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CASE NO.:

Appeal (civil) 5065 of 2007

PETITIONER:

State of Punjab & Ors

RESPONDENT:

Harbhajan Singh & Anr

DATE OF JUDGMENT: 31/10/2007

BENCH:

Tarun Chatterjee & P. Sathasivam

JUDGMENT:

JUDGMENT

(Arising out of S.L.P. (C) No. 23555 of 2004)

P. Sathasivam, J.

1) Leave granted.

2) This appeal is filed against the final judgment and order

dated 25.03.2004 passed by the High Court of Punjab and

Haryana in C.W.P. No. 6126 of 2003 whereby the High Court

allowed the writ petition of the 1st respondent herein.

2) The brief facts in nutshell are as under:

Respondent No.1 herein, who was a matriculate, joined as

Sepoy in the Indian Army on 13.09.1961. Respondent No.1

improved his qualification and after obtaining one year

teacher\022s training at AEC Training College & Centre,

Panchmari, Madhya Pradesh, appointed as Education

Instructor (Hawaldar) on 12.10.1967. He retired on 30.9.1987

as Naib Subedar. His date of birth is 16.01.1944. He was

43= years old at the time of his retirement. On 10.5.1988,

respondent\022s name was sponsored by the Employment

Exchange for the post of JBT Teachers in the Punjab

Education Department. He appeared for the interview but the

selection Committee refused to consider his case on the

ground that he was not fulfilling the qualification for the post.

According to the respondent, the training acquired by him

during his service in the army is declared as equivalent to the

training required for the post of primary school teachers as per

Government instructions. By letter dated 9.8.1988, Director

Public Instructions informed the Director Sainik Welfare,

Punjab that according to \023directory of Education\024 of Service

Trades with Civil Trades and Guide to Registration of Defence

Services Applicants of employment\024 Army Education Corps is

equal to a Primary School Teacher in Civil Trade. On

29.8.1988, respondent submitted a representation to the

recruitment Committee for considering his case in view of the

instructions issued by the Director Public Instructions. On

1.08.1992, when the Education Department, Punjab again

invited applications for the post of JBT Teachers by issuing an

advertisement, he applied for it and was selected. On

31.3.1994, respondent got an appointment letter and he joined

at Government Primary School, Ludhiana on 22.4.1994. At

the time of joining, he was drawing his defence pension and he

was allowed to draw his defence pension. He was to retire on

31.1.2002. Before superannuation, on 10.10.2001, the

respondent submitted his pension case to the Accountant

General, Punjab through Block Primary Education Officer,

Pakhowal District, Ludhiana. The Accountant General,

Punjab rejected the case of the respondent for pension on the

ground that the service rendered by him on the civil side is

seven years, nine months and nine days which is less than 10

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years and his service rendered in defence cannot be counted

in the civil service as there is a gap of more than three years.

On 31.8.2002, the respondent served a legal notice of demand

for granting him gratuity and pension in civil side by taking

into consideration his service in the army. In February, 2003,

the respondent filed writ petition before the High Court

praying for quashing of the order dated 2.11.2001 of the

Accountant General, Punjab and for counting the service

rendered by him in the army. The High Court allowed the writ

petition in terms its decision in Dev Dutt, ASI vs. State of

Punjab & Ors., 1996 (7) SLR 807 and directed the State to re-

compute the pension of the respondent herein and to make

the payment within six months. Dissatisfied with the said

order, the State filed the present appeal before this Court.

3) We heard Mr. Ajay Pal, learned counsel for the appellants

and Ms. Shikha Roy Pabbi, learned counsel for 1st respondent.

4) Learned counsel appearing for the appellant \026 State of

Punjab vehemently contended that inasmuch as the

respondent-herein who had admittedly joined on 13.09.1961

as Sepoy in the Indian Army is not entitled to the benefits of

the Punjab Government National Emergency Rules, 1965

when emergency was declared from 26.10.1962 to 09.01.1968.

He also contended that the respondent who has rendered

services of less than 10 years as civil servant from 22.09.1994

to 31.01.2002 is not entitled to pension since the minimum

qualifying service should not be less than 10 years. He also

contended that the High Court was not justified in allowing

the writ petition based on the judgment rendered by it in Dev

Dutt vs. State of Punjab (supra) which is inapplicable in

facts and law. On the other hand, learned counsel appearing

for the first respondent submitted that considering the

\023military service\024 and Punjab civil service of the respondent, he

is eligible to be granted the benefit of pension on the civil side.

According to him, the High Court is perfectly right in following

the dictum in Dev Dutt\022s case(supra) and quashing the

communication of Accountant General, Punjab dated

02.11.2001 rejecting the claim of the respondent to club the

service rendered by him in Army and in the Punjab Education

Department.

5) We have carefully considered the rival submissions with

reference to the pleadings and also perused the annexures and

records filed along with this appeal.

6) In order to understand the claim of 1st respondent, it is

useful to recapitulate his service particulars both in the army

as well as in the Punjab civil service. As stated earlier, on

13.09.1961, he joined as Sepoy in the Indian Army. After

obtaining one year teacher\022s training, he was appointed on

12.10.1967 as Education Instructor (EI) Hawaldar. On

30.09.1987, he retired as Naib Subedar at the age of 43=

years. His date of birth being 16.01.1944. It is also not in

dispute that he was drawing pension of Rs.1,057/- and also

received DCRG to the tune of Rs.23,870/-.

7) On 10.05.1988, respondent\022s name was sponsored by

employment exchange for the post of JBT teacher in Punjab

Education Department. Though he was rejected on the

ground that he does not fulfill educational qualification for the

post, by proceedings dated 09.08.1988 Director Public

Instructions declared him as qualified. Thereafter, on

29.08.1988, he submitted representation to the Recruitment

Committee for considering his case based on the instruction

dated 09.08.1988. When Education Department, Pubjab

again invited applications, through advertisement, for

appointment as JBT teachers, the respondent applied for it

and on 01.08.1992, he was selected. On 31.03.1994, he was

issued an appointment letter and he joined at Government

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Primary School, Ludhiana on 22.04.1994. It is seen from

Annexure-P4 that at the time of joining, he was drawing his

army pension and allowed to draw the same. Since the

respondent was to retire on 31.01.2002, he submitted his

pension case on 10.10.2001 to the Accountant General. By

order dated 02.11.2001, Accountant General rejected his case

on two grounds 1) service rendered by him on civil side was

seven years nine months and nine days, which was less than

10 years as per Punjab Civil Service Rules; 2) service rendered

in defence cannot be counted as there is gap of more than 3

years as per government instructions of 1982. When the said

order was challenged before the Punjab and Haryana High

Court, following the earlier decision in Dev Dutt\022s case

(supra) after quashing the communication of the Accountant

General, necessary direction was issued.

8) It is not in dispute that the respondent is governed by

Punjab Recruitment of Ex-servicemen Rules, 1982. Rule 8

which deals with Increments and Pension clearly says that the

pay of an Ex-serviceman appointed against a reserved vacancy

shall be fixed in accordance with the provisions of Chapter VII

of the Punjab Civil Services Rules, Volume II.

9) Now let us verify the relevant provisions of Punjab Civil

Service Rules, 1970. Chapter VII deals with re-employment of

pensioners. Even in this Chapter, we are concerned with Rule

7.13, 7.14 and 7.15 which read thus:

\0237.13 A Government employee who has obtained a

compensation pension, if re-employed, may retain his

pension in addition to his pay: provided that if he is re-

employed in a post paid from the Government revenue, the

pension shall remain wholly or partly in abeyance, if the sum

of the pension and the initial pay on re-employment exceeds

his substantive pay immediately before retirement, that is, a

Government employee can draw so much of pension only as

will make his initial pay plus pension equal to his

substantive pay at the time of his retirement. Once the

amount of the pension has been fixed in conformity with the

above conditions the Government employee shall be entitled

to receive the benefit of increments in his new scale or

promotion to another scale or post without a further

corresponding reduction in pension; nor shall the amount of

pension so fixed be varied during leave. In the case, however

of a pensioner re-employed in either a permanent or a

temporary post, for bona fide temporary duty lasting for not

more than a year, the Government or, in cases where the

pension does not exceed Rs.40 a month, the authority which

controls the establishment on which the pensioner is to be

employed may allow the pension to be drawn in whole or in

part even though the sum total pay and pension exceeds his

substantive pay at the time of his retirement.\024

\0237.14 If the re-employment is in qualifying service, the

Government employee may either retain his pension (subject

of the proviso stated in rule 7.13) in which case his former

service will not count for future pension, or cease to draw

any part of his pension and count his previous service.

Pension intermediately drawn need not be refunded.\024

\0237.15 If a Government employee does not within three

months from the date of his re-employment, exercise the

option conceded by rule 7.14, of ceasing to draw pension and

counting his former service, he can not, thereafter, do so

without the permission of the competent authority.\024

10) The above provisions make it clear that employee

can draw so much pension only if his initial pay plus

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pension does not exceed his substantive pay at the time of

retirement. Further, if previous service is counted, the

pension remains in abeyance. It also shows that if option is

not exercised in three months, he cannot do so at a later

stage without the approval of the competent authority. The

period rendered shall count towards the service only if

person has not earned pension, any bonus or gratuity paid

is refunded to the State Government. Admittedly, the

respondent was getting pension of Rs.1,057/- per month. It

is also not in dispute that he received DCRG (gratuity) to

the tune of Rs.23,870/-.

11) Now coming to entitlement or counting his military

service for pension on serving as civil servant, we have to

consider Punjab Government National Emergency

(Concession) Rules, 1965 (since repealed under Punjab

Recruitment of Ex-servicemen Rules, 1982). Section 2

defines \023military service\024 which reads as follows:

\023Definition:- For the purposes of these rules, the

expression \021military service\022 means enrolled or

commissioned service in any of the three wings of the

Indian Armed Forces (including service 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

purposes of these rules. Any period of military

training followed by military service shall also be

reckoned as military service.\024

Admittedly, respondent was in army from 13.09.1961 to

30.09.1987. It is also not in dispute that emergency was

declared from 26.10.1962 to 09.01.1968. In view of the

admitted factual position and as per the Emergency Rules,

1965, the service can be counted only if the person joined

during the emergency and not before or after it. In view of

the same, the respondent who had admittedly joined the

army on 13.09.1961 as Sepoy is not entitled to the benefits

of the provisions of the Punjab Government National

Emergency Rules, 1965 when emergency was imposed on

26.10.1962. In other words, he is not entitled to get his

\023military service\024 counted for pension on serving as civil

servant when his case does not fall within the definition of

\023military service\024 which is service rendered by a person

during emergency. Further, as rightly pointed out by

learned counsel for the State because the respondent who

has been enjoying the pension from the Army throughout is

not entitled to claim pension from the State in view of

ineligible period and he cannot have double benefit.

Inasmuch as the 1st respondent has rendered service as

civil servant from 22.09.1994 to 31.01.2002 only is not

entitled to pension contrary to the statutory rules when the

minimum qualifying service should not be less than 10

years entitling a person for pension. The \023military service\024

rendered by him has to be ignored as he admittedly joined

Army prior to the emergency. It is useful to refer to

judgment in Ram Janam Singh vs. State of U.P. and

Another, (1994) 2 SCC 622. In a similar situation, this

Court has held as under:

\02312. \005 \005 \005 If the benefits extended to such persons who

were commissioned during national emergencies are

extended even to the members of the Armed Forces who

joined during normal times, members of the Civil Services

can make legitimate grievance that their seniority is being

affected by persons recruited to the service after they had

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entered in the said service without there being any rational

basis for the same.\024

In para 13, this Court further held that the persons who had

joined either before or after the declaration of emergency had

voluntarily offered their services for the defence of the country

belonged to a separate class and there was no question of

discrimination in giving any benefit in matters of seniority by

the rules. In para 14, it has held:

\02314. Can it be said that the persons who had joined Army

after the declaration of emergency due to foreign aggression

and those who joined after the war came to an end stand on

the same footing? Those who joined Army after revocation of

emergency joined Army as a career. It is well known that

many persons who joined army service during the foreign

aggression, could have opted for other career or service. But

the nation itself being under peril, impelled by the spirit to

serve the nation, they opted for joining Army where then risk

was writ large. No one can dispute that such persons formed

a class by themselves and by rules aforesaid an attempt has

been made to compensate those who returned from war if

they compete in different services. According to us, the plea

that even persons who joined army service after cessation of

foreign aggression and revocation of emergency have to be

treated like persons who have joined army service during

emergency due to foreign aggression is a futile plea and

should not have been accepted by the High Court. It need

not be impressed that whenever any particular period spent

in any other service by a person is added to the service to

which such person joins later, it is bound to affect the

seniority of persons who have already entered in the service.

As such any period of earlier service should be taken into

account for determination of seniority in the later service

only for some very compelling reasons which stand the test

of reasonableness and on examination can be held to be free

from arbitrariness.\024

12) Relying on Ram Janam Singh\022s case (supra), this

Court, in a subsequent decision in Chittaranjan Singh

Chima and Another vs. State of Punjab and Others, (1997)

11 SCC 447 while considering the very same rules, namely,

Punjab Government National Emergency (Concession) Rules,

1965 held as under:

\0234. \005 \005It would, thus, be seen that for the purpose of

military service, it would be an officer enrolled or

commissioned in any of the three wings of the Indian Armed

Forces and rendered service during the period of operation of

the proclamation of emergency and such of the military

service as may be declared thereafter by the Government for

the purpose of the entitlement under the Rule. Since the

appellants came to be appointed under this, they have not

been given any benefit of reckoning of the military service for

the purpose of seniority and consequential benefits in the

civil service. The 1968 Rules and 1977 Rules contemplate of

giving the reservation and also consequential benefit of

seniority reckoning the military service to such of those

officers who rendered service in the military during

emergency with a view to encourage the personnel who came

forward to serve the country at the time of emergency.

Admittedly, the appellants came to be appointed not during

the emergency but in the regular process.\024

13) In the case on hand, the 1st respondent was not inducted

in \021military service\022 when the emergency was declared on

26.10.1962. We have already held that the service can be

counted only if the person has joined during the emergency

and not before it. The ratio in the above mentioned cases also

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supports the same conclusion. All these relevant materials

have not been adverted to by the High Court and it merely

followed Dev Dutt\022s case (supra) which facts are not

applicable to the case on hand.

14) In the light of the above discussion, the impugned order

of the High Court is set aside and the appeal is allowed. No

costs.