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CASE NO.: Appeal (civil)  691 of 2005

PETITIONER: State of Haryana and Anr.                                        

RESPONDENT: Shri Om Prakash                                                  

DATE OF JUDGMENT: 10/07/2006

BENCH: ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       The State of Haryana calls in question correctness of the  judgment rendered by a Division Bench of the Punjab and  Haryana High Court holding that the respondent was entitled  to pension in terms of Rule 4(iii) of the Punjab Government  National Emergency (Concession) Rules, 1965 (in short the  ’Rules’). A writ petition was filed by the respondent before the  High Court claiming that he is entitled to pension taking into  consideration the services rendered by him in the Armed  Forces during the period when emergency was proclaimed.  Placing reliance on Rule 4 (iii), the aforesaid claim of the  respondent was declined by the appellant.  It was stated that  there was a gap of more than three years between the date of  discharge from the Armed Forces and his date of appointment  as Veterinary Live Stock Development Assistant.   

       In the writ petition filed the respondent re-iterated his  claim for pension. According to him he fulfilled the conditions  and therefore he was entitled to pension. The State reiterated  its stand that since there was a gap of more than three years,  he was not entitled to any pension. The High Court held  that  the respondent was entitled to pensionary benefits because  the services rendered by him during the period of his military  service when emergency remained proclaimed shall be counted  in addition to the qualifying service rendered by him in civil  employment for the purpose of determining pensionary  benefits. A direction was given to work out the details and  grant the benefits.           

       In support of the appeal, learned counsel for the State  submitted  that the High Court did not correctly interpret Rule  4(iii) of the Rules though the rule was noticed. A bare reading  of the stipulated condition in the said rule makes the position  clear that only if there was a gap of less than three years the  benefit is available. Learned counsel for the respondent on the  other hand supported the judgment.  

In order to appreciate the rival stands Rule 4(iii) needs to  be quoted. The same reads as follows:

"4(iii)   Increments Seniority and Pension:-  Period of Military service shall count for

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increments, seniority and pension as under:-

       Pension:        The period of military service  mentioned in Clause-I shall count towards  pension only in the case of appointments of  permanent service or post under the Govt.  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)     The period, if any, between the date  of discharge from military service and the date  of 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 3 years may also be allowed to count  for pension in exceptional cases under the  orders of the Government."

       A bare reading of the provision makes the position clear  that for the purpose of computing the period of permanent  service, two conditions are to be kept in view. First is that the  person concerned should not have earned a pension under  Military Rules in respect of the military service in question.  The second condition in fact has two parts.  For the purpose of  working out the entitlement, the period if any between the date  of discharge from military service and the date of appointment  to any service or post under the Government shall count for  pension automatically if such period does not exceed one year.  But if the period exceeds one year but does not exceed three  years, the period may be allowed to be counted in exceptional  cases. In other words, the Government must pass an order  holding that the case was an exceptional one and, therefore,  instead of period of one year, period upto three years could be  reckoned for the purpose of computation. If the period is more  than three years, there is no scope for including the same for  the purpose of working out the pensionary entitlements.  

       Learned counsel for the respondent submitted that there  is no dispute that the date of discharge is 13.6.1967 and the  appointment was made in the year 1972. But the process for  selection had started in 1970. It is urged that his services were  regularized from 1972 after he had undergone military service.  The aforesaid plea is clearly untenable in view of the clear  language of Rule 4(iii) as quoted above. There being no dispute  that the appointment was made in 1972. It is irrelevant as to  when the process of selection had started or when the  respondent had undergone training as claimed. The language  of Rule 4(iii) is very clear to the effect that the period has to be  reckoned between the date of discharge upto the date of  appointment. When the period is undisputedly more than  three years respondent is not entitled to pensionary benefits in  terms of Rule 4(iii) and the High Court erred in holding  otherwise. The impugned order of the High Court is set aside.  The appeal is allowed. But there shall be no order as to costs.