Punjab-Haryana High Court
Kamikar Singh And Another vs State Of Punjab And Others on 19 November, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:150301-DB
CWP-27842-2018 AND CONNECTED CASES -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
Reserved on: 28.10.2024
Pronounced on: 19.11.2024
1. CWP-27842-2018
KAMIKAR SINGH AND ANOTHER .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
2. CWP-28488-2018
SARDUL SINGH AND ANOTHER .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
3. CWP-28499-2018
MANJIT SINGH AND ANOTHER .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
4. CWP-11888-2019
JOGINDER SINGH AND OTHERS .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
5. CWP-9339-2019
DAVINDER SINGH .....Petitioner
Versus
STATE OF PUNJAB AND ORS. ....Respondents
6. CWP-9391-2019
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SWARAN SINGH AND OTHERS .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
7. CWP-9462-2019
HARDWINDER SINGH .....Petitioner
Versus
STATE OF PUNJAB AND ORS. ....Respondents
8. CWP-15559-2019
MOHINDER SINGH AND ANR. .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
9. CWP-15910-2019
KASHMIRA SINGH AND ORS. .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
10. CWP-30034-2018
GURDIAL SINGH .....Petitioner
Versus
STATE OF PUNJAB AND ORS. ....Respondents
11. CWP-30464-2019
BUR SINGH AND ORS. .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
12. CWP-30027-2018
SAWARAN SINGH AND ANR. .....Petitioners
Versus
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STATE OF PUNJAB AND ORS. ....Respondents
13. CWP-21653-2018
SANTOKH SINGH AND ORS. .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
14. CWP-27997-2018
BALDEV SINGH AND ANR. .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
15. CWP-2027-2019
BALWINDER SINGH AND ANR. .....Petitioners
Versus
STATE OF PUNJAB AND ORS. ....Respondents
16. CWP-15939-2022
KARNAIL SINGH .....Petitioner
Versus
STATE OF PUNJAB AND ORS. ....Respondents
17. CWP-30063-2018
BALBIR SINGH .....Petitioner
Versus
STATE OF PUNJAB AND ORS. ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Dilpreet Singh Gandhi, Advocate
for the petitioners.
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Mr. Maninder Singh, Sr. DAG, Punjab.
****
SURESHWAR THAKUR, J.
1. All the writ petition(s) herein involve common questions of
facts and law, as such, they are liable to be decided through a common
verdict.
2. In the instant writ petition(s), a challenge is made to the
provison as occurs, after sub clause (iii) of clause (b) in Rule 8-B of the
Punjab Recruitment of Ex. Servicemen Rules, 1982 (hereinafter for
short called as the 1982 Rules). The provision (supra) became inserted
through an amendment being made in the said Rules vide notification
dated 10.04.2012.
3. For the sake of understanding the instant controversy, the
1982 Rules (un-amended), the amendment made theretos in the year
2009, besides the further theretos made amendments i.e. respectively in
the year 2012 and in the year 2018 are also extracted hereinafter.
(Punjab Recruitment of Ex. Servicemen Rules, 1982)
"8-A Increments and pension- Period of military service rendered
during the First National Emergency from 26th October, 1962 to 9th
January, 1968 shall count for increments and pension as under :-
(i) Increments - The period spend by a person on military service
(restricted to emergency period from 26th October, 1962 to 9th
January, 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 shall
count toward pension only in the case of appointments to permanent
services of posts, subject to the following conditions:-
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(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 count for pension in exceptional
cases under the orders of the Government.
This benefit shall be applicable to all those who were appointed in
Government services before or after 11th February, 1982."
[Punjab Recruitment of Ex. Servicemen (First Amendment) Rules, 2009]
"2. In the Punjab Recruitment of Ex. Servicemen Rules, 1982 after
Rule 8A, the following rule shall be inserted, namely:-
"8-B. Increments and pension- Period of Military Service rendered
during the second National Emergency from 3 rd December, 1971 to 25
th 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 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 ;
(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 from military
service and the date of appointment to any service of 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 under orders of the Government."
(Punjab Recruitment of Ex. Servicemen (First Amendment) Rules,
2012)
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"1. (1) These may be called the Punjab Recruitment of Ex.servicemen
(First Amendment) Rules, 2012.
(2) They shall be deemed to have come into force on and with effect
from the Ist day of December, 2011.
2. In the Punjab Recruitment of Ex. Servicemen Rules, 1982, in rule
8B:-
(i) In clause (a) in the second line, the words"joined and" shall be
omitted ; and
(ii) in clause (b), after sub-clause (iii) the following para shall be
added, namely:-
"These benefits shall be available to all the persons who were
appointed in Government service against reserved vacancies and
were in Service on Ist December, 2011 or are appointed thereafter;
Provided that these benefits shall be admissible for pay fixation on
notional basis with effect from 1 st January, 2012 and arrears on
account of pay shall not be paid."
(Punjab Recruitment of Ex. Servicemen (First Amendment) Rules,
2018)
"Notification
The 7th December, 2018
No. G.S.R 89/Const./Art.309, 234 and 318/Amd.(10)/2018.- In exercise
of the powers conferred by the proviso to article 309 read with articles
234 and 318 of the Constitution of India and all other powers enabling
him in this behalf, the Governor of India is pleased to make the
following rules further to amend the Punjab Recruitment of Ex-
servicemen Rules, 1982 namely:-
Rules
1. (1) These rules may be called the Punjab Recruitment of Ex-
servicemen (First Amendment) Rules, 2018.
(2) They shall come into force at once.
2. In the Punjab Recruitment of Ex-servicemen Rules, 1982, in rule 8-
B,-
(i) In clause (a), for the words and signs "The increments for the
aforesaid service shall be paid to those persons only, who joined and
rendered service during the aforementioned period.", the words,
figures, signs and brackets "The increments for the aforesaid Service,
shall be paid only to those persons, who were appointed in the Service
during the aforesaid period (i.e. from the 3rd December, 1971 to the
25th March, 1971)." shall be substituted; and
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(ii) In clause (b), for sub-clause (iii), the following sub clause shall be
substituted, namely:-
"(iii) 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 be counted for the said purpose in an exceptional
case, subject, however, to the prior approval of the Government:
Provided that the aforesaid benefits shall be admissible on
fixation of pay on notional basis on and with effect from the first day of
January, 2012, and no arrears, shall be payable consequent upon such
fixation of pay."
[Emphasis Supplied]
Submissions of the learned State counsel.
4. At the outset, the learned State counsel submits that the
challenge made to the aforesaid provision, as became inserted through
an amendment becoming made vide notification dated 10.04.2012,
rather becomes rendered infructuous, as through making of a further
amendment vide notification dated 07.12.2018, the above said
provision becomes omitted.
Submissions of the learned counsel for the petitioner(s).
5. However, the learned counsel for the petitioner(s) submit
that despite the afore provision being omitted, yet the respondents have
not granted any benefit to the petitioner(s) herein, inasmuch as, qua
computation of pension or qua granting of increments appertaining to
the period of theirs rendering military service, thus during the second
national emergency, rather either in terms of the old Rules or in terms of
the amended Rules, despite the same being granted to similarly situated
persons.
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6. The common claim of the petitioner(s) herein, is that, they
have rendered military service during the 2nd National Emergency and
therefore, they are entitled to the grant(s) of benefits provided under the
unamended Rules, thus, in terms of the judgment rendered by this Court
in CWP-17661-2013 titled as 'Rajinder Singh Vs. State of Punjab
and Others'.
Reasons for rejecting the submissions of the learned counsel for the
petitioners.
7. However, the instant writ claim founded upon the verdict
(supra) is a mis founded reliance thereons, thus inter alia on the
following grounds.
a) In the verdict (supra), the learned Division Bench of this
Court after analyzing the provisions relating to the endowment(s) of
the benefits of pension and of increments, as contemplated in the
Punjab Recruitment of Ex. Servicemen (First Amendment) Rules, 2009
(hereinafter for short called as the 2009 Rules) and in the Punjab
Recruitment of Ex. Servicemen (First Amendment) Rules, 2012
(hereinafter for short called as the 2012 Rules), thus recorded the
hereinafter conclusions.
The above quoted rules amended in the year 2012 show
that the amendment was applicable only to those ex-servicemen who
were in service of the government on December 12, 2011 or appointed
thereafter.
From the above quoted Rules, it is clear that so far as the
benefit of military service rendered during the Second National
Emergency towards increments is concerned, ex-servicemen who had
joined and rendered service during the period of Second National
Emergency were only held entitled to the same. So far as the benefit of
pension is concerned, it was inconsequential whether the ex-
servicemen had joined the military service during the Second National
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Emergency period or not. Thus, so far as the benefits of military service
towards increments is concerned, all the petitioners having joined the
military service prior to the Second National Emergency are held not
entitled to the same. The petitioners reliance on the notification dated
10.4.2012 (as reproduced above) for the grant of benefit of military
service towards increments is misplaced. A perusal of the notification
dated 10.4.2012 would show that the same is applicable only to those
ex-servicemen who are in the service of the Government as on
1.12.2011 or appointed thereafter. It is the admitted position that none
of the petitioners were in the service of the government as on 1.12.2011
as all of them had retired earlier. However, so far as the pension is
concerned, as there is no stipulation in the 2009 Rules that the benefit
of military service during the Second National Emergency towards
pension would be given only to those incumbents who joined the
military service during the Second National Emergency period, all the
petitioners would be entitled to the grant of military service benefit
towards pension."
b) Resultantly, in the operative part of the said verdict,
operative part whereof is extracted hereinafter, the claim raised by the
petitioner(s) thereins was accepted, thus only to the extent of
permissible endowment(s) being made to the petitioners vis-à-vis the
benefit(s) appertaining to rendition of military service, hence during the
Second National Emergency, but yet only towards pension. However,
they were declared to not become entitled to the grant of any
increments ensuing from rendition of military service during the
Second National Emergency.
Accordingly, the writ petitions are partly allowed to the
extent that the petitioners are held entitled to the grant of benefit of
military service rendered by them during the Second National
Emergency towards pension. However, they are held not entitled to the
grant of any benefit of their military service rendered during the
Second National Emergency towards increments.
8. Since the above verdict became unsuccessfully challenged
by the aggrieved therefrom before the Hon'ble Apex Court, therebys the
said verdict acquires binding and conclusive force, and, as such, the
writ claim founded on the verdict (supra) but is required to be rejected.
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Further Submissions on behalf of the learned counsel for the
petitioners.
9. That since the vires of the Punjab Recruitment of Ex.
Servicemen (First Amendment) Rules, 2012 neither became challenged
nor became decided. Consequently the counsel for the petitioner(s)
submit that therebys irrespective of conclusivity becoming acquired by
the verdict made by this Court in Rajinder Singh's case (supra), yet
on the premise (supra), he argues that the said challenge is yet open to
be made.
Reasons for declaring the retained portion of the Rules to be ultra
vires the Constitution of India.
10. Therefore, this Court proceeds to undertake the exercise of
determining the constitutional validity of the provision (supra). In the
said endeavour, it is relevant to allude to the fact that though the above
underlined provision became deleted vide notification dated 07.12.2018
but the deletion caused to the said underlined provision, rather was only
in part inasmuch as, only the statutory coinages ""These benefits shall
be available to all the persons who were appointed in Government
service against reserved vacancies and were in Service on Ist
December, 2011 or are appointed thereafter;" became deleted,
whereas, the other thereins statutory coinages "Provided that the
aforesaid benefits shall be admissible on fixation of pay on notional
basis on and with effect from the 1 st day of January, 2012 and no
arrears shall be payable consequent upon such fixation of pay" rather
remain undeleted and/or are still a part of the Rule regimen.
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11. Prima facie, the said retained part of the statutory phrases
(supra) in the Punjab Recruitment of Ex. Servicemen (First
Amendment) Rules, 2018 (hereinafter for short called as the 2018
Rules), but are plainly discriminatory and arbitrary, inasmuch as, they
create a sub class of pensioners rather within the same homogenous
class. The said inference ensues from the fact that despite in the un-
amended Rules (supra), contemplations occurring rather manifesting
that in terms of the said un-amended Rules, the rendition of military
service during the second national emergency, thus endowing vis-à-vis
the concerned, the right to claim the benefits of both pension as well as
increments. Therefore, if the said endowment(s) were made to those
who were then eligible, therebys, if post the makings of amendment to
the Rules (supra), wherebys through the retention of the statutory
phrases "Provided that the aforesaid benefits shall be admissible on
fixation of pay on notional basis on and with effect from the 1 st day
of January, 2012 and no arrears shall be payable consequent upon
such fixation of pay", in the Rule regimen, thus the pensionary benefits
as earlier under the supra un-amended Rules, became permitted to beget
effective potentialization, though to those soldiers, who evidently
rendered service during the Second National Emergency, rather
therebys to a similar class of soldiers, who also evidently rendered
service during the second national emergency, thus the pensionary
benefits remain un-potentialized, thus through no monetary arrears
thereof becoming computed rather only notional benefits becoming
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granted. In sequel, the apposite cut off date, thus visibly creates an
untenable sub class within the same homogeneous class of pensioners.
12. Furthermore, the eligible soldiers, who were endowed the
benefits under the un-amended Rules, as such, the present petitioner(s)
who are also appointees against civil posts, but post the retention of
supra coinages in the Rules (supra), though, reiteratedly were to be
treated at par with those appointees against civil posts, who became so
appointed rather prior to the retention of the said Rules in the Rule
book. Contrarily, they have been untenably dis-similarly treated. In
other words, though through the un-amended rules, the military
personnel who served during the Second National Emergency and who
were subsequently appointed to the civil posts besides whose
appointments occurred prior to the retention of the supra coinages in
the Rule book, thus become endowed the fullest benefits thereof.
Therefore, if to the appointees against civil posts after rendition of
military service during the Second National Emergency, thus the
benefits envisaged in the un-amended Rules, became fully bestowed to
them, whereas, the same benefits becoming snatched from the
appointees against civil posts, through the above phrase(s) becoming
retained in the Rule book, naturally therebys an arbitrary cut off date
becomes prescribed.
13. Resultantly, when otherwise the appointees, who were
governed by the un-amended Rules, thus become bestowed the benefits
in terms of the military service rendered during the second national
emergency, both qua increments and pension, whereas, if qua the
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concerned, who are now brought under the present governing regimen,
who but also constitute the same or homogenous class alongwith the
appointees' against civil posts, but prior to the prescription of the cut off
date in the retained Rule regimen, thus similar benefits are snatched
from them. In sequel, the said snatchings, thus through contra distinct
contemplations in the earlier un-amended rules and in the present rule
regimen, when thus yet become palpably done amongst/inter-se the
same or homogenous class of pensioners, merely through the now
created arbitrary cut off date, in the now retained provisions, therebys
they are for the hereafter reasons but arbitrary.
a) The said contra distinct contemplations as made vis-à-vis the
same set of persons or the same category of persons, is but naturally,
without an intelligible differentia nor does it have any nexus with the
object proposed to be achieved.
b) Contrarily, through the retention of the phrases i.e "Provided that
the aforesaid benefits shall be admissible on fixation of pay on
notional basis on and with effect from first day of January, 2012 and
no arrears shall be payable consequent upon such fixation of pay" as
earlier occur in the 2012 Rules and now in the 2018 Rules, rather the
recognition of the military valor of those who served during the second
national emergency rather has been arbitrarily snatched. As such,
therebys the impugned provision but per se smacks of arbitrariness
besides is antithetical to the concept of equality, as enshrined in Articles
14 and 16 of the Constitution of India.
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14. Therefore, the retained part of the provision (supra), both
in the 2012 Rules and now in the 2018 Rules, inasmuch as "Provided
that the aforesaid benefits shall be admissible on fixation of pay on
notional basis on and with effect from the first day of January, 2012
and no arrears shall be payable consequent upon such fixation of
pay', thus is declared to be ultra vires of the Constitution of India.
15. In aftermath, the writ petition(s) are allowed. Resultantly,
the retained part of the afore provision, as earlier exist in the 2012
Rules and now also exist in the 2018 Rules, is quashed and set aside.
16. The monetary arrears towards pension arising from the
computation of military service rendered during the Second National
Emergency, besides the further computation of further monetary
pension vis-a-vis only the eligible petitioner(s), thus, upon theirs
superannuating from the civil posts be forthwith released to them.
17. Be that as it may, the claim of the petitioner(s) herein, in
each of the writ petition(s) are required to be dealt with individually. In
the said regard, the reasons for either accepting or rejecting of the claim
of the petitioner(s), as given by the respondents, in each of the writ
petition(s), are extracted hereinafter.
Sr. CWP No. Name of the Reasons for either acceptance or rejection of
No. Petitioners the claim
1. CWP-27842- 1. Kamikar Singh Already drawing pension from Indian Army.
2. Karnail Singh
2. CWP-28488- 1. Sardul Singh Both the petitioners joined before the
2018 proclamation of Second National Emergency,
2. Lal Singh Gill
hence, the claim of the petitioners are not
covered under the notification dated
07.12.2018.
3. CWP-28499- 1. Manjit Singh No reply filed.
2. Amrik Singh
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4. CWP-11888- 1. Joginder Singh Petitioner No. 1 is drawing pension from the
2019 Indian Army.
2. Bakhtawar Singh
Petitioners No. 2 and 3 joined before the
3. Gurdev Singh
proclamation of Second National Emergency,
hence, the claim of the petitioners are not
covered under the Notification dated
07.12.2018.
5. CWP-9339- 1. Davinder Singh Petitioner is already drawing pension from the
2019 Indian Army.
6. CWP-9391- 1. Swaran Singh Both the petitioners joined before the
2019 proclamation of Second National Emergency,
2. Sarwan Singh
hence, the claim of the petitioners are not
covered under the Notification dated
07.12.2018.
7. CWP-9462- 1. Hardwinder Singh Drawing pension from his earlier service
2019 rendered in the Indian Navy.
8. CWP-15559- 1. Mohinder Singh Pay of both the petitioners has been re-fixed and
2019 further forwarded to the Office of Accountant
2. Jit Singh
General, Punjab for further final disposal. Hence
their case becomes infructuous.
9. CWP-15910- 1. Kashmira Singh Petitioners No. 1 and 3 retired from civil service
2019 before 01.12.2011, hence, the claim of the
2. Surjit Singh
petitioners were not covered for increments and
3. Rewal Singh pension as they already earned pension from
Army for Second National Emergency period.
Petitioner No. 2 retired from the civil service
after 01.12.2011, hence, the claim of petitioner
No. 2 was covered for increments only and not
for pension as he already earned pension from
Army for Second National Emergency period.
10. CWP-30034- 1. Gurdial Singh Petitioner was enrolled as temporary constable
2018 w.e.f. 16.10.1991 under the priority list
instruction as terrorist victim family. Petitioner
was not enlisted under Ex-serviceman quota.
11. CWP-30464- 1. Bur Singh Petitioner No. 1 was enrolled as Constable in
2019 Punjab Police, after the break of 3 years and 10
2. Amrik Singh
months and retired from Police Department on
3. Kashmir Singh 31.12.2005 i.e. prior to 01.12.2011, hence does
not fulfill the conditions of military service
4. Sukhcharan Singh benefits of 2nd National Emergency period.
Petitioner No. 2 was enrolled as Constable in
Punjab Police, after the break of 6 years on
23.06.1989 and retired from Police Department
on 30.06.2008 i.e. prior to 01.12.2011, hence
does not fulfill the conditions of military service
benefits of 2nd National Emergency period.
The pay of petitioners No. 3 and 4 has been re-
fixed, hence their case has been rendered
infructuous.
12. CWP-30027- 1. Sawaran Singh Both the petitioners were already drawing
2018 pension from the military authorities.
2. Gurdev Singh
13. CWP-21653- 27 petitioners The petitioners are not entitled for the said
2018 benefits.
14. CWP-27997- 1. Baldev Singh Both the petitioners are entitled to grant of
2018 benefit of military service rendered by them
2. Mohinder Singh
during the Second National Emergency towards
pension. Hence, the present writ petition is
rendered infructuous.
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15. CWP-2027- 1. Balwinder Singh Pay of petitioner No. 1 has been revised in lieu
2019 of military service rendered by him during the
2. Karnail Singh
second national emergency.
has been provided by the Office of SSP,
Kapurthala.
16. CWP-15939- 1. Karnail Singh No reply filed.
17. CWP-30063- 1. Balbir Singh Drawing pension for the military service
2018 rendered by him.
18. Evidently, the Rules (supra) state that the rendition of
military service during the Second National Emergency from
03.12.1971 to 25.03.1977, thus shall count for computation of
increments and for computation of pension. However, the supra
endowment(s) as made thereunder(s), especially towards pension is
made subject to the person concerned not earning pension under the
military rules in respect of the rendered military service. Therefore, for
the petitioner(s) becoming entitled for the endowment vis-a-vis them of
pension, as envisaged in the Rules (supra), but after the period of
military service rendered by them, during the national emergency
(supra) being also counted, therebys, they were required to adduce
evidence, that they in terms of the above extracted Sub Clause (i) of
clause (b) of Rule 8-B of the Rules (supra), rather had not earned
pension for the rendered military service, even if the said rendered
service became so rendered during the period of the Second National
Emergency.
19. Therefore, unless the validity or the vires of the said Rules
became successfully challenged, thereupon, the supra underlined
condition relating to endowment(s) of pensionary benefits, thus through
the counting of the rendered military service, during the Second
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National Emergency from 03.12.1971 to 25.03.1977, rather does
necessarily apply with the fullest effect qua the petitioner(s) concerned.
Resultantly if the present petitioner(s), had earned pension for their
rendered military service, thus covering even the phase of the Second
National Emergency. Therefore, unless they were not receiving pension
for the said rendered period of military service, therebys alone, they
became entitled for the said period of service becoming counted for
their earning pensionary benefits, upon, theirs becoming appointed
against a civil post besides obviously theirs superannuating therefroms.
20. In other words, if the petitioner(s) had become endowed
the benefits of pension for the said term of military service, therebys, as
expostulated in the supra underlined Rules, they became barred to claim
that the said period of service be counted towards the fixation of
pension thus for the subsequent term of their civil employment.
Moreover, the supra underlined Rules, thus sub serves a holistic
purpose, inasmuch as, it erases all the ill effects of the defence
personnel concerned becoming endowed with dual pensionary benefits,
inasmuch as, despite theirs receiving pension for the supra period,
theirs yet espousing that the period of service (supra) be again counted
for the purpose of computing pension for the term of their service
against a civil post.
21. Therefore, since in the writ petition(s) (supra), evidently
qua those petitioner(s) who were the recipients of pension(s) for the
previously rendered military service by them, which also covered the
phase (supra), therebys, they became dis-entitled to claim that the said
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period of service be re-counted for the fixation of their pension, upon,
their superannuating from the civil post.
22. The second reason for rejection of the claim of the
petitioner(s) by the respondents, as extracted above, is that, the
petitioner(s) who joined service before the proclamation of Second
National Emergency, therebys, they are in view of the notification dated
07.12.2018, thus not entitled to the grant of any benefit towards the
service rendered during the Second National Emergency.
23. However, the counsel for the petitioner(s) submit, that the
said benefit was denied not only qua the granting of benefit of
increments but even the pensionary benefits have been denied to the
petitioner(s), who joined military service, rather even before the
commencement of the Second National Emergency and who had also
served during the said period.
24. The counsel for the petitioner(s) further argues, that since
the rendition of military service during the Second National Emergency
even by the already serving soldiers, rather when prima facie, was the
conspicuous reason, for the supra endowment(s) being made, but since
endowment(s) towards increments or pension were yet made only to
those who joined military service during the Second National
Emergency, whereupons the (supra) endowment(s) become arbitrarily
snatched from those who were already then in military service.
Therefore, the counsel for the petitioner(s) argues, that therebys also an
irrational classification rather has been created, which has no nexus
with the object sought to be achieved. However, the above argument
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has no vigor as the said issue has been settled through a judgment
rendered by the Principal Division Bench of this Court in case titled as
Surjit Singh Vs. State of Punjab and Others, to which CWP-12533-
2017 became assigned. The relevant paragraph No. 19 of the said
verdict is extracted hereinafter.
19. In the case in hand, the State has decided to extend
benefit of military service to those persons who were
appointed during second emergency. The classification
seems to be reasonable. The persons, who had served
during first emergency as well as second emergency or
were appointed prior to declaration of second emergency,
had worked as a matter of their job responsibility whereas
persons who joined armed forces during period of
emergency declared on account of war, consciously
decided to serve the nation during tough time. They cannot
be treated at par with those persons who were already in
service. The respondent had granted benefit of service of
second emergency in 2009 which apparently indicates that
it was neither fundamental nor vested right of the
petitioners. There is no manifest arbitrariness or
unreasonableness in restricting benefit of second
emergency to those persons who were appointed during
the period of emergency. This Court does not find any
arbitrariness or unreasonableness in the action of
respondent warranting interference of this Court. Thus,
impugned Rule 8B is hereby declared valid.
25. The said paragraph, as occurs in the verdict (supra) relates
to denial of increments to those soldiers, who were in service prior to
the declaration of Second National Emergency, whereas, the benefit of
increments becoming endowed only to those personnel, who joined
military service during the Second National Emergency.
26. However, yet in the verdict rendered by a Division Bench
of this Court in Rajinder Singh's case (supra), which became upheld
by the Apex Court, whereins, in the relevant paragraph extracted above,
it has been expostulated that so far as the benefit of pension is
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concerned, it was inconsequential whether the ex-servicemen had
joined the military service during the Second National Emergency
period or not. Therefore, the claim of the petitioner(s) with regard to
grant of pension has to be decided in view of the expostulations made
in the verdict (supra).
27. The third reason for rejecting the claim of the petitioner(s)
concerned, is that, the petitioner(s) concerned, rather not fulfilling the
conditions spelt in clause (iii) of Rule 8-B of the Rules (supra),
provisions whereof are extracted hereinafter.
(iii) 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 be counted for the said purpose in an
exceptional case, subject, however, to the prior approval
of the Government :
28. In the provisions embodied in clause (iii) of the Rules
(supra), thus expostulations occur qua in the event of a soldier after his
discharge/superannuation from military service, becomes appointed to a
service or post under the Government, thereupon, only when the said
re-appointment is made upon a period of one year elapsing, since the
happening of the discharge of the soldier, thus the period of rendition of
military service, hence is to be counted towards endowing the benefits
of pension to the soldier, rather upon his superannuating from the civil
post concerned. Moreover, there is a further power in the Government
to, but only in exceptional circumstances, where a period of three years
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elapse since discharge of the soldier from military service, and his re-
appointment taking place, thus endow to the soldier, who has evidently
served during the Second National Emergency, the benefits/periods of
his military service rather becoming counted for the purpose of
increments or for purposes of pension.
29. However, the said provisions are required to be read down,
as they both are oppressive and arbitrary, inter alia, on the following
grounds :
a) They create an onerous burden upon the military
soldier, who evidently served during the Second National Emergency,
to ensure, that within one year from the date of his discharge and/or
within three years of his discharge, rather his ensuring his appointment
being made to any service or post in the Government, for therebys
making the relevant rendered military service during the Second
National Emergency, thus reckonable for the purpose of increments and
pension.
b) Even if assumingly some civil posts, did become
advertised before the supra elapsings taking place, especially in the
interregnum inter-se his discharge from military service and upto his
becoming appointed against a civil post, whereupon, with the present
petitioner(s) evidently not applying against the said post, thus the said
bar may have become attracted against them. However, yet there was a
requirement qua the existence of evidence on record, personifying that
despite the apposite advertisement of civil post(s) being made but
before the elapsings of one or three years from the date of discharge of
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the present petitioner(s) from military service, yet the present
petitioner(s) not applying for the said advertised posts.
c) If the said evidence does not surge forth nor
obviously is brought on record, therebys when in the supra phase rather
no civil posts became advertised, to enable the petitioner(s) to apply
thereagainsts, thus after their discharge from military service.
Consequently, when the advertisement of post(s) falling to the category
of the present petitioner(s), but was an imperative necessity rather
obviously for enabling the present petitioner(s) to apply thereagainst.
However, when for reasons (supra) no post(s), thus falling to the ex-
servicemen category, rather became advertised, before the elapsing of
either one or three years since the date of discharge of the present
petitioner(s) from military service.
30. In sequel, if yet it is pressed that the present petitioner(s)
are to be barred from receiving the benefit of their rendered military
service during the Second National Emergency, thereupon, it would
result in grave prejudice being heaped upon the present petitioner(s).
Moreover, therebys the Rule (supra) would work as an exacting
oppression, thus against the monetary interest of a soldier, who
evidently served during the Second National Emergency.
31. In the face of the above, the above extracted provisions
embodied in clause (iii) of the Rules (supra) are required to be read
down in the manner (supra) but favourably vis-a-vis the present
petitioner(s), thus given the piquant facts and circumstances at hand.
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32. In sequel, the writ petition(s) are disposed of but with a
direction to the respondents to decide the claim of the each of the writ
petitioner(s) herein through passing of a speaking order but in terms of
the observation(s) (supra) made by this Court.
33. The passing of the said orders shall be made within a
period of three weeks from today.
34. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
19.11.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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