CWP No. 8007 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8007 of 2008 Date of Decision: April 28, 2009 Sher Singh ...... Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr. Raman B.Garg , Advocate for the petitioner. Mr.Harish Rathee, Senior DAG, Haryana for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. By way of this petition the petitioner has claimed that the military service he rendered during the first National emergency be counted towards pension. It is stated that earlier the petitioner had filed CWP No. 17049 of 2006 for the purpose of claiming this benefit as well as the benefit of seniority and increments. That writ petition was disposed of on 28.10.2006 with a direction to the respondents to take cognizance of the representation of the petitioner and decide the same by passing a speaking order. By orders dated 8.2.2007/10.4.2007 the benefit of military service for increments and seniority was granted to the petitioner but not that of counting his service towards pension. In the written statement the plea CWP No. 8007 of 2008 2 taken is that there was a gap of more than 7 years between his discharge from the Armed Forces and his employment and thus under Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965 he could not get the benefit. Another plea which has been taken is that the petitioner having joined service in 1997 and having retired in 1995, even the earlier petition was barred by delay and latches. A Division Bench of this Court in Dev Dutt ASI v. State of Punjab and others reported as 1996(3) RSJ 852 held as follows:- “3. The request made by the petitioner was not acceded to by the respondents on the ground that there was a gap of more than three years between the date of his discharge from the military service and his joining the Police Telecommunication, Punjab. For this reliance was placed on Sub-Rule 3 Rule 4 of the 1965 Rules, which reads as under:- “(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 o the Government.” 4. Clearly, the respondents, have misread and misinterpreted the aforesaid rule. This rule only provides that the period between the date of discharge from the military service and the date of appointment to CWP No. 8007 of 2008 3 any service or post would count for pension provided the same does not exceed one year,then it may be allowed to be counted for the purposes of pension in exceptional circumstances under the orders of the Government but the same shall not exceed more than three years. Petitioner, in the present case, is not claiming pension for the period between his discharge from military service till his appointment in the Police telecommunication, Punjab. Petitioner is only claiming the relief for the period which he had spent in military during the period when emergency remained in force in the country. Under this Rule, the period for which the petitioner had served in military during the emergency cannot be excluded. Respondents have misinterpreted the rule and illegally withheld the benefits of the period spent by the petitioner in the military service during the emergency for the purposes of grant of increments, seniority and pension.” The aforesaid decision was later followed in CWP No. 13004 of 2007 decided on 5.5.2008.. Learned counsel for the petitioner has specifically stated that the petitioner is not getting any pension from the Army. However, it is made clear that if the petitioner has received any gratuity from the Army Authorities he shall deposit the same with the respondents within one month from the date of receipt of a certified copy of this letter. Thereafter within a period of two months the respondents are directed to count military service CWP No. 8007 of 2008 4 rendered by the petitioner during National emergency towards qualifying service for pension and thereafter refix his pension. However, in view of the arguments regarding delay it is clarified that the arrears should be restricted to a period of 38 months prior to the date when the petitioner made his first representation i.e. 23.6.2006. The arrears be released within one month of the refixation with 8% interest. This writ petition is disposed of in the above terms. (AJAY TEWARI) JUDGE April 28, 2009 sunita