CWP No.17816 of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 17816 of 2002 Date of Decision: 1 - 9 – 2010 Gurdev Singh ....Petitioner v. State of Punjab and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** 1. Whether Reporters of Local Newspapers 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? *** Present: Mr.H.S.Gill, Sr. Advocate with Mr.Vivek Goel, Advocate for the petitioner. Ms.Ambika Luthra, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) In the present writ petition, it is prayed that ad hoc service rendered by the petitioner from 5.7.1961 to 23.3.1963 as a JBT teacher before joining the Army at the time of Chinese Aggression (National Emergency) be treated as a qualifying service for pension and accordingly after granting the pension arrears be paid to him. CWP No.17816 of 2002 [2] Briefly stated, the petitioner was appointed as a JBT teacher on 5.7.1961 in a School established by the State of Punjab. The services of the petitioner were regularised on 1.12.1961 when he was duly selected by the Punjab Subordinate Services Selection Board, Punjab. In 1962, the Nation had to suffer a war due to Chinese Aggression. National Emergency was declared and the petitioner on a clarion call of the Nation, joined as a Sepoy in the Army on 23.3.1963. He served the Army till 31.3.1991 when he retired from the Army as a Subedar having attained the age of 50 years. Before his retirement from the Army, the petitioner on 1.12.1990 submitted an application for appointment as a JBT teacher. On 27.8.1991, he was selected as a teacher and the District Education Officer (Primary), Moga appointed him as a JBT teacher vide order dated 24.10.1991. He joined Government Primary School Gurusar Block Gidderbaha, District Muktsar on 6.12.1991. The petitioner attained the age of superannuation on 30.4.2000 and retired from the Education Department. The petitioner after his retirement from the Army had rendered 9 years and 5 months service in the Education Department. Qualifying service for grant of pension is 10 years. Since the petitioner was having 7 months less service, therefore, a representation was made to the respondents that the service rendered by him from 5.7.1961 till 22.3.1963 be calculated and considered towards grant of pension. Counsel for the petitioner submits that even if the service rendered by the petitioner in the Army is excluded, the petitioner served the Education Department from 5.7.1961 till 23.3.1963 and joined the Army on 23.3.1963, therefore, if that period of 1 year and 4 months is taken into consideration, the petitioner will be entitled to pension. CWP No.17816 of 2002 [3] Ms.Ambika Luthra, counsel for the respondents has stated that after the petitioner has retired from the Army, there was a fresh appointment and, therefore, service rendered by the petitioner before joining the Army is to be forfeited. It is a known fact that at the time of Chinese Aggression, State appealed to all eligibles to defend the Nation by joining Army. The petitioner was one who left a small village where he was teaching as a teacher and went to the borders to serve the motherland. Government had issued various instructions to take care of those who devoted their lives for the cause. Counsel for the petitioner has relied upon a notification dated 20.7.1965 published in the Gazette dated 30.7.1965. This notification was issued by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and was called as Punjab Government National Emergency (Concession) Rules, 1965. Clause 8 of the Notification reads as under:- “8. Temporary Government employee.- A temporary Government employee, who after return from military service, is appointed to the service or post from which he proceeded on military service or is appointed to a service or post with equivalent or similar grades, shall be treated in the same manner as a permanent Government employee in respect of pay, seniority and pension, irrespective of whether or not the post on which he was working at the time of his joining military service continued to exist during the period of his military service. A temporary Government employee who does not return to the same post or to post with an equivalent or similar grade shall be treated as if he did not hold any post under the Government prior to his joining military service.” Petitioner is a temporary government employee, who did return CWP No.17816 of 2002 [4] to the Department after his retirement from the Army. Therefore, it can be safely inferred that Clause 8 of the Notification can be invoked in favour of the petitioner. Counsel for the petitioner has further placed reliance upon a Division Bench judgment of this Court rendered in Hardip Singh and another v. State of Punjab, 2003(4) RSJ 338 and stated that where there has been unilateral break in service, that period is also to be counted for calculation of pension. Counsel for the petitioner has stated that following observations are required to be considered by the Punjab Government for calculation of pension:- “6. The question whether ad hoc service prior to appointment on regular basis is liable to be counted was raised before a Division Bench of this Court in the case titled Hazura Singh vs. State of Punjab and others, (Civil Writ Petition No.19732 of 2001) decided on January 14, 2003. It has been held therein that the period of ad hoc and temporary service prior to regularisation of the service is liable to be counted for the purpose of gratuity and pension if the break in service is for a reason beyond the control of the employee. 7. Rule 4.23 of the Rules as amended reads as under:- “In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered under the State Government shall be treated as automatically condoned, and the pre- interruption service shall be treated as qualifying service for pension purposes, except where the interruption has been caused by resignation, dismissal or removal from service or due to participation in a strike, but the period of interruption itself shall, under no circumstances, be reckoned as qualifying service for pension purposes.” A perusal of the aforesaid rule shows that an CWP No.17816 of 2002 [5] interruption between two spells of service rendered under the State Government is to be treated as automatically condoned except where the interruption has been caused by resignation, dismissal or removal from service or due to participation in a strike. The interruption in the case of the petitioners is neither on account of resignation, dismissal or removal from service or due to participation in a strike.” Therefore, this court taking into consideration Clause 8 of the Notification and ratio of law laid down in Hardip Singh's case (supra), accepts the present writ petition. The respondents are directed to count the period from 5.7.1961 to 22.3.1963 towards qualifying service for grant of pension and other terminal benefits to the petitioner. His pension be fixed accordingly and arrears be paid within a period of four months from the date of receipt of a certified copy of this order. However, there will be no order as to costs. ( KANWALJIT SINGH AHLUWALIA ) September 1, 2010. JUDGE RC