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Judgment
Dr. Bharat Bhushan Parsoon, J.—The matter in dispute in these writ petitions pertains to giving of benefit of military service in terms of the
Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter referred to as, the Rules). Petitioners in both these petitions had
been serving the military forces. To be exact, petitioners Karan Singh and Sushil Kumar Sharma were in the Indian Army, whereas petitioner
Narain Parshad Sharma of the second petition was serving Indian Air Force before joining their employment with the respondents. Before having
been offered regular employment with the respondents, the petitioners had started their career with the respondents on temporary basis on their
selection after recommendations made by the Employment Exchange.
As issue involved in both the petitions is the same, these have been taken up together. Facts, however, have been taken from CWP No. 3773
of 1994.
The petitioners earlier to having been taken in the regular employment through selection made by Subordinate Service Selection Board, Haryana
in terms of advertisement dated 17.1.1972, had been serving the respondents on temporary basis, their selection having been made on
recommendations of the Employment Exchange. Earlier to their present employment, the petitioners were serving in the Indian Army from where
petitioner No. 1 was discharged on 15.6.1967 and petitioner No. 2 was relieved on 7.10.1968. Both the petitioners had been relieved on medical
grounds.
Hearing has been provided to counsel for the parties while going through the paper books.
There is no dispute that in terms of the Rules hitherto members of Indian Army, Indian Navy or Indian Air Force are eligible for the benefit of
military service. Rule 4 of the Rules provides for counting of military service in matters of increment, seniority and pension subject to rigours
provided in the Rules. Crucial question for determination pertains to operation of the Rules is as to whether benefit of such service is to be
extended to ad hoc employees?
Citing Devi Dayal v. State of Punjab 1995 (2) RSJ 580 (P&H), it is contended by counsel for the respondents that benefit of military service is
not admissible to an ad hoc employee in so far as his seniority is concerned. Counsel for the respondents has also urged that even instructions
dated 16.1.1990 of the respondents do not permit grant of benefits of military service for ad hoc employees.
Counsel for the petitioners, on the other hand, has argued that instructions of 16.1.1990 of the respondents cannot override the rules and such
benefit is to be available on the first appointment whether it is ad hoc, temporary or permanent.
For ready reference, relevant portion of Rule 4 of the Rules adopted by the State of Haryana, is reproduced as under:
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 Vol. II. This concession shall, however, be admissible only on first appointment.
(underlining has been added)
Last line of this Rule which has been underlined to add emphasis is of importance. In short, relevant consideration is as to what is to be
construed by the term ''first appointment''. In decision of State of Haryana and another v. Sube Singh in RSA No. 2759 of 2002 decided on
10.4.2008, this Court had affirmed the decision of the two courts below, where irrespective of nature of appointment whether permanent,
temporary or ad hoc, benefit of military service was given to the appellant in the said case, from the date of his first appointment after his discharge
from military service. In appeal preferred by the State of Haryana and another, placing reliance on instructions of 16.1.1990 referred to as ""Ex. D-
3 in the proceedings before the courts below, this Court had rejected the claim of the appellants and had not allowed instructions to override the
statutory rules. Relevant observations made by the Court in this authority are contained in para 10, which for ready reference are reproduced as
under:
So far as the questions of law that has been raised by the learned counsel for the appellants are concerned, these have been aptly answered by
both the courts below to the effect that the instructions Ex. D3 cannot over ride the statutory rules which was enacted at the time of emergency
period. This also find support from the law laid down by Hon''ble Apex Court in the case of Punjab Water Supply and Sewerage Board,
Hoshiarpur Vs. Ranjodh Singh and Others, and by a Division Bench of this Court in the case of Chhalinder Singh v. State of Punjab & others
2005 (3) RSJ 733. Therefore, the argument of the counsel for the appellants is totally misplaced that the benefit of military service for benefit of
increments has to be considered from the regular date of appointment as per Ex. D3.
In line with this judgment, yet another judgment of this Court is Tej Ram v. State of Haryana 2011 (2) S.C.T. 543. Relevant findings of the
Court in this context are reproduced as below:
A person who has been appointed on Ad-hoc basis is also under the service of the Government. Even otherwise there is no dispute to the fact that
the service of the petitioner has been regularised.
XXX
When Rule 4(i) of the Punjab Government National Emergency (Concessions) Rules 1965, does not contemplate either regularised service or
permanent service, the petitioner, who has been in the government service long prior to the amendment introduced to the definition military service
cannot be deprived of the benefits accrued to him.
It is thus held that military service in terms of the Rules would be counted from the date of first appointment after discharge from military
service irrespective of the fact as to whether such appointment is on ad hoc basis, temporary or permanent basis.
Though benefit of military service was given by the respondents to a similarly placed official named Bani Singh Yadav and parity was sought to
be drawn by the petitioners with his case, stand of the respondents is that since it was an error, it need not be repeated. Citing State of Orissa and
Another Vs. Mamata Mohanty, , it is claimed that benefit inadvertently given is not to be and cited as an example to be followed.
It may be noticed that grant of such benefit to Bani Singh Yadav similarly situated with the petitioners was challenged in CWP No. 4271 of
1982 but the said writ petition was dismissed on 9.9.2010 holding the same as infructuous as the petitioners including Bani Singh Yadav had
retired from service.
Since grant of benefit of military service has been found to be proper from the date of first appointment after discharge from military service,
nature of such employment being temporary, permanent or ad hoc becomes meaningless and consequently, case of Bani Singh Yadav loses any
demonstrative effect to draw a parity therefrom.
As a result, the petitioners are held entitled to the benefit of military service from the date of their first appointment with the respondent- State
after discharge from their military service. The consequential benefits are also to follow.
All the monetary benefits due to the petitioners are to be disbursed to them within a period of two months from the date of receipt of certified
copy of this judgment alongwith interest @ 9% per annum. In case compliance is not made within the stipulated period of two months, the amount
would carry interest @ 12% per annum from the date of expiry of that period till the date of actual payment. The writ petitions are allowed in the
above terms.