Punjab-Haryana High Court
Capt.Indu Boken vs State Of Haryana And Others on 11 October, 2012
Author: Augustine George Masih
Bench: Augustine George Masih
C.W.P.No.20053 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
C.M.No.298 of 2012 in
C.W.P.No.20053 of 2009 (O&M)
Date of Decision:- 11.10.2012
Capt.Indu Boken ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
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CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
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Present:- Mr.Ravi Verma, Advocate,
for the petitioner.
Mr.Harish Rathee, Sr.D.A.G., Haryana.
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AUGUSTINE GEORGE MASIH, J. (Oral)
Petitioner admittedly served Indian Army as an Education Officer from 21.8.1993 to 20.8.1998 on Short Service Commission basis and thereafter was retired. She applied for appointment to the post of Principal (School Cadre) H.E.S.-II and was duly selected and issued appointment letter dated 15.11.2002. In pursuance thereto, she joined as a Principal (School Cadre) H.E.S.-II on 20.11.2002 with the Education Department, Haryana.
Petitioner put-forth her claim for counting her Military service for the purpose of pay fixation/annual increments and pension etc. as provided under Rule 4.3 of the Punjab Civil Services Rules Vol.II. (for short PCS Rules). The claim of the petitioner stands rejected by the respondents C.W.P.No.20053 of 2009 -2- vide order dated 27.7.2009 (Annexure P-8) on the ground that she is not entitled to the benefit of said Rule as her claim is not covered by the Punjab Government National Emergency (Concession) Rules, 1965 as also under Rule 4.3 of the PCS Rules Vol.II. Reliance placed upon by the counsel for the petitioner in the case of Major R.K.Sharma, which was based upon the judgment passed by this Court in CWP No.3265 of 1995 Capt.V.S.Narwal vs. Chief Secretary to Government of Haryana, decided on 13.11.1995, was held to be not applicable to the claim of the petitioner as the same was a judgment in personam and no benefit thereof could be granted to the petitioner. It is this order which is challenged by the petitioner through the present writ petition.
Counsel for the petitioner has referred to Rule 4.3 (a) of the PCS Rules Vol.II to contend that the respondents have simply by stating in the order dated 27.7.2009 (Annexure P-8) that the claim is not covered under the said Rule brushed aside the justified claim of the petitioner. He contends that according to the said Rule, if a person does not earn pension because of the service rendered by him in the Military, is entitled to the pensionary benefits by counting the service rendered by the petitioner provided that she refunds the gratuity and bonus, if any, received at the time of her relieving from service. Petitioner is also entitled to the grant of advance increments for the service rendered by her in the light of the judgment passed by this Court in Capt.V.S.Narwal's case (supra) (Annexure P-2). He contends that the claim of the petitioner being fully covered under the statutory Rules as also the judgment passed by the Division Bench of this Court, as referred to above, the present writ petition C.W.P.No.20053 of 2009 -3- deserves to be allowed by quashing the impugned order.
On the other hand, counsel for the respondents contends that the claim, as has been made by the petitioner, has been duly considered by the respondents and by passing a well reasoned and speaking order dated 27.7.2009 (Annexure P-8), the same has been rejected. He contends that since the claim of the petitioner is not covered under the Emergency Rules, it has rightly been rejected. He, accordingly, contends that the writ petition deserves to be dismissed as the same is devoid of any merit.
I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.
Rule 4.3 of the PCS Rules Vol.II reads as follows:-
"4.3(a) Service rendered by an employee belonging to one of the classes mentioned in the Schedule below after attaining the age of 18 years, which is pensionable under military rules, but which terminates before a pension has been earned in respect of it, may, at the discretion of Government, be allowed to count, when followed by service qualifying for pension under civil rules, as part of such service. Service so allowed to count shall, however, be restricted to service, within or outside employee's unit or department, in India or elsewhere, which has been paid from Indian revenues or for which a pensionary contribution has been received by Indian revenues:
Provided that any bonus or gratuity received in lieu C.W.P.No.20053 of 2009 -4- of pension on, or since, discharge from military service shall be refunded in such number of monthly instalments, not normally exceeding 36 and beginning from such date, as in each case, the Government may decide. The amount shall be refunded along with interest calculated at the rate applicable on General Provident Fund accumulation from time to time computed in the same manner (i.e. with annual compounding for the period from the date of receipt of pensionary/gratuity benefits till the date of refund to the Government:
Provided further that in cases where after the issue of the orders by the competent authority on the basis of option exercised by an employee for counting of past service for pensionary purposes, if an individual does not deposit the amount of bonus/gratuity already received by him from military authorities within one month of the receipt of communication from the Government/autonomous body, penal interest shall also be applicable for military service benefit under the Punjab National Emergency (Concession) Rules, 1965. 4.3 (b) Service pensionable under military rules which does not terminate before a pension has been earned in respect of it shall not be allowed to count for pension under civil rules without the sanction of the competent authority."C.W.P.No.20053 of 2009 -5-
A perusal of the above Rule would show that the service rendered by an employee after attaining the age of 18 years with the Military is to be counted for the purpose of pensionary benefits. This is, however, subject to certain conditions which have been imposed therein such as the deposit of bonus or gratuity received in lieu of pension which an employee earns on his discharge from Military service. The only rider is that the said service should be followed by a civil service and in the said civil service, this benefit is to be counted. It does not specify as to when it has not to be counted and the only exception therein is that if an employee has earned pension on his/her discharge from Military service, he/she would not be entitled to the counting of the said benefit.
The judgment rendered by the Division Bench of this Court in Capt.V.S.Narwal's case (supra), while interpreting Rule 4.3 (a) of the PCS Rules Vol.II has held as follows:-
"As regards the claim to pension, the provision in Rule 4.3(ibid) is clear. It postulates that the service rendered by an employee after attaining the age of 18 years, which is pensionable under Military Rules, when followed by civil service shall be allowed to count towards pension. The Rule further postulates that any bonus or gratuity received by the employee in lieu of pension on his discharge from the military service shall be refunded in such monthly instalments as the Government may decide. In view of this provision, the petitioner would be entitled to count the period of service C.W.P.No.20053 of 2009 -6- from March 18, 1978 to April 4, 1984 towards pension on his retirement from the civil post. He would also have to refund the amount of gratuity or bonus, if any, received by him, in lieu of pension at the time of his discharge."
In view of the above, the action of the respondents rejecting the claim of the petitioner for counting the said service for the purpose of pensionary benefits cannot be accepted.
Claim has further been made for counting the service for the purpose of grant of increments for pay fixation purposes for the service rendered by her in Military. The said benefit also has to be granted to the petitioner in the light of the fact that the Government of Haryana has accepted the decision conveyed by the Government of India vide Notification dated 31.7.1986 regarding grant of advance increments to the officers who joined civil service after their discharge from the Army. Reference in this regard can be made to the implementation of the decision in the case of Ex. Capt. J.S.Bishnoi. The same benefit should be granted to the petitioner. This aspect was also considered by the Division Bench of this Court in the case of Capt.V.S.Narwal and ultimately while granting the relief to the petitioner, a direction had been issued to count the service rendered in Army for the grant of advance increments as also pension. The case of the petitioner, as claimed through the present writ petition is, on all fours, covered by the judgment passed by this Court in Capt.V.S.Narwal's case (supra) and, therefore, the impugned order dated 27.7.2009 (Annexure P-8) cannot survive and is hereby set aside. C.W.P.No.20053 of 2009 -7-
The present writ petition is allowed; a direction is issued to the respondents to count the service rendered by the petitioner in the Army from 7.3.1993 to 20.8.1998 towards the grant of advance increments as also the pension. The arrears be calculated and released to the petitioner within a period of three months. Petitioner shall, however, deposit the amount which she has received as gratuity or bonus on her discharge from Army which shall be calculated by the respondents and intimated to her within a period of one month. This amount shall be deposited by her within a period of two weeks thereafter.
October 11, 2012 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE