Bhajan Singh vs Union of India and Others

Tejinder Singh Dhindsa, J.—Challenge in the instant writ petition is to the order dated 27.12.2002 (Annexure P-12), whereby the claim of the petitioner seeking the benefit of military service for purposes of annual increments and pension, has been rejected. Facts in brief and which are not in dispute would require notice. Petitioner served in the Corps of Signals in the Indian Army from 13.1.1965 to 27.4.1970. The First National Emergency was declared on 26.10.1962 and remained in force up to 10.1.1968. Having served in the Army, the petitioner joined the Police Department on 12.7.1971 i.e. after a gap of 1 year and 3 months. Petitioner retired from the Police Department on 31.12.2001 upon attaining the age of superannuation. Post retirement the petitioner submitted a number of representations raising a claim for counting of his military service towards qualifying service for grant of pension. It is such claim that has been rejected in the light of impugned order dated 27.12.2002 (Annexure P-12).

Upon notice of motion having been issued, a joint reply has been filed on behalf of respondents No. 2 to 4. The stand taken on behalf of the State is that the claim of the petitioner had been duly forwarded to the D.G.P., Punjab and in turn the matter was referred to the Govt. of Punjab, Department of Home Affairs & Justice for condonation of the gap period of over one year i.e. between military service rendered by the petitioner and joining the Punjab Police. Rejection of the claim of the petitioner for counting of his military service for grant of pensionary benefits has been justified in the light of Rule 4 of the National Emergency (Concession) Rules, 1965 (herein after to be referred as 1965 Rules) stating that the period between date of discharge from military service and date of appointment to any service or post under the govt. is to count for pension provided such period does not exceed one year and any period exceeding one year but not exceeding three years may also be allowed to count for pension in exceptional cases. It has been contended on behalf of the State that there were no exceptional circumstances in the case of the petitioner and since the period between the date of discharge from military service and date of appointment of the petitioner in the Punjab Police exceeded the period of one year, as such, his military service cannot count towards qualifying service for grant of pensionary benefits.

Learned counsel for the parties have been heard.

Claim of the petitioner would require examination in the light of the relevant statutory rule i.e. Rule 4 of the 1965 Rules and the same reads as under:--

Increments, seniority and pension- Period of Military service shall count for increment, seniority & pension as under:--

(i) Increments- The period spent by a person on Military Service 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) Seniority- The period of Military Service mentioned in clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered Military Service.

(iii) Pension- The period Military Service mentioned in clause (i) shall count towards pension only in the case of appointments to permanent services or posts under the Government 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 count for pension in exceptional cases under the order of the Government.

A reading of the relevant rule would make it apparent that the military service rendered by the petitioner for the period 13.1.1965 to 27.4.1970 has to clearly count towards qualifying service for the grant of pensionary benefits. Rule 4(3) of the rules only covers the field in relation to the gap between the discharge from military service and joining of the civil service. Such provision would regulate the grant of pension even for such gap period between the two services. In other words, if, such gap was not to exceed a period of one year, it would also count towards qualifying service and in certain exceptional circumstances, even a gap of three years is admissible towards qualifying service. However, the petitioner is not seeking any condonation and is not claiming any benefit towards qualifying service for such gap period. Rule 4(3) does not contemplate that the military service rendered prior to joining civil service is to be ignored for grant of pensionary benefits, if, the gap between the two services is in excess of one year. The same view has also been taken by a Coordinate Bench of this Court in case of Marman Devi v. State of Haryana & another in CWP No. 13994 of 2008 and decided on 4.8.2009 and it was held as follows:--

A Single Bench of this Court has followed the above dicta of law as laid down by the Division Bench of this Court while deciding Civil Writ Petition No. 18129 of 2006 (Mohinder Singh and another v. State of Haryana and others). Even the reading of Rule 4(3) of the Rules, would not give any indication that military service is not to be counted for the purpose of pension, when the gap between the discharge from military service and joining of the civil service is more than one year. The provision seems to be for regulating the grant of pension even for the period if there be a gap between the two services and not that the earlier service rendered in the military would be ignored for the purpose of pension if the gap is more than one year between the two services. This justification, if advanced, is not supported by the contents of Rule 4(3) as referred to above. The petitioner, thus, has made out a case for counting the service rendered by her late husband in the military with the civil service rendered by her deceased husband.

The impugned order rejecting the claim of the petitioner for grant of pensionary benefits by taking into account his military service rendered, proceeds on a clear misreading of Rule 4(3) of the 1965 Rules. For the reasons recorded above, the present writ petition is allowed. Impugned order of rejection dated 27.12.2002 (Annexure P-12) is quashed. Directions are issued to the respondents to calculate the service rendered by the petitioner in the civil as well as in the military for computation of pensionary benefits. Such exercise be completed within a period of two months from the date, of receipt of a certified copy of this order. The amount so calculated shall also be released to the petitioner within this period, failing which the petitioner shall also be entitled to interest @ 6% per annum from the date it is due to the actual date of payment.

Petition allowed in aforesaid terms