Kuldip Singh vs State of Haryana and others

Augustine George Masih, J.—Petitioner has approached this Court for quashing of letter dated 14.11.2007 (Anneuxre P-7), vide which the claim made by the petitioner for counting the service rendered by him during emergency period towards the grant of pension has been rejected.

It is the contention of the counsel for the petitioner that vide order dated 17.09.1980, petitioner has been granted the benefit of the military service rendered by him w.e.f. 07.02.1968 to 09.08.1976 towards increment and pension etc. He contends that the petitioner, in the light of the said order, is entitled for counting of the military service benefits towards pension which has been denied to him vide impugned order dated 14.11.2007 (Annexure P-7). He contends that the said order cannot sustain.

On the other hand, counsel for the respondents submits that the petitioner is not entitled to the benefit which has been claimed by the petitioner under the Punjab Government National Emergency (Concessions) Rules, 1965 (hereinafter referred to as ''Emergency (Concessions) Rules''). He further places reliance upon a judgment of the Supreme Court in the case of Dhan Singh and others vs. State of Haryana and others, 1991 (1) RSJ 433. His contention is that the petitioner cannot be granted the said benefit in the light of the amendment in the Emergency (Concessions) Rules, according to which the benefit has to be restricted to those persons who had joined the military service during the period of emergency i.e. 26.10.1962 to 10.01.1968. He, on this basis, contends that the impugned order is in accordance with law and, therefore, does not call for any interference by this Court.

I have heard the counsel for the parties and have gone through the records of the case.

A perusal of order dated 17.09.1980 does indicate that the military service was to be counted towards pension as well but the said benefit in the light of the amendment in the rules, could not have been granted to the petitioner in the light of the judgment of the Supreme Court, wherein it has been held as follows:

The benefit of military service would be admissible to those ex-servicemen who joined the military service during the period of emergency i.e. 26.10.62 to 10.01.68. The credit of military service would be limited to the period of service rendered during emergency period only.

In this view of the matter, the claim of the petitioner cannot sustain.

At this stage, counsel for the petitioner contends that the petitioner alone has been discriminated against and has been denied the said benefit while others have been granted the benefit and continue to avail of the benefit of military service who are similarly placed as the petitioner. He has been discriminated against violating Article 14 of the Constitution of India.

This contention of the counsel for the petitioner cannot be accepted. If some benefit has been granted to any other person, which is not in accordance with law, the same cannot be made the basis for pleading discrimination and violation of Article 14 of the Constitution. Discrimination can be claimed for a positive purpose and cannot be pleaded and exercised as negative and that too, in violation of the Statute. A claim, which has been granted illegally, does not confer a right on another to claim it as a matter of right because the same cannot be supported in law.

Counsel for the petitioner, at this stage, submits that although the impugned order does not suggest that the respondents, in the light of the judgment of the Supreme Court, are proceeding to recover the benefit which has already been released to the petitioner in the light of the order dated 17.09.1980, however, he submits that since the petitioner had been granted the benefit by the respondents on their own and there has been no mis-statement or connivance of the petitioner, the petitioner is protected by the judgment of the Full Bench of this Court in the case of Budh Ram vs. State of Haryana, 2009 (3) PLR 511, wherein this Court, in such circumstances, has held that recovery cannot be effected from the employee.

This contention of the counsel for the petitioner does carry weight and, therefore, in case such recovery is to be effected from the petitioner, the respondents shall take judgment of this Court in the case of Budh Ram (supra) also into consideration.

Finding no merit in the present petition, the same stands dismissed.