Civil Revision No. 1693 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1693 of 2002 Date of Decision: 27.07.2011 *** Chairman Punjab State Electricity Board & Ors. .. Petitioners Vs. Bir Singh .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. J.S. Yadav, Advocate for the petitioners. Mr. MPS Mann, Advocate for the respondent. ARVIND KUMAR, J. The petitioners-JDs are aggrieved with order dated 7.3.2002 passed by the learned Executing Court by virtue of which the execution application preferred by the respondent-decree holder has been allowed. The undisputed facts leading to the institution of present civil revision, be recapitulated first. Respondent Bir Singh joined the Military on 7.5.1963 during the period when National Emergency was in operation. He served in Military upto 30.7.1977. It is relevant to mention here that National Emergency was declared on October 26,1962 and was lifted on 10.1.1968. On December 3,1971 Government declared Emergency on account of Indo-Bangla War, which was lifted on March 22,1973. Later, on June 17,1982 he joined the petitioner-Department as Driver. Raising the plea that his military service, rendered by him during the emergency and prior to his appointment, be counted towards increment, seniority and pension etc., as per Rules and Regulations provided under Punjab Government National Emergency Concession Rules, 1965, he filed the civil suit. The said suit was decreed on 30.6.1996, in the following terms:- “As a result of discussion and findings on issues, supra, Civil Revision No. 1693 of 2002 2 suit of the plaintiff succeeds against defendants No.1 to 3 and the same is, hereby, decreed against them with costs and defendants Nos. 1 to 3 are directed to release the military service benefits to the plaintiff for purpose of increments, seniority and pension etc., subsequent to his joining as driver from June 17,1982 with them (defendants Nos.1 to 3).” Thereafter, the petitioners preferred first appeal before the Court below and vide judgment and decree dated 13.8.1998 the same was dismissed, however, with clarification, as under:- “It is ordered that the appeal fails. The same is hereby dismissed, leaving the parties to bear, their own costs. It is however made clear that as per the circular letter No. P.6 dated 21.4.1987 the plaintiff would be eligible to get benefit of that military service as rendered by him during the National Emergencies only.” It is a matter of record the second appeal preferred by the petitioners was dismissed by this Court as also the special leave and the review petition by the Hon'ble Apex Court. Claiming that an sum of Rs.1,09,746.60 ps is still recoverable from the JDs, the decree holder filed an execution petition. The JDs pleaded that in pursuance to the aforesaid decree, they had given the payment of Rs.18,138/- and Rs.11,702/- to the decree-holder. However, the plea raised by the decree holder is that he has been given the benefit of one military service rendered during first emergency while as per decree he is entitled to benefits of service rendered during both the emergencies. His plea has been accepted and, as said above, the execution petition preferred by him, has been allowed. Learned counsel for the petitioners has argued that the decree holder is entitled to get the benefit of only one National emergency and his claim that he is liable to get the benefit of his service during both the National emergencies is not sustainable. According to the learned counsel Civil Revision No. 1693 of 2002 3 the Executing Court below has erred in arriving to the conclusion that he is entitled to the military service rendered by the decree holder during both the emergencies. While according to learned counsel for the respondent, the Executing Court cannot go behind the decree and has rightly passed the impugned order, as per spirit of the decree under execution. The arguments have been scanned. It is apparent from the perusal of the decree passed by the learned trial Court dated 30.6.1996, as reproduced above, that there is no specific mention therein that the plaintiff is entitled to the military service rendered during both the emergencies towards his seniority, increments and pension etc. Only a direction had been given to defendants No.1 to 3 to release the military service benefits to the plaintiff which he rendered subsequent to his joining as Driver from June 17,1982. The fact stands clarified by the first appellate Court below wherein it is specifically mentioned that the plaintiff is entitled to get the benefit of military service as rendered by him during the National emergencies, in accordance with letter dated 21.4.1987. The relevant extract of decree dated 13.8.1998 passed by the appellate Court has also been reproduced above. Letter dated 21.4.1987, the reference of which has been made in the judgment of appellate Court, is on the file as Annexure P-2 and a reading thereof makes it clear that in terms of orders passed in Review Petition No.107, 107-A and 107-B of 1986 (titled Ex. Capt. A.S. Parmar & Ors. Vs. State of Haryana & Ors. AIR 1986 SC 1183), the Hon'ble Apex Court clarified that the benefit of military service rendered during period of emergency only could be taken into consideration and not the entire military service. It has further been made clear that military service rendered subsequent to the lifting of emergency could not be taken into account for reckoning seniority in civil post. This letter was circulated on behalf of the Secretary of petitioner-Electricity Board. Thus, there remains no doubt that the decree holder was held entitled to the benefit of military service rendered during emergency period only and not the whole military service. Now the next question arises for determination is as to whether the decree holder is entitled to the military service rendered during both the emergencies or not? However, the said issue is no more res integra. Similar was the situation in the case of Punjab State Electricity Board, Patiala Vs. Surjit Singh Brar AIR 1997 SC 2271, wherein the respondent therein Civil Revision No. 1693 of 2002 4 joined the military service during first emergency and continued during second emergency and later joined the civil post. In that case it was held that the service rendered during first emergency can only be considered for granting benefit. Similar view has been reiterated by this Court in the case of Jacob, Labour Inspector Vs. State of Punjab 1999(1) SCT 111. In view of the legal position above, once the law itself does not permit for grant of benefit of military service rendered during 2nd emergency, it cannot be said that it was spirit of the decree to grant the same to the plaintiff. It is settled that the Executing Court cannot go behind the decree, but it is made clear that this situation has arisen only on account of the fact that there was no specific mention in the decrees about the manner in which the plaintiff is entitled to get benefit of military service rendered during first emergency or for both the emergencies. In this view of the matter, the impugned order passed by the learned Executing Court is not sustainable and is accordingly set aside. The matter is remitted to the Executing Court below to pass orders afresh in the execution petition filed by the decree-holder, in the light of observations and discussions made above. Disposed of. (ARVIND KUMAR) JUDGE July 27, 2011 Jiten