Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1701 (PNJ)

Kuldip Singh Uppal v. State of Punjab

2012-12-03

R.P.NAGRATH, SURYA KANT

body2012
R. P. Nagrath, J.:— The short question that arises in this petition is whether the petitioner would be entitled to count his 'military service' for the purpose of pensionary benefits. 2. The facts may be briefly stated: The petitioner joined as Emergency Commissioned Officer in the Indian Army and reported for pre-commission training on 11.2.1963. He was granted Emergency Commission on 09.02.1964. The petitioner was demobilised from the military service on 1.7.1969 under the phased programme after the national emergency was lifted. The petitioner thereafter joined PCS ( Judicial Branch) on 7.10.1977 on the basis of competitive examination held in the year 1976 against the vacancies reserved for released Army Personnels. In accordance with the Demobilized Indian Armed Forces Personnel ( Reservation of Vacancies) PCS ( Judicial Branch) Rules,1975 ( hereinafter called the 1975 Rules) and subsequent similar rules framed in the year 1978, the petitioner was granted seniority with effect from the date, the first PCS (Judicial Branch) examination was held after he joined military service as Army Commissioned Officer. 3. The petitioner has prayed in the instant writ petition that the presumptive date of appointment under 1975 and 1978 Rules may also be counted towards qualifying service for pension, apart from including the period of his practice as an advocate and the service rendered as Prosecuting Sub Inspector (PSI). It is further stated that he has not been granted the benefit of Rule 4 of Punjab Government National Emergency (Concession) Rule,1965 ( for brevity “ the 1965 Rules) to count his 'military service' towards pensionary benefits. 4. The petitioner basically relied upon an order Annexure P/16 dated 10.12.1999 passed in the case of a similarly placed another Emergency Commissioned Officer of Judicial Branch, namely, Harbhajan Singh in CWP No. 11189 of 1997. That order was,however, passed by the Lok Adalat and the respondent did not implement the order stating that no such directions could be issued by the Lok Adalat. 5. The respondent-State filed short reply/affidavit that it is for the High Court of Punjab & Haryana-respondent No. 2 to decide the claim of the petitioner. We, however, find that the State Government being the competent authority is responsible for making a decision with regard to the grant of pensionary benefits, though in consultation or seeking comments from the High Court. The High Court-respondent No. 2 also filed reply and contested the claim of petitioner. 6. We, however, find that the State Government being the competent authority is responsible for making a decision with regard to the grant of pensionary benefits, though in consultation or seeking comments from the High Court. The High Court-respondent No. 2 also filed reply and contested the claim of petitioner. 6. We have heard learned Counsel for the parties. 7. The petitioner's Counsel has confined the prayer only to the grant of benefit of the 'military service' under the Rules of 1965, and disclaiming any advantage of the private practice at the bar after the petitioner was demobilized from army service and also the service period as PSI for the period from 6.8.1962 to 31.1.1963 and rightly so as the record shows that he had resigned from the said post. That service as PSI was also rendered before the petitioner join the army service. The petitioner's counsel has also not been able to refer to any relevant rule which enables the petitioner to count this period towards pensionary benefits. 8. Sub Rule (iii) of Rule 4 of the Punjab Government National Emergency ( Concession) Rules,1965 ( in short” Rules of 1965”) is as under : “4 (i). . . . xxx xxxx xxxx (ii). . . . xxx xxxx xxxx (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 persons 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 case under the orders of the Government. ” Rule 4. 3 of Punjab Civil Services Rules, Volume-II which is relevant for counting of 'military service' towards civil pension reads as under : “4. Any period exceeding one year but not exceeding three years may also be allowed to count for pension in exceptional case under the orders of the Government. ” Rule 4. 3 of Punjab Civil Services Rules, Volume-II which is relevant for counting of 'military service' towards civil pension reads as under : “4. 3(a) Service rendered by an employee belonging to one of the classes mentioned in the schedule below after attaining the age of 18 years which is pensionable under Military Rules, but which terminates before a pension has been earned in respect of it, may, at the discretion of Government be allowed to count when followed by the service qualifying for pension under civil rules, as part of such service, provided that by bonus or gratuity received in lieu of pension on or since, discharge from military service, shall be refunded in such number of monthly instalments, not normally exceeding 36 and beginning from such date, as in each case, the Government may decide. . . . . . . . . . . . . . . (b) Service pensionable under military rules which does not terminate before a pension has been earned in respect of it shall not be allowed to count for pension under civil rules without the sanction of the competent authority. xxxx Note:1. . . . . . . . . . . . . . . . . . . . . . . xxxx xxxx xxxxxx Note: 8 The sanction regarding the counting of military service should be accorded by the competent authority at the time of appointment of the person concerned and not at the time of his retirement from civil service. Sanction accorded in such cases are required specially to mention the amount of gratuity or bonus recoverable, the number of monthly instalments in which the bonus or gratuity is to be recovered,and the date from which the recovery is to commence. If, in any case the gratuity is not to be recovered, the fact will be specially stated in the sanction. The gratuity once refunded in order to secure the benefit of counting former military service for civil pension cannot be paid back in any circumstances. ” xxx xxxx xxxx” It is not in dispute that the petitioner was not granted the military pension. 9. The gratuity once refunded in order to secure the benefit of counting former military service for civil pension cannot be paid back in any circumstances. ” xxx xxxx xxxx” It is not in dispute that the petitioner was not granted the military pension. 9. The Counsel appearing for respondent No. 2 submits with vehemence that the petitioner was relieved from the military service on 1.7.1969 and joined the PCS (Judicial Branch) on 7.10.1977 and there was a gap of about eight years, after he was demobilised from the army service. Therefore, relying upon Sub Clause 3 of Clause (iii) Rule 4 of the Rules of 1965 it is contended that the petitioner would not be entitled to count the length of his army service towards pensionary benefits. This argument in our considered view, is wholly misconceived on a plain reading of the sub clause which only enables the addition of extra years for counting length of service for pensionary benefits if the conditions laid down therein are fulfilled, but not at all effect the benefit of 'military service' towards pensionary benefits under the main Rule. It would be for the competent authority, however to give benefit of one year or three years in addition thereto under the said clause. 10. The State Counsel contended that as per Note 8 below rule 4. 3 of Punjab Civil Service Rules Volume II, the exercise for counting 'military service' is required to be conducted at the time of appointment of the person and not thereafter. The above note rather casts a duty on the competent authority to decide this matter immediately after the appointment of a person in the public service, and the objective is for the timely finalisation of pension cases of the retirees is not delayed. The department is already aware that the petitioner adopted to join as Emergency Commissioned Officer in the Army as he has moved a representation seeking senority etc. under the Rules when a decision to this effect was taken by respondent No. 2 on the report dated 16.1.1985 of Hon'ble Mr. Justice K. S. Tiwana. Any such argument,however, cannot disentitle to the benefit of the 'military service' as provided under the rules. 11. The petition, therefore is allowed with a direction to respondent No. 1 to count the period of actual 'military service' rendered by the petitioner for pensionary benefits. Justice K. S. Tiwana. Any such argument,however, cannot disentitle to the benefit of the 'military service' as provided under the rules. 11. The petition, therefore is allowed with a direction to respondent No. 1 to count the period of actual 'military service' rendered by the petitioner for pensionary benefits. For rest of the period covered by Sub Clause (3) of Clause (iii) Rule 4 of the Rules of 1965, respondent No. 1 shall decide the matter in consultation with the High Court within a period of three months from the date of receipt of certified copy of this order. Grant of benefit of 'military service' would of course be subject to the conditions laid down in the relevant rules like refund of the gratuity amount etc. The upto date arrears of the pensionary benefits be released within one month thereafter, failing which the petitioner would be paid the interest @ 9 percent per annum on the said amount till payment.