CWP No. 2592 of 1991. ::-1 -:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 2592 of 1991. Date of Decision: 09th December, 2008. Munsha Singh ....Petitioner through Mr. G.S.Bal, Advocate Versus The State of Punjab & Ors. Respondents through Mr. G.S.Attariwala, Addl.AG, Punjab. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL) This writ petition seeks quashing of the order dated 17.7.1990 [Annexure P-7] passed by the Government of Punjab, in its Department of Finance whereby the benefit of 'Military Service' towards pension has been denied to the petitioner by refusing to condone the break in his 'military' and 'civil service'. The Certificate of Services dated 23.4.1953 [Annexure P-2] shows that the petitioner had served with the Punjab Regiment in the pre-independence era from 5.2.1941 to 4.8.1946. Thereafter, he was enrolled in the Indian Army on 24.2.1949 and was discharged on 23.4.1953. The petitioner joined as a Driver on work-charge basis in the PWD [B&R] Department on 12.4.1972 and his services were later on regularized w.e.f. 1.4.1979. He retired on attaining the age of superannuation at the age of 58 years w.e.f. 31.5.1985. The petitioner thereafter appears to have represented to CWP No. 2592 of 1991. ::-2 -:: get the military service counted, rendered by him in two different spans, referred to above, towards the pensionary benefits. It further appears that his claim was founded upon Rule 4.3 read with Rule 4.6A of Chapter IV of the Punjab Civil Service Rules, Volume II. Rules 4.3 and 4.6A read as follows:- 4.3[a] Service rendered by an employee belonging to one of the classes mentioned in the schedule below after attaining the age of 18 years, which is pensionable under military rules, but which terminates before a pension has been earned in respect of it, may, at the discretion of Government, be allowed to count, when followed by service qualifying for pension under civil rules, as part of such service: Provided that any bonus or gratuity received in lieu of pensions, on or since, discharge from military service, shall be refunded in such number of monthly installments, not normally exceeding 36 and beginning from such date, as in each case, the Government may decide. Service so allowed to count shall, however, be restricted to service, within or outside the employees unit or department, in India or elsewhere, which has been paid for from Indian revenues or for which a pensionary contribution has been received by Indian revenues. In the case of Defence Security Corps personnel re-employed in any civil posts, however, only half of the service rendered by them in the Defence Security Corps shall count for the purpose of pensionary benefits. [b] Service pensionable under military rules which does not terminate before a pension has been earned in respect of it shall not be allowed to count for pension under civil rules without the sanction of the competent authority. Note 1. - An officer, ex-soldier, ex-sailor or ex-airman will CWP No. 2592 of 1991. ::-3 -:: not be brought under the operation of this rule, as a matter of course. Each case will be decided on its merits, e.g. There may be cases in which it may be open to a claimant for pension to add in order to claim the benefit of a military pension. In such cases it may be to the advantage of the claimant that he should not be brought under the operation of this rule. The bearing of paragraph 574 of the Pay and Allowance Regulations of the Army in India, Part II, on the position of soldiers of the Indian Army who re-entered during the Great War, deserves consideration in this connection. Note 2. - To be eligible for the concession in this rule, the individual concerned should take his discharge from the Army, Navy or Air Force within 12 months of the date of his confirmation in the post pensionable under civil rules. This limit will be relaxed by competent authority only in special cases. Note 4. - Omitted ”. 4.6A. War Service rendered by itself or in conjunction with other military service shall count in full towards civil pension subject to the conditions, namely:- [i] the officer concerned should not have earned a pension under the military rules in respect of the service in question. [ii] in the case of services or posts in respect of which a minimum age is fixed for recruitment to military or war service rendered below that age shall be allowed to count for pension. [iii] 'War Service' rendered in the Armed Forces of India and rendered in similar forces of a Commonwealth Country shall be allowed to count alike for pension and no contribution towards or share of, a pension earned as a result of this concession shall be claimed from the foreign Government concerned; [iv] xx xx CWP No. 2592 of 1991. ::-4 -:: [v] break between military/war service and the civil service shall be treated as automatically condoned; provided the period of the break does not exceed one year. Breaks exceeding one year but not exceeding three years may also be condoned in exceptional cases, under special orders of Government. Explanation.- For the purpose of this note, it is immaterial whether or not, there was a break between the War Service and the other military service. Note 2.- The service rendered in the I.N.A. by the persons of the following categories shall also be treated as War Service for the purposes of counting towards pension in terms of this rule:- [i] those who were holding civil posts before joining the Indian National Army and have been reinstated in the same posts; [ii] those who were members of the regular Indian Armed Forces before joining the Indian National Army and were subsequently re-employed in some other civil posts. [iii] Those who joined the Indian National Army from the General Public or from the Armed Forces and have subsequently been absorbed in the civil posts”. The respondents have turned down the petitioner's claim on the ground that the break in the military and civil service of the petitioner being more than three years, can not be condoned. Apparently, the respondents have extracted the said reason from Rule 4.6A [v], as reproduced above. The only question which requires consideration is as to whether or not the service rendered by the petitioner in the pre and post independence era is liable to be counted towards pension? CWP No. 2592 of 1991. ::-5 -:: As may be seen from Rule 4.3[a], the service rendered by an employee belonging to one of the classes mentioned in the Schedule, i.e., [i] Commissioned Officer/Junior Commissioned Officer; [ii] Warrant Officer/non-Commissioned Officer and [iii] other enrolled persons of the Army etc. which is pensionable under the Military Service but which terminates before pension, can be counted towards pension in the civil employment at the discretion of the Government if it is followed by the civil service qualified for pension under the Civil Service Rules. This again depends upon various contingencies explained in the Rule itself. There is no material on record to suggest that the entire service rendered by the petitioner in the Army, referred to above, was pensionable and/or that he had complied with the pre-conditions laid down in the Rule so as to earn eligibility for getting the said service counted towards pension under the Civil Service Rules. In the absence thereof, the petitioner's claim under Rule 4.3 can not be determined. It shall, however, not preclude the petitioner to represent to the authorities concerned and make out a case by meeting out the conditions laid down in Rule 4.3 to seek the grant of the said benefit. This takes up to Rule 4.6-A which has been pressed into aid by the petitioner to seek the said pension and by the respondents to turn down his claim. Rule 4.6A explicitly provides that it is the benefit of “war service” which is admissible towards 'civil pension' subject to the conditions laid down in the Rule itself. The expression “war service” though has not been defined in the Rules, however, from the tone CWP No. 2592 of 1991. ::-6 -:: and tenor of Rule 4.6A[3] coupled with the explanation and Note.-2 appended thereto, there remains no doubt that [i] the 'war service' rendered while enrolled in the Armed Force of India; [ii] the war service rendered in Indian National Army, by those who were members of the regular Indian Armed Forces before joining the Indian National Army and were subsequently re-employed in the civil spot, would alone be taken as 'war service' for the purpose of the Rule ibid. It, thus, appears that if a member of the regular Indian Armed Forces had participated during war before his inductment the Indian National Army, followed by his re-employment in the civil service, he can claim the benefit of such 'war service' towards the pensionary benefits in the civil employment. Having heard learned counsel for the parties at some length and on perusal of the record, it appears that the petitioner's claim has not been considered by the respondents as per the import of the rule, referred to above and they have simply proceeded on the premise that since there is a break of more than three years between the 'military' and 'civil service', the same can not be condoned in terms of Rule 4.6A. The objection, however, appears to be legally misconceived. The question of condonation of break would arise only if the petitioner's claim pertains to the break between the 'military service' and 'civil service'. No such claim has been made by the petitioner, who simply wants his 'war service' to be counted towards civil pensionary benefits, therefore, sub-rule [v] of Rule 4.6A is not attracted at all. Contrary to it, the petitioner's claim deserves to be re- CWP No. 2592 of 1991. ::-7 -:: considered in order to determine his eligibility, in terms of Note.-2 of Rule 4.6A. Consequently, this writ petition is allowed; the impugned order dated 17.7.1990 [Annexure P-7] is set aside and the respondents are directed to reconsider the the petitioner's claim in the light of the observations made here-in-above. The needful shall be done within a period of three months from the date a certified copy of this order is received. No costs. December 09, 2008. ( SURYA KANT ) dinesh JUDGE CWP No. 2592 of 1991. ::-8 -:: Note 1.- In the case of a civil employee who has rendered satisfactory paid military service in the war in addition to military service pensionable under the military rules before or after such service but who did not earn a pension by his war service in conjunction with his other military service, that portion of the military service which was rendered before or after the War Service should be dealt with in accordance with the provision of rule 4.3 and the amount of gratuity which the Government employee will refund in respect of the later portion should bear the same proportion to the total amount of gratuity received in lieu of pension as the period dealt with under rule 4.3 bears to the total period of military service including the period of War Service.