CWP No.20061 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 25.11.2009 Sukhdev Singh .. Petitioner Versus State of Punjab and others CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.VK Shukla, Advocate, for the petitioner. Mr.PC Goyal, Addl.AG, Punjab, for the respondents. -- PERMOD KOHLI, J. (Oral): The petitioner is aggrieved of the orders dated 06.03.2008 (Annexure P-3), 04.07.2008 (Annexure P-4) and Memo dated 07.08.2008 (Annexure P-5) whereby the salary of the petitioner has been refixed by reducing five increments and a sum of Rs.69570/- has been ordered to be recovered from his DCRG. Briefly stated, the facts of the case are that the petitioner served in the Indian Army during the period from 18.12.1965 to 01.01.1981. He was discharged from the army and joined service as Barkandaz on 12.09.1983 in the office of the Executive Engineer, Canal Lining Division No.III, Moga in the State of Punjab. The petitioner retired from service of the State of Punjab on 31.12.2007 after attaining the age of superannuation. The State of Punjab CWP No.20061 of 2008 : 2 : processed the case of the petitioner for grant of pensionary/retiral benefits, but on receipt of the case of the petitioner, respondent No.5 raised an objection regarding the payment of five increments to the petitioner on account of military service vide communication dated 06.03.2008 (Annexure P-3). It was communicated to the Executive Engineer, Sidhwan Canal Division, Ludhiana, that the period spent by the petitioner in the military service is restricted to emergency period from 26.10.1962 to 09.01.1968 only and that he was entitled to only two increments instead of five. A direction was also issued to refix his salary and work out the recovery. The Executive Engineer,Sidhwan Canal Division, Ludhiana, vide his reply dated 04.07.2008 (Annexure P-4) informed respondent No.5 that the pay of the petitioner has been refixed by granting benefit of only two increments and recovery has already been ordered. On the basis of the aforesaid communication, respondent No.5 issued order dated 07.08.2008 (Annexure P-5) for recovery of Rs.69,570/- from death-cum-Retirement Gratuity. It is contended on behalf of the petitioner that he was entitled to five increments on account of military service rendered by him for two spells of the emergency i.e. between 26.10.1962 to 10.01.1968 and 03.12.1971 to 26.03.1977. Thus, the petitioner is entitled to five increments. The petitioner has placed reliance upon Rule 4 of the Punjab Government National Emergency Rules (Concession) Rules, 1965 (hereinafter referred to as “1965 Rules” ) as also letter dated 23.06.1998 (Annexure P-1) issued by Government of CWP No.20061 of 2008 : 3 : Punjab, Department of Defence Service Welfare, to all the Heads of the Departments etc. Relevant extract of the aforesaid letter is as follows:- “Keeping in view the above, the aforesaid second period of Emergency (3.12.1971 to 27.03.1977) is declared as Military Service for the purpose of above said Rules. Hence, the benefits of second Emergency may also be given to the concerned Armed Personnels.” It is relevant to notice that the aforesaid instructions were issued pursuant to the judgment of the Division Bench of this Court, reported as 1992 (7) SLR, 345. Mr.Goyal appearing for the respondents-State has defended the re-fixation of the pay of the petitioner as also consequential recovery. He has placed reliance upon the statutory rules framed by the State of Punjab vide notification dated 08.06.2004 (Annexure R-III) namely, The Punjab Recruitments of Ex-Servicemen (First Amendment) Rules, 2004. Rule 2 of the aforesaid rules is relevant for the purpose of controversy in the present writ petition which is reproduced as under:- “2. In the Punjab Recruitment of Ex- servicemen Rules, 1982, after rule 8, the following rule shall be inserted, namely :- “8-A. Increments and pension:- Period of CWP No.20061 of 2008 : 4 : military service rendered during the First National Emergency from 26th October, 1962 to 9th January, 1968 shall count for increments and pension as under:- (i) Increments:- The period spent by a person on military service (restricted to emergency period from 26th October, 1962 to 9th January, 1968) after attaining the minimum age prescribed for appointment to any service or post to which he is appointed shall count for increments. Where to such minimum age is prescribed the minimum age shall be as laid down in Rules 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume. II. This concession shall, however, be admissible only on first appointment.” From the perusal of the aforesaid rule, it appears that the benefit of increments and pension etc. is payable to Ex-servicemen for the Military Service rendered during the Emergency period from 26.10.1962 to 09.01.1968. It is accordingly argued by Mr.Goyal that the petitioner was not entitled to any other benefit particularly five increments in view of the aforesaid rules, the benefit having been restricted only to emergency period mentioned in the rules. It is pertinent to notice that these rules were framed in the CWP No.20061 of 2008 : 5 : year 2004, whereas the petitioner was employed in State of Punjab on 12.07.1983, much prior to the coming of the rules aforesaid in force. Thus, these rules have no application to the case of the petitioner. 1965 Rules came up for consideration before a Division Bench of this Court in the case of Narinder Nath Sharma Vs. State of Punjab and another, 1992 (7) SLR 345. This Court has considered the scope of the aforesaid rule, particularly, Rule 2 and 4 of the 1965 Rules, wherein it has been held as follows:- “4. The Erstwhile State of Punjab framed the Punjab Government National Emergency (Concession) Rules, 1965, which were notified on 20th July, 1965. According to rule 4 of these Rules, the period of military service shall count towards increment, seniority and pension. Rule 4 reads as under:- “4. Increments, seniority and pension:- Period of military service shall count for increments, seniority and pension, as under:- (i) Increments- The period spent by a person on military service, after attaining the minimum age prescribed for appointment to any service or post, to which he is appointed, shall count for increments. Where no such minimum age is prescribed the minimum age CWP No.20061 of 2008 : 6 : shall be as laid down in rules, 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume-II. This concession shall, however, be admissible only on first appointment. (ii) Seniority: The period of military service mentioned in clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service. (iii) Pension: The period of 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 CWP No.20061 of 2008 : 7 : 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 exceptional cases under the orders of the Government.” Rule 2 of the aforesaid 1965 Rules defines the expression “military service” as service rendered by a person during the period of operation of the proclamation of Emergency made by the President under Article 352 of the Constitution on the 26th October, 1962, or such other service as may hereafter be declared as military service for the purpose of these rules, and it shall count for the grant of benefit under these Rules. Since the 1965 Rules have not been repealed till today and are still in force in the State for the last more than quarter of a century, the only irresistible conclusion is that if Emergency had to be declared by the President of India for the second time on 3rd December, 1971 and for that matter is to be declared any time in future also, the service rendered by the Armed Forces personnel CWP No.20061 of 2008 : 8 : during the period of Emergency shall have to be reckoned as military service ipso facto, for the purpose of these rules. In fact, the definition of the expression “military service” is so broad based and comprehensive, that an enabling provision has been made for all times to come under which the State Government can always exercise its powers only by making a simple declaration. Further, even if such a declaration is not formally made, the same can be inferred from the intention and action of the State Government. It is not necessary for the grant of the benefit under these Rules that every time when necessity arises and the Emergency is proclaimed by the President under Article 352 of the Constitution, the Rules must be amended to enable the State to grant benefit to the eligible employees. In view of this interpretation, the plea made by the respondents is misconceived and untenable in law.” From the dictum of the aforesaid judgment, it appears that Rule 2 of 1965 Rules took into consideration any further operation of the proclamation of the emergency and, thus, subsequent emergency period from 1971 to 1977 also comes within the scope of the aforesaid CWP No.20061 of 2008 : 9 : rules. It appears that in implementation of the rules aforesaid, the State Government issued instructions dated 23.06.1998. Thus, the pay of the petitioner granting benefit of five increments for the Military Service rendered by him during the second spell of emergency was rightly fixed. The impugned communication Annexures P-3, P-4 and P-5 are in contravention to the rules. It appears that respondent No.5 while issuing letter Annexures P-4 and P-5, has ignored the aforesaid circumstances. As a matter of fact, the State Government has acted as a Post Office without application of any mind. In view of the totality of the facts and circumstances of the present case, present petition is allowed. The impugned order Annexures P-3, P-4 and P-5 are hereby quashed. The respondents are directed to grant the benefit of five increments in respect to the Military Service rendered by petitioner during two spells of emergencies. Recovery, if any, effected from the petitioner on account of deduction of excess payment with respect to increments, the same shall be refunded to him within a period of three months. Needless to say that the pensionary benefits including the DCRG shall also be re-fixed accordingly. No costs. 25.11.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES CWP No.20061 of 2008 : 10 :