Bharpur Singh vs State of Punjab and Others

G.R. Majithia, J.—In this petition, the Petitioner has impugned the orders dated November 17, 1986 and December 30, 1985 passed by Respondent No. 2 to decline him the benefit of military service towards seniority.

Facts first:

The Petitioner joined the Armed Forces on November 24,1962 as Gunner and was discharged from service on April 15, 1999 on compassionate grounds. He was selected for appointment as a clerk by the Subordinate Service Selection Board Punjab in the Sub office Cadre on purely temporary basis. Under the orders of Respondent No. 2, he joined the office of Assistant Soil Conservative Officer, Samrala. On a representation submitted by him, he was granted benefit of increments for 5 years 1 month and 8 days in lieu of the military service rendered by him in the Armed Forces. Respondent No. 2,--vide letter No. 27585-86, dated July 12,1976 addressed to Conservative of Soils, North Circle, Jalandhar and Conservative of Soils, South Circle, Ferozepur directed them to forward applications alongwith service record of those employees who fulfiled the prescribed qualification mentioned therein and who were willing to be appointed against two posts of clerks in the head office cadre. The Petitioner was selected against the post reserved for Ex-Serviceman and he joined in the Head Office on December 2, 1976. He made a representation for giving him the benefit of seniority in the Head Office Cadre which was declined.

The impugned orders do not contain reasons for declining the benefit of military service to the Petitioner. Respondent No. 2 in the written statement took a categorical stand that benefit of military service towards increments and seniority could only be given to the Petitioner on his first appointment. Since his first appointment was in the Sub Office Cadre, so the benefit of seniority for the period of military service could only be given to him in the Sub Office Cadre from where he had already taken the benefit of increments. The plea taken by the Petitioner that he was only given benefit of increments for 5 years 1 month and 8 days of military service rendered by him in the Armed Forces was not denied. It was also not denied that the benefit of seniority was not given to him in the sub office although his case for grant of such benefit was pending consideration.

The issue turns on the true interpretation of Rule 4(ii) of the Punjab Government National Emergency (Concession) Rules. 1985 and it is, therefore, necessary to read whole of the Rule:

Increments, seniority and pension--Period of military service shall count for increments, seniority, and 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 and 1C and 3.11 of the Punjab Civil Services Rules Vol. II. This concession shall, however, be admissible only on first appointment.

(ii) Seniority : The period of military service mentoined in Clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service, provided that a person who has availed of concessions under Sub-rule (3) of Rule 3, shall not be entitled to the concession under this clause (Letter No. 2259-2FS-II-76/7273, dated 22nd March, 1976).

(iii) Pension : The period of 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:

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

(b) Any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the State Government;

(c) The period, if any, between the date of discharge from military service and the date of appointment to any-senior 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 be counted for pension in exceptional cases under the orders of the Government.

Sub-rules (i), (ii) and (iii) of Rule 4 of the Rules are mutually exclusive and are to be read and interpreted independently. Each of the sub-rule deals with a separate situation in the career of a public servant, namely, the issues of increment, seniority and after retirement, his pension. Where the benefit of military service is confined to only on first appointment, it is so specifically stated. Limitation with regard to first appointment was confined to increments in Sub-rule (i) alone. No such restriction was placed in Sub-rule (11). If the benefit of added seniority in the public employment is not allowed in the subsequent service, the benefit flowing from Sub-rule (ii) of Rule 4 of the Rules will be rendered illusory. The benefit of military service under Rule 4(ii) of the Rules is available to the Ex-serviceman on his second or subsequent appointment in an altogether different public service. This view finds support from Raj Kumar Verma v. The State of Haryana and Ors. 1979 (3) S.L.R. 719, where it was held thus:

Now the significant argument on behalf of the Petitioner is that Sub-rules (i), (ii) and (iii), of Rule 4 aforesaid are mutually exclusive and are to be read and interpreted independently. It has been rightly contended that each of these sub-rules deals with a separate situation in the career of a public servant, namely, the issues on increment, seniority and after retirement, his pension. It was plausibly submitted that there was no warrant to read the provisions of one sub-rule into that of the other. Therefore, reading Rule 4(ii) independently there is not even the remotest inkling either expressly or by necessary intedness that the benefit of military service with regard to seniority is to be circumscribed to the first appointment only.

The Petitioner is entitled to the benefits of military service towards seniority in his second appointment as clerk in the Head Office Cadre.

For the reasons aforesaid, the writ petition is allowed and the impugned orders dated November 17, 1986 and December 30, 1986 are quashed. Respondent No. 2 is directed to grant the benefit of military service towards seniority to the Petitioner within three months from the date of receipt of the copy of this order. No order as to costs.