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2006 DIGILAW 2024 (PNJ)

Gurbachan Singh v. State Of Haryana

2006-05-10

P.S.PATWALIA

body2006
Judgment P. S. PATWALIA, J. 1. Petitioner joined the Army on 11/4/1961. After 15 years of service, he was discharged on 2/7/1976. It is the petitioners own case in the writ petition that on discharge he was in receipt of pension from the army authorities. After his discharge from the military service, he was appointed as clerk on regular basis in the office of Superintending Engineer, Sutluj Yamuna link Circle vide appointment letter dated 14/2/1977. As per the petitioners discharge certificate his date of birth is 8/5/1943. Resultantly, by now he would have retired on attaining the age of superannuation on 31/5/2001. In accordance with Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter to be referred as `1965 Rules) duly adopted by the State of Haryana, the petitioner was allowed the benefit of military service rendered by him from 11/4/1961 to 2/7/1976 towards his increments. His pay was accordingly fixed. 2. This benefit of military service granted to the petitioner was withdrawn by an order dated 10/4/1985 in view of certain clarifications issued by the State of Haryana. Petitioner claims that he made a representation against this illegal withdrawal and as a result of that the benefit of military service was restored to him vide another order dated 25/7/1985. After about two years, however, the benefit of military service was again withdrawn by an order dated 12/1/1987 by the Executive engineer in view of the directions conveyed to him by the Superintending Engineer. 3. Petitioner has filed this writ petition claiming that having served in the Army, he is entitled to the benefit of military service under the 1965 Rules. He further prays that in any case the benefit which has once been conferred upon him should not be withdrawn without affording an opportunity of showing cause to thepetitioner. Respondents have filed a reply contesting the writ petition. It has been stated on the strength of documents attached as Annexures R-1 to R-IV that in the case of an Ex-serviceman who joins Government service after 4.8.1976, the benefit of military service would only be available if he was enrolled in the Army during the period of proclamation of National Emergency (from 26.10.1962 to 10.1.1968) only. It has been stated on the strength of documents attached as Annexures R-1 to R-IV that in the case of an Ex-serviceman who joins Government service after 4.8.1976, the benefit of military service would only be available if he was enrolled in the Army during the period of proclamation of National Emergency (from 26.10.1962 to 10.1.1968) only. Since the petitioner had joined the Army prior to the proclamation of National Emergency on 11.4.1961 and he joined civil employment on 14.2.1977, he is not entitled to the benefit of Military service towards increments, seniority or pension under the 1965 Rules. It is therefore contended that the benefit was granted erroneously and had been rightly withdrawn. I have heard counsel for the parties and perused the paperbook. Mr. Suresh Monga, learned Senior Deputy Advocate General, haryana appearing for the respondents explained the action of the respondent-State in withdrawing the benefit of Military service to the petitioner by stating that by a notification dated 9.8.1976, the definition of `military Service was amended. By virtue of the amended definition only such a person who was enrolled or commissioned during the proclamation of National Emergency was entitled to get benefits under 1965 Rules. Still further even for such a person the benefit was restricted only to the period of service rendered by him during the Emergency. 4. This notification had been enforced with retrospective effect from 1.11.1966. However, Mr. Monga conceded that in K. C. Arora and another V/s. State of haryana and others, reported as 1984 (3) SCT 2 the retrospective effect of this notification had been struck down by the HON BLE Supreme Court. However, prospectively this notification was upheld by the HON BLE Supreme Court in Dhan singh and Ors. V/s. State of Haryana and Ors. Reported as 1991 (1) RSJ 43. It is for this reason that in the case of persons appointed to civil employment after 9.8.1976, the benefit of the concessions under 1965 Rules would only be admissible to an employee who had been enrolled in the Army during the proclamation of National Emergency. Mr. Monga contended that since the petitioner joined the civil employment after 9.8.1976 when the definition of military service had already been amended and since he had joined the Army before the proclamation of Emergency, the petitioner was not entitled to the benefit of Military service under 1965 Rules. 5. Mr. Monga contended that since the petitioner joined the civil employment after 9.8.1976 when the definition of military service had already been amended and since he had joined the Army before the proclamation of Emergency, the petitioner was not entitled to the benefit of Military service under 1965 Rules. 5. Having given my thoughtful consideration to the issue, I agree with mr. Monga that the present case is completely covered by the judgment in Dhan singhs case (supra ). In the said judgment, it has been noticed that the State of haryana amended the definition of military service by a notification dated 9.8.1976. As per this amendment the expression `military service has been defined to mean the service rendered by a person who had been enrolled or commissioned during the period of operation of emergency. The same is as hereunder:- "by the second amendment vide Notification No. GSR 182/const/t.309/amend (1) 76 dated 22.3.1976, the definition of the expression `military service was substituted. It reads:- "2. Definition-- For the purpose of these rules the expression `military service means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made by the President under Article 352 of the Constitution of India on October 26, 1962 in any of three wings of the Indian Armed Forces (including the service as a warrant Officer) during the period of the said emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service. " the challenge raised before the HON BLE Supreme Court in Dhan singhs case (supra) that the notification to the extent that it sought to differentiate between Ex-serviceman who had joined the Army prior to the proclamation of Emergency and those who joined during the proclamation of emergency was arbitrary as it sought to create an artificial classification between similarly situated persons was repelled by the HON BLE Supreme Court with the following reasoning:-"12. The young persons who have joined the military service during the national emergency and those who were already in service and due to exigencies of service had been compelled to serve during the emergency form two distinct classes. The young persons who have joined the military service during the national emergency and those who were already in service and due to exigencies of service had been compelled to serve during the emergency form two distinct classes. The appellants and the petitioners who joined the army before the proclamation of emergency, had chosen the career voluntarily and their service during emergency was as a matter of course. They had no option or intention of joining the government service during the period of emergency as they were already serving in the army. The persons who enrolled or commissioned during the emergency, on the other hand, had on account of the call of the nation joined the army at the critical juncture of national emergency to save the mother land by taking a greater risk where danger to the life of a member of the armed forces was higher. They include persons who could have pursued their studies, acquired higher qualifications and joined a higher post and those who could have joined the government service before attaining the maximum age prescribed and thereby gained seniority in the service. Forgoing all these benefits and avenues, they joined the army keeping in view the needs of the country and assurances contained in conditions of service in executive instructions. The latter form a class by themselves and they cannot be equated to those who joined the army before the proclamation of the emergency. Benefits had been promised to such persons who heeded to the call of the nation at that critical juncture. Older man by joining the military service lost chance of joining other government service and when he joins such service on release from the army younger man had already occupied the post. To remove the hardship, the benefit of military service was sought to be given to those young persons who were enrolled/commissioned during the period of emergency forgoing their job opportunities. The differtia is, therefore, intelligible and has a direct nexus to the object sought to be achieved. The petitioners cannot, therefore, challenge the rule as discriminatory or arbitrary. Such of those appellants and the petitioners who have joined the army before the proclamation of the emergency are not, therefore, entitled to the benefit of military service as per the Emergency Concessions Rules. The petitioners cannot, therefore, challenge the rule as discriminatory or arbitrary. Such of those appellants and the petitioners who have joined the army before the proclamation of the emergency are not, therefore, entitled to the benefit of military service as per the Emergency Concessions Rules. " 6 In the present case the petitioner had joined the Army on 11.4.1961 well before the proclamation of emergency on 26.10.1962. He joined the civil employment on 14.2.1977 after the amendment had already been made in the 1965 rules. Therefore, in terms of the judgment in Dhan Singhs case (supra), the petitioner is not entitled to the benefit of military service towards his civil employment. 7. Mr. DAHIYA, however, contends that even a reading of Dhan Singhs case (supra) would show that the benefit was granted to appellants 4,5,7 and 8 to the service rendered during the course of emergency. This argument is misconceived. A close reading of the judgment would show that appellants 4,5,7 and 8 were those who had been enrolled during the period of emergency but were relieved on compassionate grounds. In Raj Pal Sharma and Ors V/s. State of haryana and Ors. , 1985 (Supp.) SCC 72 the HON BLE Supreme Court had observed that all those persons relieved from military service, would form one class and even in their case the benefit was extended to the period only to the service rendered by them during the period of emergency. Para 7 of the judgment in Dhan singhs case (supra) is very clear in this regard and reads as under:- "7. The appellants 4,5,7 and 8 had been enrolled or commissioned during the period of the emergency but were released on compassionate grounds. But for the proviso to Rule 4 (ii) introduced by the amendment vide Notification No. GSR 238. Const/art.309/amend (3)/76 dated 5.11.1976, they would be entitled to the benefits provided under Rule 4. In Raj Pal Sharma and Ors. V/s. State of Haryana and Ors.1985 (Supp) SCC 72 at page 75, this Court observed as under:- "all those persons released from military service constitute one class and it is not possible to single out certain persons of the same class for differential treatment. In Raj Pal Sharma and Ors. V/s. State of Haryana and Ors.1985 (Supp) SCC 72 at page 75, this Court observed as under:- "all those persons released from military service constitute one class and it is not possible to single out certain persons of the same class for differential treatment. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived of the equal opportunity. The amendment, therefore, is violative of Articles 14 and 16 of the Constitution and, therefore, bad. " 8 It is therefore that appellants 4,5,7 and 8 before the HON BLE Supreme Court were granted the benefit of Military service. So far as the other appellants were concerned the Court was of the opinion that they could only succeed if the definition of `military service is to be declared to be ultra vires the Constitution. This was clear from para 8 of the judgment which reads as under:- "8. In view of the legal position thus stated, these appellants 4,5,7 and 8 are entitled to benefit under the Rule. The remaining appellants have joined the Army before 26.10.1962 but had served during the period of emergency and were released or discharged only after the emergency was lifted. They had also joined the State service after the first and second amendments were introduced. The appellants other than 4,5,7 and 8 the writ petitioners who have come before this Court under Article 32 of the Constitution can succeed in their challenge only if it is made out that Rule 2 as amended is discriminatory and that these appellants and similarly situated persons are denied equal protection under law and equal opportunity. " 9. After noticing the portion extracted above, the Court vide reasoning given in para 12 already reproduced hereinabove, came to the conclusion that the classification made by the notification dated 9.8.1976 was not unreasonable. Therefore the remaining appellants who had joined prior to the proclamation of Emergency and joined civil employment after the notification was issued were not granted any relief by the HON BLE Supreme Court. Therefore, this argument is rejected. Therefore the remaining appellants who had joined prior to the proclamation of Emergency and joined civil employment after the notification was issued were not granted any relief by the HON BLE Supreme Court. Therefore, this argument is rejected. While it is no doubt true that order granting the benefit of military service to the petitioner in his civil employment was withdrawn by not affording an opportunity of hearing but as I have already held hereinabove that the petitioner is not entitled to the benefit of military service, no fruitful purpose would be served in remanding this case back at this stage. 10. In view of what has been stated hereinabove, I find no merit in this petition and the same is consequently dismissed. In the circumstances of this case, there shall, however, be no order as to costs.