Civil Writ Petition No. 915 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 915 of 2005 (O&M) Date of decision: 9.9.2009 B.D. Chauhan ...petitioner Versus State of Haryana and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH ***** Present: Mr. Pardeep Solath, Advocate for the petitioner. Mr. Harish Rahtee, Sr. DAG, Haryana for the State. ***** RANJIT SINGH J. The petitioner, who had served in the Indian Air Force for a period of 9 years and 11 days i.e. from 19.11.1965 to 31.11.1974, after discharge there from had joined as Senior Auditor in the office of Registrar, Cooperative Societies, Haryana on 15.7.1977. The petitioner made an application to consider his services rendered in the Air Force as qualifying service for the pension, which would be due to him on account of service with the Haryana Government. The claim of the petitioner has been declined. The counsel submits that the impugned order is contrary to the provisions of pension rules, Rule 4.3(a) of Punjab Civil Service Rules Volume II (for short 'Service Rules') as applicable to Haryana and Rule 4(iii) of Punjab Government National Emergency (Concession) Rules, 1965 ( for short 'Emergency Rules'). The petitioner would also refer to order dated 11.1.1983 whereby services rendered by him during emergency period i.e. from 18.11.1965 to Civil Writ Petition No. 915 of 2005 2 10.1.1968 was ordered to be treated as emergency service, for which he has been granted benefit of seniority and increment by the Commissioner and Secretary to Government of Haryana. It was also ordered that the pensionary benefits to the petitioner shall be given, if he fulfills the conditions of Rule 4.3 (a) of service rules. The petitioner claims that he fulfills this condition and as such denial of this service for the purpose of pension is not only unjust but also is contrary to the rules. The provisions of Rule 4.3 (a) of The Punjab Civil Services Rules Vol. II reads as under: “4.3(a) Service rendered by an employee belonging to one of the cases 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 pension on or since, discharge from Military service, shall be refunded in such number of monthly instalments, 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 employee's unit or department, in India or elsewhere, which has been paid from Indian revenues or for which a pensionary contribution has been received by Indian revenues. Civil Writ Petition No. 915 of 2005 3 (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.” Similarly the provisions of rule 4(iii) of Punjab Government National Emergency (Concession) Rules, 1965 are also as under: “ Increments, seniority and pension- Period of military service shall count for increments, seniority any pension as under:- (iii) Pension:- The period military service mentioned in clause (i) shall count towards pension only in the case of appointments to permanent services or posts under the Government 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) Any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the State Government; (3) 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 three years may also be allowed to count for pension in Civil Writ Petition No. 915 of 2005 4 exceptional cases under the orders of the Government.” It is not disputed that the petitioner is not getting any pension for the service rendered by him with the Air Force. Rule 4.3 (a) thus would cover the case of the petitioner. The petitioner has also rightly sought support from the Rule 4(iii) of the emergency rules. It is clearly mentioned that the period of military service shall count towards pension only in the case of appointment to permanent services under the Government is subject to the conditions contained therein. One of the condition is that the person concerned should not have earned a pension in the military rules in respect of the military service in question. It is further provided that any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the State Government. The petitioner has pleaded and otherwise also it is clear that the petitioner did not earn any pension for the service rendered by him in the Air Force. He, however, had received gratuity, which he prepared to return as has been urged by the counsel for the petitioner. In addition, the counsel for the petitioner has drawn my attention to Annexure P-12 , where the State Government itself, under similar circumstances, has passed an order granting benefit of military service rendered by a person in the Indian Army towards pension and gratuity, subject to the condition that the amount of gratuity received by the person therein shall be deposited in the Government treasury. The order, referred to by the counsel for the petitioner reads as under:- “Under rule 4.3 (a) of the Punjab CSR Vol. II, Sh. R.D. Civil Writ Petition No. 915 of 2005 5 Sharma, Under Secretary (Retd.) Haryana Civil Secretariat is hereby given benefit of Military Service rendered by him in the Indian Army in the rank of Ex- Spr./Clk for the period from 26.7.1963 to 10.4.1970 towards pension and gratuity. 2. As per Sh. R.D. Sharma, the amount of gratuity to the tune of Rs. 1131/- received by him from the military authorities has already been deposited in the Govt. Treasury on 7.7.2003.” When the case came up for hearing before this Court on 29.7.2009, the State counsel was directed to have instructions to find if the relief claimed by the petitioner was covered by the decision as well as the rules. Though no instructions are forthcoming but it is clear that the case of the petitioner is identical and similar to the one, where the Government itself has granted this concession, to similarly situated persons. The petitioner thus has made out a case for the grant of relief claimed in the writ petition. The writ petition is accordingly allowed. The directions are hereby issued to the respondent-State to count the service rendered by the petitioner in the Air Force for the purpose of pension with the service rendered by the petitioner in the State of Haryana. The petitioner, however, would deposit the amount of gratuity received by him in the Government treasury and furnished proof in this regard to the competent authority before his service is counted for the purpose of pension. September 09, 2009 ( RANJIT SINGH ) rts JUDGE