for the period of service rendered during the emergency such an ex-serviceman had in fact been in civil service. If such period is to be counted for purpose of increments and seniority, the same cannot be denied for purpose of REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 6 }: pension. Even this is not the spirit of Rule 4(iii)(3). Rule 4 (iii)(3) gives rather further benefit to an ex-serviceman to count that period of service between his discharge from the Armed Forces and re-joining the civil service for purpose of pension if that interregnum period is not exceeding one year.” Despite the above position, I have still considered the submissions made by the learned State counsel. The submission flows from the contents of Rule 4 (iii), which is as under:- “4(iii) Increments, Seniority and Pension-Period of Military service shall count for increments, seniority and pension as under:- Pension: The period of military service mentioned in Clause-I shall count towards pension only in the case of appointments of permanent 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. (2)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 3 years may also be allowed to count for pension in exceptional cases under the orders of the Government.” REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 7 }: A perusal of the Rule would show that this provision was made by the State to grant the benefit of military service for counting the same for the purpose of increments, seniority and pension. The basic aim of the Rule was to count the military service rendered during emergency for the purposes of increment, seniority and pension but this was to be on the conditions as given in this Rule. First condition is that the person concerned should not have earned a pension under Military Rules. If that is so, obviously, the service may not be counted towards pension as it would then lead to grant of two pensions for the same service. The second condition again is in the positive form and it provides that period if any, between the date of discharge from military service and date of appointment to any service or a post under the Government is also to count for pension but it will so count if such period does not exceed one year. Any period exceeding one year and not exceeding three years may also be allowed to count for pension in exceptional cases under the orders of the Government. The wording of Rule 4(iii)(2) is very clear and it is making a provision for counting “the period, if any, between the date of discharge from Military service and the date of appointment under the Government.”, which is a gap between the date of discharge from the military service and the date of appointment to any service or post in civil. If the gap is not exceeding one year, then this period of gap would also be countable towards pension, increment and seniority alongwith the service rendered during emergency, which in any case has to be counted for these purposes, the aim of the Rule being such. If the period exceeds one year but not three years, still the gap would be REGULAR SECOND APPEAL NO.1497 OF 2009 (O&M) :{ 8 }: countable but under the orders of the Government and in exceptional cases. Once a provision is being made for grant of benefit, this can not be read in a manner to take away something, the primary aim of the Rule being to provide the benefit. The purpose of this Rule was to make provision for grant of benefit of military service rendered during emergency for the purpose of increment, pension and gratuity and any provision made thereunder can not be read in a manner to undo the very basic aim and purpose of the Rule. To my mind, Rule 4 (iii) (2), thus, is clearly regulating the period of gap for the purpose of counting the same for increment pension etc. and not that this can be read to take away certain rights, which had been granted under the Rules. Significantly, the appellants have themselves given the benefit of the emergency service for increments. Thus, how can, this be denied for pension when all these benefits are available under the same Rules. The submissions made by the learned counsel for the appellant-State, thus, are clearly misplaced. The judgment of the Hon'ble Supreme Court can not be read in the manner as is being interpreted by the State counsel. This judgment, as already noted in the case of S.R.Yadav (supra) was only talking about the gap between the two sets of services and not about the service rendered by an individual during emergency. The substantial question of law has rightly been decided by both the Courts below and would not call for any interference. The Regular Second Appeal is, therefore, dismissed. April 06, 2010 ( RANJIT SINGH ) khurmi JUDGE