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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.