Supreme Court of India
Dhan Singh And Ors. Etc. Etc vs State Of Haryana And Ors on 5 December, 1990
Equivalent citations: 1991 AIR 1047, 1990 SCR SUPL. (3) 423, AIR 1991 SUPREME COURT 1047, 1991 LAB. I. C. 683, 1991 (1) UJ (SC) 267, (1990) 4 JT 735 (SC), 1990 (4) JT 735, 1991 (2) SCC(SUPP) 190, 1991 SCC (SUPP) 2 190, (1991) 62 FACLR 131, (1991) 2 LAB LN 8, (1991) 1 PUN LR 658, (1991) 1 SERVLR 200, (1991) 17 ATC 317, (1991) 1 CURLR 244, 1991 SCC (L&S) 1179
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
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
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:
