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Judgment
J.S. Narang, J.—The short question which is involved in this petition is whether the petitioner is entitled to count the intervening period of emergency having been declared on 26.10.1962 and revoked on 10.1.1968.
The petitioner had joined service in the Army on 25.10.1956 and was released therefrom on 31.7.1974. He joined as Chief Security Officer on 2.10.1974 with National Textile Corporation (a Government of India Undertaking) and thereafter joined as Secretary, Zila Sainik Board, Gurdaspur on 17.3.1980. The post of Secretary was redesignated as District Sainik Welfare Officer. He was subsequently promoted to the rank of Deputy Director, Sainik Welfare, Punjab and retired therefrom on 30.11.1996.
The petitioner had made various representations, for seeking the counting of military service rendered by him during the emergency in pursuant to Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter referred to as the ''rules'') for ancillary benefits. It shall be apposite to note Rules 2, 3 and 5 of the rules which read as under :-
"2. Definition: For the purpose of these rules, the ex-pression military service means enrolled or commissioned service in any of the three wings of the Indian Armed Forces (including services as a warrant officer) rendered by a person during the period of operation of the Proclamation of Emergency made by the President under Article 352 of the Constitution on the 26th October, 1962 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.
Maximum age limit and minimum qualification :
(1) The maximum age limit prescribed for appointment to any service or post shall be relaxed in favour of a person who has rendered military service to the extent of his military service, provided he produces a certificate from the competent authority that he had rendered continuous military service for a period of not less than six months and was discharged because of demobilisation or reduction not more than three years prior to the date of his registration at an employment exchange or the date of his application for employment under the government
(2) A person who has become disabled while in military service shall be also entitled to exclude from his age the period from the date he was disabled upto the date of his application for appointment to any service or post under the Government or till the end of the present emergency whichever is shorter.
(3) In case a person who has rendered military service does not possess the minimum qualifications prescribed for any service or post, he shall be deemed to possess these qualifications if the appointing authority certifies that such a person has acquired by experience or otherwise qualifications equivalent to those prescribed for that service or post.
(4) Increments, seniority and pension - Period of military service shall count for increments, seniority and pension as under :-
(i) Increments :- The period spent by a person on military service, after attaining the minimum age prescribed for appointment to any service or post to which he is appointed, shall count for increments. Where no such minimum age is prescribed the minimum age shall be as laid down in Rules 3.9,3.10 and 3.11 of the Punjab Civil Services Rules, Volume-II. This concession shall, however, be admissible only on first appointment.
(ii) Seniority - The period of military service mentioned in clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service.
(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 person 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 the 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 of the Government.
Seniority, promotion, increment, pension and leave of Government Employees :- The period spent on military service by a Government employee shall count for seniority, promotion, increment and pension in the service or post held by him immediately before his joining military service. A permanent Government employee who renders military service, shall earn leave during such service according to the leave rules applicable to him immediately before his joining military service. A temporary Government employee shall during military service, be governed by the military rules in all respects. The employee concerned shall be entitled to proforma promotion in his parent department under ''the next below rule and also to seniority in higher posts to which he would be otherwise have been entitled if he had not joined military service."
The representation of the petitioner was decided and that the petitioner was given the benefit of counting the military service rendered during the emergency period for the purpose of fixation of seniority vide order dated 29.1.1996 (copy Annexure P-31). The benefit for the purpose of counting the aforesaid service for the purpose of computing the qualifying service for earning the pension stood declined. As a result thereof, the pension was calculated according to the pay fixed accordingly. The petitipner aggrieved of this order filed the present petition and has sought two fold reliefs :-
(i) Calculating the military service rendered during the emergency, i.e., with effect from 26.10.1962 to 10.1.1968 form the purpose of qualifying service in respect of computing pension.
(ii) Similar benefit has been claimed in respect of the second emergency period from 3.12.1971 to 3.7.1977.
The stand of the respondents is that the benefit cannot be given as the perusal of the rule shows that the gap in joining the service is beyond the period of three years, as such, no benefit can be given to the petitioner in computing the period for qualifying service enabling the petitioner to be eligible for pension accordingly. It has also been averred that in pursuant to the definition given in Rule 2 of the aforesaid rules, the period comprised in the second emergency has not been declared as military service for the purpose of these rules, resultantly no benefit can be given for the second emergency.
Learned counsel for the petitioner has argued that the rule is explicit that if the gap is less than one year, the said period automatically has to be counted while granting military service benefit and that if the period is more than one year but less than three years, the said period shall be counted at the discretion of the Government. However, this gap does not disentitle the petitioner for taking the benefit of military service computed during the emergency. Admittedly, the gap related to the petitioner in this regard is more than three years but the claim is not that the said period should be counted but the claim is that the military service rendered during the first emergency, i.e. 5 years 2 months 15 days should be counted while counting the period for qualifying service in r,espect of the pension to which the petitioner is entitled. In this regard, reliance has been placed upon the two judgments of Division Benches of this Court wherein similar proposition had arisen and while interpreting Rule 4(iii) of the rules, it has been held that the person who has rendered such service shall be entitled to the benefit by way of counting the said service for the purpose of fixation of pension. The first judgment has been rendered in C.W.P. No. 518 of 1998 decided on 25.3.1998 and that the second judgment has been rendered in C.W.P. No. 7254 of 1998 decided on 6.7.1999.
Learned counsel for the respondent has not been able to distinguish the aforesaid judgments and he has not been able to address meaningful arguments as to why the benefit of military service during the first emergency should not be granted to the petitioner.
Learned counsel for the petitioner has further argued that the petitioner is entitled to count the military service rendered during the second emergency and is again entitled to similar benefit which he has been found entitled to in respect of the first emergency. In this regard, reliance has been placed upon the judgment of Full Bench of this Court:- In re : Jang Singh & Ors. v. State of Punjab & Ors. 1997(4) SCT 313 : 1997(5) SLR 308 (P&H) (FB) and that reference has been made to para 19 of the judgment which reads as under :-
"19. Reverting to the facts of the present case in particular, there were two periods of national emergency proclaimed by the President of India, in the country under Article 352 of the Constitution of India, i.e., the first emergency period was from 26.10.1962 to 10.1.1968, while the other was from 3.12.1971 to3.7.1977. Petitioner No. 1 had joined the service on 20.1.1996, i.e., after declaration of the first emergency and continued to serve even till October, 1973, part of the second emergency as well. While other petitioners had joined the Army prior to proclamation of first emergency and served the military during first emergency and were discharged from the Army. They had subsequently joined the Education Department of Government of Punjab on ad-hoc basis where they were subsequently regularised. The cumulative effect of Rules 2 and 4 of the Rules and the Government instructions issued from time to time and lastly Annexure P-7 to the writ petition, demonstrably support the view that the Government Policy was to give benefit to such persons, though for a limited period. The rights of the petitioners accrued before coming into force of 1976 Haryana Rules and 1977 Rules in Punjab, and as such, accrued benefits cannot be taken away by reading the provisions of the Rules and the instructions issued by the Government in the retrograde. The different rules framed by the State of Punjab intended to give various benefits to various categories of persons who were members of the armed forces for different purposes and with distinct object. AH these rules stood repealed by common enactment of the rules framed by the State of Punjab in the year 1982. Thus, with effect from 1982 such persons would be governed by Rules of 1982, but prior thereto the '' . members of the Force would be entitled to the benefits in accordance with the rules in force at that time and the law laid down by the Courts. The Government of Punjab in exercising the powers conferred by the provisions of Article 309 read with Article 234 and 318 framed the Rules called the Punjab Recruitment of Ex. Servicemen Rules, 1982. These rules repealed all the four rules, i.e. The Punjab Government National Emergency (Concession) Rules, 1965, The Demobilized Armed Forces Personnel (Reservation of Vacancies in the Punjab Civil Services) (Executive Branch) Rules, 1972, and the Released Indian Armed Forces Personnel (Determination of Eligibility for Promotion) Rules, 1977. But while repealing, the Legislature has taken care to protect the rights which had accrued to them under the previous rules. Rule 9(3) of the Punjab Recruitment of Ex.Servicemen Rules, 1982 reads as under :
"9(3) - Nothing in these rules shall be construed as depriving any person to whom these rules apply or any right which had accrued to him under the rules, notifications, or orders in force immediately, before the commencement of these rules."
On the other hand learned counsel for the respondents has argued that the dicta of the Full Bench is not applicable as the Full Bench has not categorically answered this question as to whether the petitioner before their Lordships is entitled to the benefit of second emergency or not. It is only the judgment rendered in Narinder Nath Sharma''s case was subject matter of interpretation whereby the benefit of total military service rendered had been granted. It has been held that the law laid down in the aforesaid case is not the correct law. The Full Bench has only interpreted that the person who renders military service during the emergency shall be entitled to count the period of emergency for the other benefits but the question whether the petitioner would be entitled to the similar benefits on account of the second emergency has been left unanswered.
However, the perusal of Rule 2 shows that the military service has not been defined subsequently by way of including the service rendered in the second emergency. Thus in view of the aforesaid, the petitioner would not be entitled to the benefits of military service rendered during the second emergency. Thus the relief in respect of the period rendered during the second emergency is declined.
Petition is partially accepted and it is directed that the period of first emergency i.e, 5 years 2 months 15 days shall be counted to the benefit of the petitioner while computing the qualifying service for the purpose of pension. The benefit having so accrued to the petitioner shall be accordingly granted from the date of his retirement, i.e. 30.11.1996. The petitioner shall be entitled to arrears accordingly. It shall be appreciated if the entire exercise is carried out by the concerned quarters within a period of three months from the date of receiving the certified copy of the judgment. No order as to costs.
Petition partly allowed.