CWP No.5174 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5174 of 1994 DATE OF DECISION: NOVEMBER 09, 2010 Nazar Singh .....PETITIONER Versus State of Haryana and others ....RESPONDENTS CCORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.J.S. Virk, Advocate, for the petitioner. Mr. G.S. Chahal, Addl. A.G., Haryana. .. SATISH KUMAR MITTAL, J. (Oral) The petitioner joined the military service on 24.3.1960. He was discharged from military service on 10.1.1968. Thereafter, on 19.1.1976 he was appointed on ad hoc basis as driver in the Haryana Government in the office of Civil Surgeon, Karnal. His services were regularized on the said post w.e.f. 1.1.1980. Thereafter, he had retired from service on 31.3.1999. During his service, vide Notification dated 20.12.1989, the petitioner was given the benefit of military service from 26.10.1962 to 10.1.1968 under the provisions of Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter referred to as `the 1965 Rules'), as applicable to Haryana. Later on, the Chief Secretary, Government of Haryana vide letter dated 7.10.1991 clarified that the benefit of military service was not to be given to those employees who had joined the military service prior to the declaration CWP No.5174 of 1994 -2- of emergency and further who had taken the regular appointment in the State Government after the amendment of the 1965 Rules. The Government of Haryana vide Notifications dated 22.3.1976, 9.8.1976 and 5.11.1976 introduced some amendments in the 1965 Rules. The definition of `military service' as defined in Rule 2 was amended and a proviso was added. According to the amendment, only those employees who had been enrolled or commissioned in the Indian Army during the emergency were declared eligible for the benefit of military service under Rule 4. According to the proviso, those amendments were made with retrospective effect. In view of the said clarification, vide order dated 30.3.1994, the benefit of military service given to the petitioner was withdrawn, as he had joined the military service on 24.3.1960, i.e., prior to the declaration of emergency and joined the service of State Government on 19.1.1976 on ad hoc basis, but was regularized w.e.f. 1.1.1980, therefore, could not have been granted the benefit of military service. The said order has been challenged by the petitioner in the instant writ petition. We have heard the learned counsel for the parties. It is admitted position that in the present case, the petitioner joined the military service on 24.3.1960, i.e., much before the declaration of emergency on 26.10.1962. It is further admitted position that after discharge from the military service, though the petitioner was given ad hoc appointment as driver in the State Government w.e.f. 19.1.1976, but his services were regularized w.e.f. 1.1.1980. It is also admitted position that the 1965 Rules were amended by the Haryana Government vide Haryana CWP No.5174 of 1994 -3- Government Notifications dated 22.3.1976, 9.8.1976 and 5.11.1976. By those amendments, the Haryana Government restricted the benefit of military service to those employees who had been enrolled or were commissioned in the armed forces during the emergency. The amended Rule came for consideration before the Hon'ble Supreme Court in Dhan Singh & Ors. v. State of Haryana & Ors., AIR 1991 SC 1047 and K.C. Arora & Ors. v. State of Haryana & Ors., AIR 1987 SC 1858, wherein it was held that the amendment made by the Haryana Government on 4.8.1976 conferred benefit to those employees who had rendered the military service during the emergency, but it has been held that if the benefit of military service was given to an employee prior to the amendment, though he had joined the military service prior to the emergency, the Government cannot take away the accrued rights of that ex-army personnel, even by making amendment to the Rules with retrospective effect. The amendment made in Rule 2 with retrospective effect was struck-down. However, the amendment made in the definition of `military service', restricting the benefit of military service for those employees who had joined during operation of emergency, was held to be valid. Since admittedly in the present case the petitioner had joined the military service on 24.3.1960, i.e., much before the commencement of the emergency and had admittedly joined the Haryana Government service as driver on 1.1.1980 on regular basis, which was much after the aforesaid amendment, therefore, in our opinion, he was not entitled for the benefit of military service. Thus, the respondents were fully justified in withdrawing the said benefit from him which was illegally given to him. In view of the aforesaid factual and legal position, we do not CWP No.5174 of 1994 -4- find any illegality in the impugned order. However, learned counsel for the respondent-State submitted that since the petitioner had already retired and has been getting the pension, whatsoever amount has already been paid and not recovered, will not be recovered from the petitioner. Resultantly, the writ petition is dismissed. (SATISH KUMAR MITTAL) JUDGE November 09, 2010 ( JORA SINGH ) vkg JUDGE