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2016 DIGILAW 2748 (PNJ)

Jage Ram v. State of Haryana

2016-09-27

KULDIP SINGH

body2016
JUDGMENT : KULDIP SINGH, J. 1. The petitioner joined the military service on 17.11.1961 and retired from service on 1.12.1976. He had served the nation from 26.10.1962 to 10.1.1968 during which the First National Emergency was proclaimed by the President of India. Thereafter, the petitioner joined the civil service with respondent No. 2 i.e. Director General, Food and Supplies, Haryana, in the year 1977, and retired from the civil service on 31.8.2000 as Auditor. The petitioner seeks the quashing of letter dated 7.10.1991 (Annexure-P-7), vide which the Government of Haryana, had withdrawn the benefit of military service to the ex-servicemen, who joined the Army before 26.10.1962 and were appointed to State service after 4.8.1976. He has also impugned the letter dated 27.8.2014 (Annexure-P-9), vide which the claim of the petitioner was rejected. He also seeks the benefit of seniority, increment and pension for the period 26.10.1962 to 10.1.1968, during which the First National Emergency remained in operation. 2. It is claimed in the petition that the Punjab National Emergency (Concession) Rules, 1965 (in short 'the Rules of 1965') defined the military service as rendered during the proclamation of the First National Emergency made by the President of India on 26.10.1962. However, vide notification dated 22.3.1976, the retrospective amendment was made with effect from 1.11.1966, whereby it was provided that a person who has availed the concession under Sub-rule (3) of Rule 3 of the Rules of 1965 shall not be entitled to the concession under this clause. The Government again issued a notification dated 4.8.1976, wherein the military service was re-defined as 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 of India on 26.10.1962 in any of the three wings of the Indian Armed Forces (including service as Warrant Officer). The amendment by the Government, vide notification dated 4.8.1976, was challenged before the Hon'ble Supreme Court in Ex-Capt. K.C. Arora Versus State of Haryana, AIR 1987 Supreme Court 1858. The Hon'ble Supreme Court held that the amendment could not be made retrospectively. Thereafter, the Government issued the impugned clarification dated 7.10.1991 (Annexure-P-7), clarifying that the benefit of military service may not be withdrawn from those ex-servicemen, who had joined the State service prior to amendment of rules, vide Haryana Government Notification dated 4.8.1976. The Hon'ble Supreme Court held that the amendment could not be made retrospectively. Thereafter, the Government issued the impugned clarification dated 7.10.1991 (Annexure-P-7), clarifying that the benefit of military service may not be withdrawn from those ex-servicemen, who had joined the State service prior to amendment of rules, vide Haryana Government Notification dated 4.8.1976. However, the benefit of military service granted to those ex-servicemen, who joined Army before 26.10.1962 and were appointed to State service after the issuance of notification dated 4.8.1976 be withdrawn. This letter was in the nature of clarification. 3. The State in the reply, while referring to the rules and instructions and relying upon the authorities of the Hon'ble Supreme Court in Dhan Singh and others Versus State of Haryana and others, 1991 (1) SCT 137 and Inderaj Singh Versus State of Haryana, has stated that the petitioner is not entitled to the benefit of military service as he had joined the military service before the proclamation of First National Emergency and his service rendered during the First National Emergency from 26.10.1962 to 10.1.1968, is not to be counted for grant of pensionary benefits. 4. I have heard the learned counsels for the parties and have also carefully gone through the file. 5. The petitioner admittedly joined the Army on 17.11.1961 i.e. before the proclamation of the First National Emergency made by the President of India on 26.10.1962, though he served the Army during the proclamation of said emergency. The Rules of 1965 were amended by a subsequent notification dated 4.8.1976 with retrospective effect and ultimately, in K.C. Arora's case (supra), the Hon'ble Supreme Court held that the benefit given cannot be withdrawn retrospectively. However, that would mean that the said amendment will apply prospectively. As per the notification dated 4.8.1976, issued by the Government, the military service is defined as under :- “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 26th October, 1962. In any of the 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. In any of the 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.” 6. The clarification dated 19.2.1991 (Annexure-P-6), impugned in the present case, is only on the lines of said amendment of 4.8.1976, which was made before the petitioner joined the civil service. The amendment was held to be not operational from the retrospective date. However, it is prospective in nature, which means that it is applicable to the petitioner, who joined the civil service, when this amendment was in operation. In the said rule, military service is defined as the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of the First National Emergency. Since the petitioner joined the civil service in the year 1977, therefore, he is not covered under the said rule. The clarification dated 7.10.1991 (Annexure-P-7) is nothing, but reiteration of notification dated 4.8.1976. 7. The learned counsel for the petitioner has relied upon the authority of the Hon'ble Supreme Court in K.C. Arora, Ex-Capt. Versus State of Haryana (supra). The perusal of the said judgment shows that what the Hon'ble Supreme Court held is that the said amendment cannot be made retrospectively. However, it is never held that the said amendment by way of notification dated 4.8.1976 cannot operate prospectively. Therefore, reliance on K.C. Arora's (supra) is misconceived. 8. The learned counsel for the petitioner has further relied upon the authorities of the Hon'ble Supreme Court in Raj Pal Sharma and others etc. Versus State of Haryana, 1985 AIR (SC) 1263, Som Dutt Versus State of Haryana and others, 1989 (2) CurLJ 76 and the authority of Single Bench of this Court in Ramdia Versus State of Haryana and another, (arising out of CWP No. 1084 of 2011, decided on 16.7.2013). 9. The perusal of authority of the Hon'ble Supreme Court in Som Dutt's case (supra) shows that in the said case, the dispute was regarding military service rendered by the petitioner, who was relieved from military service on compassionate grounds. It is held that he is entitled to military service. 10. 9. The perusal of authority of the Hon'ble Supreme Court in Som Dutt's case (supra) shows that in the said case, the dispute was regarding military service rendered by the petitioner, who was relieved from military service on compassionate grounds. It is held that he is entitled to military service. 10. In Ramdia's case (supra), the petitioner entered the military service during the emergency. Therefore, he was granted the benefits of Rules of 1965. In Raj Pal Sharma's case (supra), again it was a case of release of the ex-serviceman on compassionate ground. 11. In view of the discussion above, I am of the view that the petitioner had joined the armed forces before the proclamation of the First National Emergency. Therefore, he is not entitled to the benefit of Rules of 1965, as amended vide notification dated 4.8.1976. The subsequent clarification dated 7.10.1991 (Annexure-P-7) is nothing, but reiteration of said rules. During his civil service from 1977 till 31.8.2000, the petitioner never challenged these rules. He retired from service in the year 2000 and it was only in the year 2015, he has filed the present writ petition. 12. In view of the matter, what has been discussed above, the present writ petition is found to be without any merit and is dismissed.