Datar Singh vs State of Punjab and Others

V.S. Aggarwal, J.—By this common judgment we propose to dispose of the Civil Writ Petitions Nos. 16779 of 1989, 931 of 1990, 12092 of 1990, 6690, 12034, 15193, 17095 of 1991, 2 of 1992 and 9154, 9157 of 1995. As the question involved in all these writ petitions is identical, by this common judgment these writ petitions can conveniently be disposed of. For the sake of convenience, facts in the case of Datar Singh are being mentioned.

Petitioner Datar Singh seeks quashing of the Rules called Punjab Recruitment of Ex-servicemen Rules, 1982, whereby Punjab Government National Emergency (Concession) Rules, 1965, had been repealed and the benefit of increment, seniority for the service rendered during emergency which the petitioner was entitled by virtue of Punjab Government National Emergency (Concession) Rules, 1965 and during the emergency of 1971 have been withdrawn. A writ of mandamus has also been claimed with a direction to the respondents to grant the benefits of Military service rendered by the petitioner during the emergency period from 10.6.1963 to 10.1.1968 and 3.12.1971 to 21.7.1971.

Petitioner Datar Singh had joined the military service on 10.8.1961. He was discharged on 5.4.1986. He joined service in the State of Punjab as J.B.T. Teacher on 4.3.1988. At this stage, it may be mentioned that all other petitioners had also joined different military service including the air force during the emergency period from 10.8.1963 to 10.1.1968 and from 3.12.1971 to 23.7.1971. They were discharged from the military service but joined the different services under the State of Punjab after the coming into force of Punjab Recruitment of Ex-servicemen Rules, 1982.

It has been contended that in the wake of Chinese aggression, National Emergency was proclaimed on 26.10.1962. In order to attract large number of young men who otherwise were not inclined to adopt the profession Soldier as a career, the State of Punjab announced a number of concessions for Ex-servicemen and Civilian employees. Certain benefits were allowed which included relaxation in the age limit and educational qualification. It also included counting of the period of approved military service towards seniority, promotion, increment, leave and concession. Induced by various concessions, the petitioner offered himself for military service. He joined the Indian Army on 10.8.1961. He served the Indian Army for 23 years i.e. during the period of both emergencies referred to above. The petitioner claims that since he served in the army during both the emergencies, the said period should be counted towards increment and seniority on being re-employed in government service after being released from the army service. He joined as J.B.T. teacher in the education department of the Stale of Punjab on 4.3.1988 against the post reserved for ex-servicemen. Since his representation had been rejected and he had not been given the benefit of service during emergency in seniority and other benefits, the present writ petition has been filed.

In the reply filed, the writ petition has been contested. There was no controversy pertaining to the fact that the petitioner served the Indian Army w.e.f. 10.8.1963 to 5.4.1986 and had retired from that service after getting all the pensionary benefits. The Punjab Government National Emergency Concession) Rules, 1965 were repealed into the Punjab Recruitment of Ex-serviceman Rules, 1982. In view of the Rules, the petitioner is not entitled to any benefit because he joined the service under the Punjab Government in 1989.

When the matter was listed before the learned Single Judge of this Court on 3.1.1994 it was felt that a large number of writ petitions involving said controversy are pending and that it should be decided by a Larger Bench. It is in the face of said reference that the matter was listed before us.

The learned counsel for the petitioner urged two questions (1) whether a right vests with the petitioner on joining the Indian Army in the wake of proclamation of emergency and by the dint of Rules, 1982 could be amended and taken away by repealing the Rules of 1965, and (2) whether there is any rationale in treating those who joined civil service before 12,2.1982 (when Rules of 1982 were proclaimed) and those who joined later differently.

Before proceeding further, reference to the relevant Rules can conveniently be made. The Punjab Government National Emergency (Concession) Rules, 1965 (for short ''Rules of 1965'') were notified on 30.7.1965. Rule 2 defines ''military service'' as under :-

"2. Definition:- For the purposes of these rules, the expression ''military service'' means enrolled or commissioned service in any of the three wings of the Indian Armed Forces (including service as a warrant officer) rendered by a person during the period of Operation of the Proclamation of Emergency made by the President under Article 352 of the Constitution on the 26th October, 1962 or such other service as may hereafter be declared as military service for the purposes of these rules. Any period of military training followed by military service shall also be reckoned as military service."

Rule 4 provides for the grant of benefit regarding increments, seniority and pension, which reads as under :-

"4. 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, 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 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:-

(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.

On 12.2.1982 the Punjab Recruitment of Ex-servicemen Rules, 1982 (for short ''Rules of 1982'') came into being. Herein under Rule 2(a) "Armed Forces of the Union" were explained to be Navy Military and Air Forces of the Union of India. The definition of "the Ex-serviceman" was explained under Rule 2(c) to mean a person who has served in any rank (whether as a combatant or as a non-combatant) in the armed forces of the Union including the armed forces of foreigner Indian States but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Corps, Lok Sahayak Sena and the Territorial Army for a continuous period of not less than six months and has been released or discharged otherwise than at his own request or by way of dismissal or discharged on account of misconduct or inefficiency or has been transferred to the reserve pending his release or has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid; or has been released at his own request after completing five years service of the Union. Rule 4 provided for reservation of 15% of vacancies to be filled by directed recruitment of Ex-serviceman. Rules 7 and 8 are not relevant for the present controversy. Rules 9 and 10 reads as under :-

"9. General (1) In matters not specifically provided for in these rules, a person appointed against a reserved vacancy, shall be governed by the concerned service rules.

(2) All concerned service rules shall be subject to the provision of these rules and the said rules shall be construed accordingly.

(3) Nothing to these rules shall be construed as depriving any person to whom these rules apply of any right which had accrued to him under the rules, notifications or orders in force immediately before the commencement of these rules.

Repeal:- The following rules are hereby repealed:-

The Punjab Government National Emergency (concession) Rules, 1965;

The Demobilised Armed Forces Personnel (Reservation of Vacancies in the Punjab State non-technical Services) Rules, 1968;

The Demobilised Indian Armed Force Personnel (Reservation of Vacancies in the Punjab Civil Services) (Executive Branch) Rules, 1972; and

The Released Indian Armed Forces Personnel (Determination of Eligibility for Promotion) Rules, 1977".

On the strength of Rule 9(3) of the Rules of 1982, the representation of the petitioner has been rejected. Learned counsel for the petitioner, as pointed out above urged that when the petitioner joined the army service he was hopeful of getting the benefit of service. Rules of 1982 could not take the right that has accrued to him. In support of his claim, reference was made to a number of precedents which can conveniently be listed hereinafter.

Our attention was drawn to a Division bench decision of this Court in the case of Narinder Nath Sharma v. State of Punjab and Anr. 1992(7) S.L.R. 345. In the cited case, petitioner Narinder Nath Sharma, joined as Airman in the Indian Air Force on 12.6.1965. He served the Indian Air Force till 12.6.1974. On 12.8.1974, he was discharged from the service due to disability. Thereafter, petitioner was in civil employment in the State of Punjab as Sub Inspector, Food and Supplies, on 13.5.1975. The court held that he was entitled to the benefit of military service rendered during the first emergency and the second emergency towards seniority, promotion and pension etc. It is obvious from the facts of the cited case that they have no parity with the question before us. He got the benefit because of Rules of 1965, when the petitioner in that case joined civil service, Rules of 1982 had not come into being. The cited case, therefore, clearly confined to its peculiar facts.

The Supreme Court in the case of A.S. Parmar (Ex-Capt.) and Ors. v. State of Haryana and Ors. 1986(2) S.L.R. 741, was concerned with the Rules of 1965. There was an amendment in Rules of 1965. Certain benefits which were given to persons who had volunteered for military service during the emergency had been withdrawn. It was held that the military service rendered subsequent to the lifting of the emergency cannot be taken into account for the purposes of reckoning seniority in the civil post. The findings arrived at by the Supreme Court reads as under:-

".... Though no doubt, as urged by Shri Shanti Bhushan, the judgment appears to proceed as if the change was brought about in 1976 even in regard to the length of military service to be taken into account, that question was not actually decided. On the other hand, in Ex. Capt. Randhir Singh Dhull Vs. Shri S.D. Bhambri and others, referring to Rule 2, it was expressly-stated by this Court that the concession in regard to seniority was admissible in respect of military service rendered during the operation of emergency only and not for any military service after the termination of the emergency. Shri Shanti Bhushan invited our attention to a circular of the Government in which it was said that the period of approved military service will count for increments, seniority and pension in the civil employment. But para 4 of that very circular makes it clear that the concessions will apply in the case of all persons, who have joined or join military service during the emergency and will be in respect of approved military service rendered during the emergency and for such period thereafter as the government may prescribe. It is therefore, clear that military service rendered subsequent to the lifting of emergency cannot be taken into account for the purpose of reckoning the seniority in the civil post. We, therefore, review our order dated July 29, 1985 and direct that credit will be for the military service rendered upto the date of lifting of emergency only and not the entire military service."

Even the cited case is confined to the question of taking away certain benefits by virtue of the amendment of Rules 1965. It is not concerned with the present Rules of 1982.

Similarly, in the case of Jamiet Singh v. The District and Sessions Judge, Amritsar 1995(2) S.L.R. 313, another Division Bench of this Court was concerned with the controversy confined to Rule of 1965 and held that a person who joined a civil post in the State of Punjab is entitled to the benefit of military service rendered by him during the proclamation of emergency even if he entered to military service prior to the" declaration of the emergency. This is not to controversy before us and, therefore, any further examination pertaining to the cited controversy is not required.

The contention of the petitioner that he got a vested right to get the advantage of Rules of 1965 when he joined military service is totally devoid of any merit. At that time, there was no assurance that he on being discharged would be taken in civil service. The right to get benefit of seniority, pension etc. is contingent upon the appointment to the post of civil service under the State. Every person who is released from the armed forces does not get an automatic right. Therefore, on the face of it, said argument is devoid of any merit. In the case of Bhagel Singh Vs. Swaran Singh and others, , the Supreme Court has considered the said question. It was held that the moment a candidate makes an application for the post he does not acquire a vested right for selection. The findings arrived at are as under:-

".....Lest there be any confusion we would like to make it clear that a candidate on making application (or a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the rules as they exited on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended Rules are retrospective in nature."

The observations of the Supreme court, indeed, negative the argument advanced by the learned counsel for the petitioner. Our attention was drawn to the Full Bench decision of this court in the case of Jang Singh and Ors. v. State of Punjab and Ors. 1997(3) RSj 464. The Full bench considered the scope of Sub-rule (3) of Rule 9 of Rules of 1982 and observed that when the Rules of 1982 repealed the earlier Rules of 1965, all those who joined the service after 12.2.1982 would be governed by the Rules of 1982. The observations made by the Full Bench are as under:-

".....All these rules stood repealed by common enactment of the rules framed by the State of Punjab in the year 1982. Thus, with effect from 1982 such persons would be governed by the Rules of 1982, but prior thereto the members of the force would be entitled to the benefit in accordance with the rules in force at that time and the law laid down by the court. The Government of Punjab exercising the powers conferred by the provisions of Article 309 read with Articles 234 and 318 framed the rules called the Punjab Recruitment of Ex-serviceman Rules, 1982. These rules repealed all the four rules i.e. The Punjab Government National Emergency (Concession) Rules, 1965. The Demobilised Armed Forces Personnel (Reservation of Vacancies in the Punjab State Non-technical Service) Rules, 1968. The Demobilised Indian Armed Forces Personnel (Reservation of Vacancies in the Punjab civil Services) (Executive branch), Rules, 1972; and The Released Indian Armed Forces Personnel (Determination of Eligibility for Promotion) Rules, 1977. But while repealing, the legislature has taken care to protect the rights which had accrued to them under the previous rules. Rule 9(3) of the Punjab Recruitment Ex-serviceman Rules, 1983 reads as under:-

"9(3)- Nothing in these rules shall be construed as depriving any person to whom these rules apply or any right which had accrued to him under the rules, notifications, or orders in force immediately before the commencement of these rules."

Even the said findings do not came to the rescue of the petitioner, instead, they negative his claim. A learned Single Judge of this court in the case of Inderjit Kaushik and Ors. v. State of Punjab and Ors. 1994(3) S.L.R. 81, had considered the said question. In paragraph 12 and 13 of the judgment, the court negatived a similar claim of Inderjit Kaushik and others and held as under:-

"12. In the present case, the petitioner had no vested right to claim benefit of military service in the matter of pay or seniority before their appointment to a post. The right, if at all any; would have accrued or matured only on their appointment to a post/service. Till the petitioners were appointed to a service, no right could be said to have accrued to them. As already observed, it was a contingent right which had to remain inchoate till the actual appointment had been made. And before the right could have actually matured, the rules conferring the right had been repealed. The right became non-existent. 13. The question arises as to what was actually saved by Rule 9(3)? The answer is simple. The Rule saved the right of an Ex-serviceman who had rendered military service during the period ''the proclamation of Emergency made by the President on October 26, 1962 was in force" and had been appointed to a post or service under the State prior to October 12,1982. Even if the Government had passed no order giving him the benefits admissible under Rule 4, the right to get those benefits had matured and was protected by Rule 9(3)."

We find ourselves in full agreement with the said view. This is because of the reason that as noted above, there was no vested right that the petitioner have to be taken in the civil service when he joined the armed forced. He had no vested right thus to claim seniority and other benefits of Rules of 1965 because he joined civil service after coming into force of Rules of 1982. He was fully aware of the said Rules of 1982 when he joined the civil post after 1982. It is only on his appointment to a civil post under the State that he could claim any right of seniority, pension or increment and not earlier to that. For that purpose, he is governed by the Rules of 1982. Therefore, the claim that a vested right has been taken away by repealing of Rules of 1965 in the case of petitioner is devoid of any merit.

As regards the plea that the Rules are discriminatory between those who joined civil service before and after 12.2.1982, the contention has simply to be stated to be rejected. All those who joined civil service after 12.2.1982 could be a class apart. There is no specific benefit to any person who is similarly placed. Therefore, the question of discrimination does not arise. The Rules by virtue of which certain benefits of seniority, increment and pension were withdrawn were applicable to all who joined service after 12.2.1982. The persons who joined earlier, they cannot be similarly placed. Thus, there is no discrimination. In fact, in case of Dhan Singh and Ors. v. State of Haryana and Ors. 1991(1) S.L.R. 200, the Supreme Court while construing the Rules of 1965 held that the State was competent to withdraw the concession. In paragraph 10 of the judgment, it was concluded as under :-

" We do not agree. The State could amend the 1965 Rules and withdraw the concession in exercise of the power conferred under Article 309 of the Constitution. It is open to the State to lay down any rule for determining seniority in service and the court cannot interfere unless it results in inequlity of opportunity among the employees belonging to the same class. When a rule is challenged as denying equal protection, the question for determination by the Court is not whether it has resulted in" inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation or inequality of protection does not per se amount to discrimination within the inhibition of equal protection clause under Article 14. To attract the attention of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the legislature has in view. The court has to examine whether the classification can be deemed to rest upon differentia discriminating the persons or things grouped from those left out and whether such differential has a reasonable relation to the objects sought to be achieved irrespective of whether the rules intended to apply to person or thing or to a certain class of persons or things. Therefore, the policy or the object of the legislation are relevant consideration."

The answer is provided by the observations made above and also by the reasons already recorded, we have no hesitation in holding that Rule 9(3) of the Rules of 1982 cannot be held to be discriminatory.

For these reason, the writ petitions being without merit must fail and are ordered to be dismissed.