Avtar Singh vs State Of Punjab And Ors
2024 Latest Caselaw 7134 P&H

Punjab-Haryana High Court

Avtar Singh vs State Of Punjab And Ors on 4 April, 2024

                                Neutral Citation No:=2024:PHHC:043389




CWP-455-2018                     1                    2024:PHHC:043389

218   IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                                        CWP-455-2018
                                        Reserved on :01.04.2024
                                        Date of Pronouncement: 04.04.2024

AVTAR SINGH                                               ......... Petitioner
                      Versus
STATE OF PUNJAB AND ORS                                   ..... Respondents

CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL

Present :   Mr. V.K. Shukla, Advocate and
            Mr. Ashish Gupta, Advocate for the petitioner.

       Mr. Aman Dhir, DAG, Punjab.
            ****
JAGMOHAN BANSAL, J.

1. The petitioner through instant petition under Article 226 of

the Constitution of India is seeking setting aside of order dated

26.10.2012 (Annexure P-4) whereby respondent has declined to count

his military service rendered during 1st and 2nd National Emergency

towards pension.

2. Mr. V.K. Shukla, Advocate, at the outset, submits that at

present grievance of petitioner is confined to counting of military service

rendered during 2nd National Emergency for the purpose of pension.

3. The petitioner served Indian Army as Sepoy during both

National Emergencies sprawled from 26.10.1962 to 10.01.1968 and

03.12.1971 to 26.03.1977. He, after superannuation from Indian Army,

joined Punjab Police as Constable w.e.f. 15.10.1988. The State of Punjab

framed Punjab Government National Emergency (Concessions) Rules

1965. The State further framed Punjab Recruitment of Ex-Serviceman

Rules, 1982 (for short '1982 Rules'). The 1982 Rules came to be

amended by notification dated 08.06.2004. The said rules came to be

1 of 5

Neutral Citation No:=2024:PHHC:043389

CWP-455-2018 2 2024:PHHC:043389

further amended by notification dated 15.10.2009 and 10.04.2012.

4. The petitioner claims that as per notification dated

15.10.2009, military service rendered during 2nd National Emergency is

required to be counted towards pension, in case of an appointment to a

permanent post under the State Government. He relies upon judgment

dated 13.11.2014 passed by Division Bench of this Court in CWP

No.17661 of 2013 titled as 'Rajinder Singh Vs. State of Punjab and

others'.

Mr. V.K. Shukla, Advocate, submits that petitioner is not

entitled to benefit of increment, however, his service is required to be

counted for the purpose of pension. He cannot be denied said benefit on

the sole ground that he had retired prior to introduction of Rule 8-B. The

Rule 8-B was inserted w.e.f. 15.10.2009 and it is applicable to every

person who had served during 2nd National Emergency.

5. Per contra, Mr. Aman Dhir, DAG, Punjab submits that

notification dated 15.10.2009 was amended by notification 10.04.2012.

The notification dated 10.04.2012 cleared the clouds created by

notification dated 15.10.2009 to the extent that benefit of counting of

military service rendered during 2nd National Emergency would be

available to those employees who were in service on 01.12.2011 or are

appointed thereafter. The petitioner retired from service of State

Government on 31.08.2006, thus, he was not entitled to benefit of

notification dated 15.10.2009 as amended by notification dated

10.04.2012.

6. I have heard the arguments of both sides and with the able

assistance of learned counsels have perused the record.

                                 2 of 5

                                Neutral Citation No:=2024:PHHC:043389




CWP-455-2018                    3                         2024:PHHC:043389

7. The entire controversy centers around the scope and

interpretation of Rule 8-B of Punjab Recruitment of Ex-Serviceman

Rules, 1982. The said rule was introduced by notification dated

15.10.2009 and it was further amended by notification dated 10.04.2012.

Rule 8-B as amended is reproduced as below:

"8-B. Increments and pension,- Period of military service rendered during the Second National Emergency from 3rd December 1971 to 25th March, 1977, shall count for increments and pension as under:-

(a) Increments- The increments for the aforesaid service shall be paid to those persons only, who ('joined and' omitted by notification dated 10.04.2012) rendered service during the aforementioned period. This benefit will, however be given only at the time of making first appointment on regular basis on a civil post or service under the Government. However, these increments will be taken into account when the pay of a person is subsequently fixed on account of his promotion, selection, new recruitment or revision of pay scale or otherwise; and

(b) Pension- The period of military service, referred to above shall count towards pension only in case of an appointment to a permanent post under the Government subject to the following conditions, namely:-

(i) the person concerned, should not have earned a pension under military rules in respect of the military service in question;

ii) any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the Government; and

(iii) the period, if any, between the date of discharge

3 of 5

Neutral Citation No:=2024:PHHC:043389

CWP-455-2018 4 2024:PHHC:043389

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 count for pension in exceptional cases as per orders of the Government.

*These benefits shall be available to all the persons who were appointed in Government Service against reserved vacancies and were in Service as on 1st December, 2011 or are appointed thereafter:

Provided that these benefits shall be admissible for pay fixation on notional basis with effect from 1st January, 2012 and arrears on account of pay shall not be paid.

* Inserted by Notification dated 10.04.2012." From the perusal of aforesaid Rule 8-B, it is evident that in

the original rule, it was not cleared whether it would be applicable to

employees in service as well as retired or it would be applicable to

particular kind of employees. The notification dated 10.04.2012 cleared

the shrouded mystery. The notification dated 10.04.2012 made it clear

beyond the iota of doubt that benefits shall be available to those persons

who were appointed in Government service against reserved vacancies

and were in service as on 01.12.2011 or are appointed thereafter.

8. The petitioner concededly was not in service on 01.12.2011.

He retired from service on 31.08.2006 i.e. much prior to introduction of

Rule 8-B. The reliance placed by petitioner on judgment of Division

Bench of this Court in Rajinder Singh (Supra) is misplaced. In the said

case, the Division Bench has not adverted with para added by notification

dated 10.04.2012 in Clause (b) of Rule 8-B. Notification dated

4 of 5

Neutral Citation No:=2024:PHHC:043389

CWP-455-2018 5 2024:PHHC:043389

10.04.2012 inserted one para in Clause (b) after sub-clause (iii) of Rule 8-

B. No doubt, it was provided in the notification dated 10.04.2012 that

amended rules shall come into force w.e.f. 01.12.2011, however, the

newly inserted para made it clear that these benefits shall be available to

only those persons who were in service on 01.12.2011 or are appointed

thereafter. The language of the notification is clear and from the reading

of notification dated 10.04.2012, it is evident that State has restricted

benefit of counting military service. It has been made applicable to

employees who were in service on 01.12.2011.

9. The petitioner concededly retired in 2006 and Rule 8-B came

to be inserted in 2009. The said rule was further amended by notification

dated 10.04.2012. The amendment made it clear that benefit of counting

of military service for pension would be available only to those

employees who were in service prior to 01.12.2011 or are appointed

thereafter. The petitioner was not in service on 01.12.2011, thus, he is not

entitled to benefit, carved out by Rule 8-B of 1982 Rules of counting of

military service for pension. The claim of the petitioner is unsustainable.

10. In the wake of above discussion and findings, this Court is of

the considered opinion that present petition deserves to be dismissed and

accordingly dismissed.

                                               ( JAGMOHAN BANSAL )
                                                      JUDGE
04.04.2024
Ali
                   Whether speaking/reasoned    Yes/No

                      Whether Reportable        Yes/No




                                5 of 5