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PETITIONER: HAV BHAGAT SINGH, ETC.

       Vs.

RESPONDENT: STATE OF HARYANA & ANR., ETC.

DATE OF JUDGMENT:       15/03/1996

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) VERMA, JAGDISH SARAN (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR 1705            1996 SCALE  (2)851

ACT:

HEADNOTE:

JUDGMENT:                             WITH              Writ Petition (C) No. 571 of 1994                       J U D G M E N T BHARUCHA, J.      The appeal  aforementioned impugns the order of summary dismissal of  a writ  petition filed by the appellant in the High Court  of Punjab  & Haryana. Though the order only says "dismissed", it was clearly passed by reason of the judgment of this  Court in  Dhan Singh  & Ors. vs. State of Haryana & Ors., 1991  Supp. (2)  S.C.C. 190.  The writ petition arises upon facts  similar to  those in the appeal and it seeks re- consideration of the aforementioned judgment.      The  facts  that  we  state  are  of  the  appeal.  The appellant was  enrolled as  a Sepoy  in  the  Army  on  30th January 1959.  He served  in the Army until some date in the year 1976,  by which   time he had been promoted to the post of Hawaldar. In 1978 the appellant joined the service of the State of Haryana (the first respondent) as a clerk.      The Government of Punjab had framed the Punjab National Emergency (Concession) Rules, 1965, and they were adopted by the State  of Haryana  when it  was formed. These Rules gave benefits to  persons who had been in military service before joining Government  service. "Military  service" was defined in Rule 2 thus :      "For the  purposes of  these  Rules      the  expression   Military  Service      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  of  India  on

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    October  26,  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". On 4th August, 1976, the aforesaid definition was amended by the State of Haryana so that it read thus :      "For the  purposes 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  October      26, 1962  in any  of the 3 Wings of      the Indian  Armed Forces (including      the service  as a  Warrant Officer)      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." It will  be seen that military service as originally defined meant service, enrolled or commissioned, in the armed forces rendered during  the period  of operation  of the Emergency. (The Emergency  was that proclaimed in 1962). By the amended provision military  service meant  only the service that was rendered by a person who was enrolled or commissioned in the armed forces  during the  period the  Emergency remained  in force. The amendment, therefore, curtailed the definition of military service  and excluded  therefrom those who had been enrolled or  commissioned before  the  proclamation  of  the Emergency and had served during its operation.      The validity  of the  retrospective application  of the amended definition of military service came to be considered by this  Court in Ex. Capt. K.C. Arora and Anr. vs. State of Haryana and  Ors., 1984-3  S.C.C. 281.  The appellants  were persons who  had already  entered Government service. It was held that the amendment "Restricted the benefits of military service upto  January 10,  1968, the date on which the first emergency was  lifted with the result that the vested rights which had  accrued to the petitioners in 1969, 1970 and 1971 have  been   taken  away".  The  notification  amending  the definition of  the expression  ‘military service’  in Rule 2 was declared  to be  ultra vires the Constitution insofar as it prejudicially  affected persons  who had already acquired rights.      The validity  of the amended definition came up for the consideration of  this Court  again in Dhan Singh & Ors. vs. State of  Haryana & Ors., 1991 Supp (2) S.C.C. 190, and this is the  judgment whose  reconsideration is  sought.  It  was argued that  the amendment  confining  military  service  to those who  had joined during the operation of the Emergency, that is, between 26th October, 1962, ant 10th January, 1968, and denying  the same  benefit to those who had joined prior to the  proclamation  of  the  Emergency  was  unreasonable, arbitrary and based on no classification. The contention was repelled. It  was held that the State of Haryana could amend

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the Rules  and   withdraw the  concession in exercise of the power conferred  under Article  309 of  the Constitution. It was open  to the  State to lay down any rule for determining seniority in  service and  the  court  could  not  interfere unless  it  resulted  in  inequality  of  opportunity  among employees belonging  to the  same class.  When  a  rule  was challenged as   denying  equal protection,  the question for determination was  not whether it resulted in inequality but whether there  was some  difference which  bore a  just  and reasonable relation  to the  object of  the legislation. The court had  to examine whether the classification rested upon differential discriminating  the persons  or things  grouped from those  left out  and whether  such differential  had  a reasonable relation  t the object sought to be achieved. The Emergency had  been  imposed  in  1962  on  account  of  the aggression by  Chinese forces  on Indian territory. In order to attract  young men  to  join  military  service  at  this critical juncture,  the Central  and State  Governments  had promised them  benefits. The  young men  who had  joined the military service  during the  Emergency and  those who  were already in  service and  had been  compelled to serve during the Emergency  formed two  distinct classes.  Those who  had joined the army before the proclamation of the Emergency had chosen the  career voluntarily  and their service during the Emergency was  as a matter of course. Those who had enrolled or were  commissioned during  the Emergency,  on  the  other hand, had, on  account of the call of the nation, joined the army at  a critical  juncture to  save the  motherland.  The latter formed a class by themselves and could not be equated to those  who had joined the army before the proclamation of the Emergency. Benefits had been promised to persons who had heeded the  call of  the nation  at that  critical  juncture because   they   had   foregone   job   opportunities.   The differential was,  therefore, intelligible  and had a direct nexus to  the object  sought to  be achieved.  The amendment could not,  therefore,  be  held  to  be  discriminatory  or arbitrary.      On 7th  October, 1991, the Chief Secretary of the State of Haryana addressed a circular letter which referred to the judgment  in  Dhan  Singh’s  case  and  clarified  that  the benefits of  military service  "may not  be  withdrawn  from those Ex-servicemen  who had joined the State Services prior to the  amendment of  the  rules  vide  Haryana  Government, Notification No.GSR  182/Const./Art.309/Amd(2)/76, dated the 4th August,  1976 even  if  they  had  joined  the  military services before  emergency  i.e.  26.10.1962.  However,  the benefit of  Military service  granted to those Ex-servicemen who joined  army before  26.10.1962 and  were  appointed  to State services  after the issue of Notification dated 4.8.76 may withdrawn".      Learned counsel  for the  appellant submitted  that the judgment  in  Dhan  Singh’s  case  required  reconsideration because there  was discrimination  amongst  the  homogeneous class of  servicemen. He also submitted that, by issuing the circular letter  dated  7th  October,  1991,  the  State  of Haryana was purporting to regulate the discharge of military personnel without taking into consideration the fact that it was necessary  to maintain  a minimum  strength thereof. Our attention was  invited to  Rules 7,  8 & 9 of the said Rules and it  was submitted that, regardless of the curtailment of the  definition  of  military  service  by  the  aforestated amendment, some persons remained unaffected thereby, so that there was discrimination.      Rules 6  & 7  of the  said Rules  relate to  the period spent by  a Government  employee on military service. Rule 8

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deals with  a temporary Government servant who, after return from military  service, is  employed in  Government service. The appellant  was not  a Government  employee, permanent or temporary, before he was enrolled in military service and we are, therefore,  not called upon to determine the  effect of Rules 6,  7 and  8. We  may, however, point out that each of these rules  uses the expression "military service" and that expression in  these rules must be construed only as defined by the  amendment. The  circular letter  dated 7th  October, 1991, sets out what the combined effect of the cases of K.C. Arora and  Dhan Singh  is. There is no question of the State attempting to  regulate the  discharge of military personnel thereby.      The Rules  offered benefits  to those  who joined State Government service after having seen military service during the Emergency.  It was  open to  the State  to withdraw  the offer, but  not qua those who had already accepted the offer and joined  the State Government service. Hence was rendered the decision  in K.C. Arora’s case. The State Government did not withdraw the offer wholly but restricted it to those who had enrolled or were commissioned in the armed forces during the Emergency.  The State  Government was entitled to do so. In our  view, there  is a  clear and intelligible difference between those  who had  already chosen the armed forces as a career when  the Emergency  was declared  and those  who, in response to the nation’s call, joined the armed forces after the Emergency was declared. It was is the country’s interest at the critical juncture to make service in the armed forces attractive and  compensate those  who would  otherwise  have chosen other  vocations. The grant of benefits to the latter class while  denying them  to the former class is in no  way arbitrary or discriminatory.      The Rules  did not  confer an indefeasible right on all persons who  had served  in  the  armed  forces  during  the Emergency. Only  those of  them who  had  joined  the  State Government’s service  while  the  unamended  Rules  operated acquired a  vested right, by reason of their having accepted the offer  made thereby,  which could not be defeated by the amendment.      The appeal and writ petition must, therefore, fail.      We note with regret that we have received no assistance from learned  counsel for the State and that his explanation was that he had received no instructions.      The appeal  and the  writ petition are dismissed. There shall be no order as to costs.