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PETITIONER: DHAN SINGH AND ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS.

DATE OF JUDGMENT05/12/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) SHARMA, L.M. (J)

CITATION:  1991 AIR 1047            1990 SCR  Supl. (3) 423  1991 SCC  Supl.  (2) 190 JT 1990 (4)   735  1990 SCALE  (2)1216

ACT:     Constitution   of   India,  1950:   Articles   14,   16, 309--Amendments  to Rules 2 and 4(ii) of  Punjab  Government National        Emergency        (Concession)         Rules, 1965--Classification--Persons   who   joined   before/during emergency--Reasonableness   and  validity   of--Government’s power to amend the Rules and to withdraw concessions--Inter- ference of Court--When.     The Punjab  Government National Emergency   (Concession) Rules,  1965:  Rules 2  and  4(ii)--Constitutional  validity of--Benefit  of  military service--Those who  joined  before proclamation of emergency --Whether entitled to.

HEADNOTE:         The  appellants  and petitioners  are  ex-servicemen re-employed in the service of Respondent State. They  served the  Indian Army during emergency from 1962 to 1968.  Appel- lants  4, 5, 7 and 8 joined the Army during emergency  while the other appellants and writ petitioners joined before  the emergency.  Certain  benefits  like  increments,  seniority, pension  etc. were extended to such persons by the  Respond- ent-State  by adopting the Punjab Government National  Emer- gency  (Concessions) Rules, 1965. However, by  notifications dated  22.3.1976, 9.8.1976 and 5.11.1976 certain  amendments to  Rules  2 and 4 were introduced by the  Respondent  State with retrospective effect from 1.11.1966 resulting in denial of such benefits to them. Some of the amendments were  chal- lenged  before this Court and were declared ultra vires  the Constitution of India.     On 4.8.1986 the Respondent-State issued instructions  to the  effect that the ex-servicemen employees who joined  the Civil  Service  after the issue of the  notifications  would continue to be governed by the same. The appellants and some of  the writ petitioners who had joined  government  service since  December  1976  were denied the  benefits  under  the Rules,  since  under the amended Rules only those  who  were enrolled or commissioned during emergency were eligible  for such benefits, and not those who joined the Army before  the emergency. 424     The  Writ  Petition filed by the appellants  before  the

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High Court was dismissed and they have preferred the present appeal.  The  Writ Petitioners admittedly  joined  the  Army before the emergency, have directly challenged the notifica- tions in this Court.     It  has  been contended inter alia  that  the  amendment confining  the military service to those who  joined  during emergency and denying the same to those who joined prior  to the  emergency was unreasonable and arbitrary and  violative of  Article  14 of the Constitution of India  and  that  the differential  treatment  meted  out to  persons  who  joined earlier and were released later, but served during  emergen- cy, amounts to denial of equal opportunity in the matter  of employment and thus violative of Article 16 of the Constitu- tion of India.     Allowing  the  appeal in part, and dismissing  the  Writ Petitions, this Court,     HELD:  1. The State could amend the Rules  and  withdraw the  concession  in exercise of the  power  conferred  under Article 309 of the Constitution. It is open to the State  to lay  down any rule for determining seniority in service  and the  Court cannot interfere unless it results in  inequality of  opportunity  among the employees belonging to  the  same class.  When a rule is challenged as denying  equal  protec- tion,  the  question for determination by the Court  is  not whether  it has resulted in inequality but whether there  is some  difference which bears a just and reasonable  relation to  the object of legislation. Mere differentiation  or  in- equality of protection does not per se amount to discrimina- tion within the inhibition of equal protection clause  under Article  14. To attract the attention of the clause,  it  is necessary  to show that the selection or differentiation  is unreasonable  or arbitrary and that it does not rest on  any rational basis having regard to the object which the  Legis- lature  has  in view. The Court has to examine  whether  the classification  can be deemed to rest upon differentia  dis- criminating  the persons or things grouped from  those  left out  and whether such differentia has a reasonable  relation to the objects sought to be achieved irrespective of whether the  rule  is intended to apply to person or thing or  to  a certain class of persons or things. Therefore, the policy or the  object of the legislation are the  relevant  considera- tions. [431D-G]     2. The young persons who have joined the military  serv- ice during the national emergency and those who were already in  service and due to exigencies of service had  been  com- pelled  to  serve  during the emergency  form  two  distinct classes. The appellants and the petitioners 425 who  joined the Army before the proclamation  of  emergency, had  chosen the career voluntarily and their service  during emergency  was as a matter of course. They had no option  or intention  of  joining  the government  service  during  the period of emergency as they were already serving in the Arm. The persons who enrolled or commissioned during the emergen- cy,  on  the other hand, had no account of the call  of  the nation joined the Army at that critical juncture of national emergency  to save the motherland by taking a  greater  risk where danger to the life of a member of the armed forces was higher.  They include persons who could have  pursued  their studies, acquired higher qualifications and joined a  higher post and those who could have joined the government  service before  attaining  the maximum age  prescribed  and  thereby gained seniority in the service. Forgoing all these benefits and avenues, they joined the Army keeping in view the  needs of  the  country and assurances contained in  conditions  of

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service  in executive instructions. The latter form a  class by themselves and they cannot be equated to those who joined the Army before the proclamation of the emergency.  Benefits had been promised to such persons who heeded to the call  of the  nation at that critical juncture. Older man by  joining the military service lost chance of joining other government service  and when he joins such service on release from  the Army  younger man had already occupied the posts. To  remove the hardship, the benefit of military service was sought  to be  given to those young persons who  were  enrolled/commis- sioned  during  the period of emergency forgoing  their  job opportunities. The differential is, therefore,  intelligible and has a direct nexus to the objects sought to be achieved. The  petitioners  cannot, therefore, challenge the  rule  as discriminatory  or arbitrary. Such of those  appellants  and the petitioners who have joined the Army before the  procla- mation of the emergency are not, therefore, entitled to  the benefit of military service as per the Emergency  Concession Rules. [432B-G]     K.C.  Arora & Ors. v. State of Haryana & Ors., [1984]  3 SCC  281;  State of Gujarat v. Raman Lal  Keshav  Lal  Soni, [1983] 2 SCC 33; Raj Pal Sharma & Ors. v. State of Haryana & Ors., [1985] (Supp.) SCC 72, referred to.     Since the proviso to Rule 4(ii) has already been  struck down  in Raj Pal Sharma’s case, such of the  appellants  who had been released from the military service on compassionate grounds  are  entitled  to the benefits  of  their  military service. [432H]     Raj Pal Sharma & Ors. v. State of Haryana & Ors., [1985] (Supp.) SCC 72, applied. 426     The  petitioner in Writ Petition No. 959 of 1989 is  not entitled  to any further relief as the service of the  peti- tioner after the lifting of the emergency could not,  there- fore,  count  for  determining his  seniority  and  whatever benefits he is entitled to had been granted earlier.  [433A- B]     Ex-capt,  Randhir  Singh Bhull v. S.D. Bhambri  &  Ors., [1981]  3  SCC 55; Ex-Capt. A.S. Parmer & Ors. v.  State  of Haryana & Ors., [1986] (Suppl.) SCC 283, relied on.

JUDGMENT: