CWP No. 14170 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 14170 of 1994 Date of Decision: 15.7.2011. Inspector Nachhatar Singh .......Petitioner Vs. State of Punjab and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. I.D.Singla, Advocate for the petitioner. Mr. Ranbir Singh Rawat, Asst. A.G., Punjab for respondents. ..... SABINA, J. The petitioner has filed this petition under Article 226 of the Constitution of India seeking a writ in the nature of Certiorari for quashing the impugned order dated 16.11.1994 (Annexure P-5) and further for issuance of a writ of Mandamus directing the respondents to grant him the benefits of military service rendered by him during emergency. The case of the petitioner, in brief, as stated in the petition is that he had joined the military service as an Operator w.e.f. 25.7.1963 and was discharged from service w.e.f. 26.3.1969. Thus, the petitioner had rendered 4 years, 5 months and 15 days of service during proclamation of emergency w.e.f. 25.7.1963 to 10.1.1968. The petitioner joined the respondent department w.e.f. 26.11.1971 and was promoted upto the post of CWP No. 14170 of 1994 -2- Inspector. The petitioner had been granted the increments qua the period of military service but the military service, rendered by the petitioner, had not been counted towards the seniority and pension in terms of Rule 4 of the Punjab Government Emergency (Concession) Rules, 1965 (hereinafter mentioned as Rules). Similar reliefs, claimed by the petitioner, had been granted by the respondents to Sawran Singh and Karam Singh with the intervention of this court. After filing of the writ petition, the respondents had rejected the claim of the petitioner on three grounds i.e. the petitioner had served in Punjab Home Guards Department as Corporal Instructor from 29.7.1969 to 31.3.1971 and had filed a false affidavit stating therein that he had joined Police Telecommunication Department and had altered the entries in Military Discharge Certificate to get undue benefits. Hence, the present petition. Respondents, in their written statement, averred that the petitioner had joined as a Constable in Police Telecommunication Wing. Earlier to that, he had served as Corporal Instructor in Punjab Home Guards Department from 29.7.1969 to 31.3.1971. Hence, the petitioner was not entitled for the reliefs claimed by him. The petitioner had also altered the entries in the Military Discharge Certificate to get undue benefit. It was further averred that the cases of Sawran Singh and Karam Singh were of different footing. Learned counsel for the petitioner has submitted that the military service, rendered by the petitioner during emergency, was liable to be counted for the purpose of increments, seniority and pension. The military service, CWP No. 14170 of 1994 -3- rendered by the petitioner, had been counted for grant of increments. So far as the relief of seniority and pension is concerned, the same could not be denied on the ground that the petitioner had earlier joined the Home Guards Department. In Rule 4 of the Rules, no such condition had been imposed that the military service was liable to be counted only on first appointment for the purposes of seniority and pension. In support of his argument, learned counsel for the petitioner has placed reliance on 'Raj Kumar Verma vs. State of Haryana and others 1979 All India Services Law Journal 372', wherein it was held as under:- “To conclude, the answer to the question posted at the very outset must be returned in the negative I hold that the benefit of military Service under rule 4 (ii) is available to Ex-Servicemen on his second or subsequent appointment in an altogether different public service.” Learned state counsel, on the other hand, has submitted that since the petitioner had joined the Punjab Home Guards Department before joining the respondent department, the military service, rendered by the petitioner, could not be taken in account while fixing his seniority and for grant of pension. Rule 2 of the Rules defines the 'military service' and the same reads as under:- “2. Definition:- For the purposes of these rules, the expressions 'military service' means enrolled or commissioned service in any of the three wings of the CWP No. 14170 of 1994 -4- Indian Armed Forces (including service as a warrant officer) 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 purposes of these rules. Any period of military training followed by military service shall also be reckoned as military service.” Rule 4 of the rules reads as under:- “4. Increments, seniority and pensions:- 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 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 CWP No. 14170 of 1994 -5- 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 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.” The representation moved by the petitioner for grant of seniority and pensionary benefits on account of military CWP No. 14170 of 1994 -6- service was rejected vide the impugned order dated 16.11.1994 (Annexure P-5) and the same reads as under:- “The Representation submitted by Inspector Nachhater Singh 368/W vide No. 11199-200/I/C Rooms dated 13.7.1994 for the grant of seniority and pensionary benefits on account of military service rendered during the period from 25.7.63 to 26.3.69 has carefully been considered and his claim for the same is not valid because under the Punjab Govt. National Emergency (concessions) Rule, 1965 these benefits are to be given on first appointment in civil service after discharge from the army. Before joining in this department he was employed in the Punjab Home Guards from 29.7.69 to 31.3.71 as CPL Instructor but he concealed this fact and filed a false affidavit to get the undue benefits under the Punjab National Emergency (Concessions) Rule, 1965 and more over the entries in the discharge book have been tempered as per the report given by Director F.S.L. Punjab vide his memo No. 1360/DOL/FSL/Pb. Dated 26.10.1994. The representation is thus rejected being devoid of any merit. A copy of the order is given to the representationist free of cost” On 23.8.1995, following order was passed by this court:- “The original certificate of discharge issued to the petitioner by the Army authorities has been shown to us in the Court. At Page 6 Sr. No. 4, it has CWP No. 14170 of 1994 -7- been inter alia mentioned that the petitioner was discharged “in consequence-before fulfilling the conditions of his enrollment on extreme compassionate grounds”. His character was assessed as 'Very Good'. We have also been shown the certificate fowraded vide letter dated January 13, 1995 by the Signals' Records, Post Bag No. 5, Jabalpur, in which it has been indicated that the petitioner had been discharged under Army Rule 13 “before fulfilling the conditions of his own request on extreme compassionate grounds”. Mr. Dhillon states that the certificate now issued by the Army authorities shows that the original discharge certificate has been altered by the petitioner. We have examined the certificate. We are unable to accept the submission. Mr. Singla, counsel for the petitioner states that the respondents should be directed to return the original discharge certificate produced by the petitioner. The petitioner may apply to the authorities for the return of the certificate. On receipt of the application, the certificate shall be returned to the petitioner. Heard. Admitted.” Thus, the plea taken by the respondents that the petitioner had altered the entries in the Military Discharge Certificate, was rejected after examining the original certificate of CWP No. 14170 of 1994 -8- discharge issued to the petitioner by the army authorities vide above order. The other ground taken by the respondents, while declining the relief claimed by the petitioner, is that the petitioner had joined the Home Guards Department before joining the Police Telecommunication Wing. In view of the decision of this court in Raj Kumar Verma's case (supra), the said plea of the respondents is also liable to be rejected. Admittedly, the petitioner had joined the military service on 25.7.1963 and was discharged on 26.3.1969. Undisputedly, the emergency was declared from 26.10.1962 to 9.1.1968. Since the petitioner had joined the military service during the emergency, he was entitled to get his military service counted for pension on serving as a civil servant. As per Rule 4 Clause III, where there is a gap of less than three years between the date of discharge from the military service and the date of joining to the service/post under the Government, then the period of military service is liable to be taken in consideration for the purpose of grant of pensionary benefits. Moreover, as per condition No. 1 of Rule 4 Clause III, the concerned person should not have earned pension under the military rules in respect of military service in question. Admittedly, the petitioner had been discharged from the military service before fulfilling the conditions for grant of pension. Thus, the military service, rendered by the petitioner, was liable to be counted towards his seniority and pensionary benefits. The reasons given, while declining the representation CWP No. 14170 of 1994 -9- of the petitioner, are against the settled law and hence, the impugned order is liable to be set aside. Accordingly, this writ petition is allowed. The impugned order dated 16.11.1994 (Annexure P-5) is quashed. The respondents are directed to fix the seniority and pension of the petitioner by affording him benefit of his military service. (SABINA) JUDGE July 15, 2011 Gurpreet