Punjab-Haryana High Court
State Of Punjab And Another vs Baldev Singh Pawar And Others on 4 October, 2012
Bench: A.K. Sikri, Rakesh Kumar Jain
LPA No. 776 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 776 of 2012 (O&M)
Date of Decision : 04.10.2012
State of Punjab and another
...Appellants
Versus
Baldev Singh Pawar and others
...Respondents
CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. J.S. Puri, Additional Advocate General, Punjab,
for the appellants.
Mr. Ashwani Prashar, Advocate,
for the respondents.
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A.K. SIKRI, C.J. (ORAL)
The respondent, in this case, was enrolled in the Indian Navy on 02.04.1963 and he served in that capacity till 02.04.1973. He did not earn any pension in the Indian Navy, but was only granted death-cum-retirement gratuity. Thereafter, on 11.04.1975, he joined the services with the Registrar, Cooperative Societies, as Inspector. He rose to the position of Joint Registrar and retired therefrom on 31.12.2003. The dispute has arisen in respect of counting of military service from 02.04.1963 to 02.04.1973 for the purposes of pension. Since his representation for counting of military service was rejected, the respondent preferred CWP No. 11221 of LPA No. 776 of 2012 (O&M) -2- 2009, which has been allowed by the learned Single Judge vide impugned judgement dated 25.11.2011.
It is not in dispute that the counting of such a period of military service after joining civil service is regulated by Rule 8-A of the Punjab Government National Emergency (Concession) Rules, 1965. Rule 8-A reads as under:-
"8-A. Increments and Pension:-
Period of military service rendered during the First National Emergency from 26.10.1962 to 09.01.1968 shall count for increments and pension as under:-
(i) Increments - The period spent by a person on military service (restricted to emergency period from 26.10.1962 to 09.01.1968) after attaining the minimum age prescribed for appointment to any service or post, to which he is appointed, shall count for increments. Where no such minimum age is prescribed the minimum age shall be as laid down in Rules 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume II. This concession shall, however, be admissible only on first appointment.
(ii) Pension - The period of military service mentioned in clause (i) shall count towards pension only in the case of appointments to permanent services of posts, 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) Any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the State Government.
(3) 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 three years may also be allowed to LPA No. 776 of 2012 (O&M) -3- count for pension in exceptional cases under the orders of the Government."
Two fold submissions have been made by Mr. Puri, learned Additional Advocate General, Punjab. The first one is to the effect that, as per Rule 8-A, the benefit is to be given only upto 09.01.1968, whereas, the second one is to the effect that there was a gap of more than one year after he was discharged from the military service and got the appointment in the office of the Registrar, Cooperative Societies and, therefore, by virtue of Rule 3, the benefit of military service for pension is not to be accorded to the respondent.
In so far as the first contention of counting the service upto 09.01.1968 is concerned, we find that, in the instant case, provisions of Rule 8-A would not be applicable, as these provisions were introduced in the Rules by way of amendment on 08.06.2004, whereas, the respondent had retired much prior thereto i.e. on 31.12.2003. It is a common case of the parties that in the un- amended provision, there was no stipulation of restricting the benefit only upto 09.01.1968. Thus, the respondent herein shall be entitled to reckon his entire service from 02.04.1963 to 02.04.1973 rendered as military service.
In so far as the second contention of the appellants is concerned, the same has already been repelled by a Division Bench of this Court in Dev Dutt, ASI Vs State of Punjab and others, 1996 (7) SLR 807, holding that the period mentioned in Sub Rule 3 of 1965 Rules refers to the period of discharge from military service LPA No. 776 of 2012 (O&M) -4- till the appointment in the civil service and the Division Bench interpreted this provision in the said case in the following manner:-
"Clearly, the respondents, have misread and misinterpreted the aforesaid rule. This rule only provides that the period between the date of discharge from the military service and the date of appointment to any service or post would count for pension provided the same does not exceed one year. It further provides that if the period exceeds one year, then it may be allowed to be counted for the purposes of pension in exceptional circumstances under the orders of the Government but the same shall not exceed more than three years. Petitioner, in the present case, is not claiming pension for the period between his discharge from military service till his appointment in the Police Telecommunication, Punjab. Petitioner is only claiming the relief for the period which he had spent in military during the period when emergency remained in force in the country. Under this Rule, the period for which the petitioner had served in military during the emergency cannot be excluded. Respondents have clearly misinterpreted the rule and illegally withheld the benefits of the period spent by the petitioner in the military service during the emergency for the purposes of grant of increments, seniority and pension."
We, therefore, do not find any error in the judgement of the learned Single Judge. The appeal is, accordingly, dismissed.
All the pending miscellaneous applications in the present appeal also stand disposed of.
(A.K. SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 04.10.2012 Amodh