Regular Second Appeal No.744 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 29, 2010 Karnail Singh ...Appellant VERSUS The State of Punjab & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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? Present: Mr.Paramjit Singh Goraya, Advocate, for the appellant. Mr.N.D.S.Mann, Addl.A.G.Punjab, for the State. ***** RANJIT SINGH, J. Karnail Singh, retired as Inspector from Food and Supplies Department, has filed a suit seeking declaration to the effect that the order bearing No.Pen-II/K-17/03-07/6891-92 dated 7.10.2003 denying him the benefit of Military service towards fixation of his retiral benefits is illegal, unlawful, unconstitutional and ultra- vires. The facts, in brief, are that the appellant was appointed as Civil Servant in Punjab Food and Supplies Department on Regular Second Appeal No.744 of 2009 (O&M) : 2 : permanent basis on a post where he discharged his duties honestly and diligently. Before joining this post, the appellant had served in the Indian Army till 20.12.1970. He was denied the benefit of Military service for which he filed a civil suit. The suit, though was dismissed but he filed an appeal which was accepted and the suit was decreed in his favour. The benefit of the Military service was granted and the same service was counted. However, at the time of retirement, Accountant General, Punjab raised an objection that the benefit of Military service cannot be given to him as there was gap of more than three years from the discharge of Military service till the joining of a civil service by the appellant. The appellant was accordingly forced to file another suit primarily pleading that once his earlier prayer was allowed/granted, the view now being taken will be contrary to the judgment. Thus, suit filed by the appellant was decreed and it was held that he is entitled to Military service benefit regarding his pension as well. The order passed by the respondents in denying this benefit was held illegal, non-speaking, cryptic and against the principles of natural justice. A decree was accordingly granted with interest at the rate of 6% per annum. The State filed appeal against this order and the Appellate court has reversed the judgment passed by the trial court. It is viewed that since the break period is more than three years, the appellant was not entitled to computation of his pension by giving benefit of Military service. This finding of the trial court is contrary to the observations made by the civil court vide Exh.C-1, which was the earlier decree in favour of the appellant. It is in this background that the appellant has now filed this Regular Second Appeal to impugn Regular Second Appeal No.744 of 2009 (O&M) : 3 : the order passed by the Ist Appellate Court. The short and crisp issue, which will arise in this case, is whether the appellant would be entitled to count his service rendered in the Military for the purpose of computation of his pension. The submission by the State counsel is that there was a gap of more than three years between the period of the date of discharge and the joining of the civil service by the appellant and, hence, Rule 4 (iii) (3) of the Punjab Government National Emergency (Concession) Rules, 1965 (for short “ the Rules”) would stand in his way for counting the service rendered by him in the Military for the purpose of pension. This issue is no more res-integra and has been considered and decided by this court in number of cases. Recently this court by relying upon two Division Benches judgments in the case of Dev Dutt, ASI Vs. State of Punjab and others, 1996(3) RSJ 852 and Civil Writ Petition No.7254 of 1998, decided on 6.7.1999, has held that this Rule cannot be read in a manner as suggested that in the event of gap being more than three years, entire service rendered by a person in the Military service shall stand forfeited for the purpose of grant of pension. In Dev Dutt's case (supra), it has clearly been held that under this rule, the period for which the person had served the Military during emergency, cannot be excluded and it was accordingly observed that the Government had clearly misinterpreted the rule and illegally withheld the benefit of period spent by the respondent in Military service for the grant of increments, seniority and pension. Similar view was taken by another Division Bench in Civil Writ Petition No.7254 of 1998 (Gurnam Regular Second Appeal No.744 of 2009 (O&M) : 4 : Singh Vs. State of Punjab and others), decided on 6.7.1999, where it is observed as under:- “As observed above, the respondents are not correctly reading the rule to deny the benefit of military service rendered during the emergency for purpose of pension. Since the petitioner had joined civil service more than one year after his discharge from the Armed Forces, he would not be entitled to count the period between the date of his discharge and his joining the civil service for purpose of pension, but would be entitled only to count the period of service rendered during the emergency for purpose of pension. If the interpretation as put forth by the respondents is accepted, then rule 4(iii)(3) would be otiose inasmuch as the military service rendered during the emergency is countable for purpose of increments as well as the seniority on a deeming fiction as if for the period of service rendered during the emergency such an ex-serviceman had in fact been in civil service. If such period is to be counted for purpose of increments and seniority, the same cannot be denied for purpose of pension. Even this is not the spirit of Rule 4(iii)(3). Rule 4 (iii)(3) gives rather further benefit to an ex-serviceman to count that period of service between his discharge from the Armed Forces and re-joining the civil service for purpose of pension if that interregnum period is not exceeding one year.” State counsel has placed strong reliance on State of Regular Second Appeal No.744 of 2009 (O&M) : 5 : Haryana and another Vs. Shri Om Parkash, 2006(4) SLR 765 to say that the view which is taken by the Division Bench is contrary to the law laid down by the Hon'ble Supreme Court in this case. This issue had also been considered by this court while deciding Regular Second Appeal No.1833 of 2008 (State of Haryana & others Vs. S.R.Yadav), decided on 20.1.2010. By referring to the observations made in the case of Om Parkash (supra), it is observed as under:- “This rule cannot be read to mean that the entire period of military service would stand forfeited and would not be countable towards pension in case the gap between the discharge and the joining of the post under the Government is more than three years. The observations made in the case of Om Parkash (supra) have been minutely perused by me. This judgment can not be read in the manner as is being suggested by the State counsel to say that if a gap is more than 3 years then military service would not be countable for pension. The relevant part of the same reads as under:- “But if the period exceeds one year but does not exceed three years, the period may be allowed to be counted in exceptional cases. In other words, the Government must pass an order holding that the case was an exceptional one and, therefore, instead of period of one year, period upto three years could be reckoned for the purpose of computation. If the period is more than three years, there is no scope for including the same for the purpose of working out the pensionary entitlements.” Regular Second Appeal No.744 of 2009 (O&M) : 6 : The word `same' (underline above) would be significant and mean the period of gap alone. Thus, the ratio of law, which can be culled out from the case of Om Parkash (supra) is not what is being canvassed. However, it is clear that if period of gap is more than three years between the date of discharge and joining of civil service that period cannot be counted for the purpose of grant of pension. This cannot be advanced as a reason to deny the benefit of service rendered by a person in Military. If this rule is interpreted in the manner as suggested, it will lead to discriminatory consequences inasmuch as that a person, who is able to join service within three years would be entitled to count his Military service for the purpose of pension and other benefits, whereas those, who, because of no fault on their part, are not able to join the service in civil post in time would lose their entire benefit on account of Military service rendered by them. That does not appear to be the consequence of this rule. Substantial question of law in regard to interpretation of Rule 4.3 for the purpose of counting the Military service benefit for pension indeed arises in this case. The view taken by the Ist Appellate Court, thus, cannot be sustained and the same is set-aside. The appellant is held entitled to count the period of his Military service for the purpose of grant of pension. It is made clear that the appellant would not be entitled to count the period ofd gap which is more than three years for the purpose of pension. Decree sheet accordingly be prepared. January 29, 2010 ( RANJIT SINGH ) ramesh JUDGE