Kewal Krishan vs The Managing Director, Punjab State Warehousing Corporation

M.M. Kumar, J.—This petition filed under Article 226 of the Constitution of India seeks a writ in the nature of mandamus for grant of benefit of military service to the petitioner under Rule 5 of the Demobilised Indian Armed Forces Personnel Reservation of Vacancies in the Punjab State (Non Technical Service) Rules, 1968 (for brevity 1968 Rules). Further prayer is also made to grant other consequential benefits.

The petitioner was appointed in the Indian Air Force on 1.1.1966 and was released on 31.1.1975 on completion of 9 years of regular service. The reasons for his release as recorded in the Certificate of Discharge, dated 6.1.1975 (Annexure R.1) is on completion of regular service. The petitioner thereafter joined on the post of Ware House Manager (Grade II) on 19.5.1977. He claimed the benefit of service rendered in the Indian Air Force and vide order dated 1.10.1986 (Annexure P.3) he was given the benefit of two years service for the period from 13.1.1966 to 10.1.1968 under the Punjab Government National Emergency Concession Rules, 1965 (for brevity the 1965 Rules). However, the petitioner dissatisfied with grant of two years military service benefit filed the present petition claiming that he is entitled to be given the benefit under Rule 5 of the 1968 Rules in as much as he should be deem,ed to have joined as Ware House Manager (Grade II) on the first available opportunity after he joined the Indian Air Force.

In the written statement filed by the respondent, the stand taken is that the case of the petitioner is not coed by the definition of expression Released Armed Forced Personnel as given in Rule 2(d) of the 1968 Rules because according to the respondent, petitioner cannot be deemed to be Demobilised Released Armed Forces Personnel as he was released on completion of regular service. According to the written statement, the case of the petitioner was covered by ''1965 Rules'' and accordingly the benefit of two years service has been given and his date of joining was ante dated from 19.5.1977 to 25.5.1975.

I have heard Shri B.S. Sehgal, learned counsel for the petitioner who has argued that it would not make any difference whether the petitioner has been released on completion of regular service or otherwise. According to the learned counsel the benefit of 1968 Rules have to be granted considering the petitioner as Demobilised Armed Forces Personnel within the meaning of Rule 2(d) of the 1968 Rules. The learned counsel has further argued that a post was available as is evident from the order Annexure P.4 in the year 1972 which has been given to Mr. G.S. Paul. Therefore, he would be entitled to be given the deemed date of joining of atleast 10.8.1972 on a date when the post was given to Shri G.S. Paul.

Shri Virinder Pal Singh, learned counsel for the respondent has submitted that the case of the petitioner is not covered by Rule 2(d) of the 1968 Rules and therefore the benefit under Rule 5 would not flow to the petitioner. In support of his submission, the learned counsel has placed reliance on a Division bench judgment of this Court in the case of Inderjit Kaushik v. Punjab Public Service Commission 1982(2) SLR 617 and argued that the Division Bench has clearly specified the difference between a ''Demobilise Armed Personal'' and those who have been ''released on completion of service''. The learned counsel has quoted paras 7, 8 and 9 of the judgment to substantiate his submission that it is only those who have been demobilised at the end of emergency i.e. 10.1.1968 when the declaration of emergency was withdrawn who would be entitled to the benefit of 1968 Rules. According to the learned counsel, the petitioner was released on completion of service on 31.1.1975. Therefore, it cannot be said that he was demobilised on account of lifting of emergency or on the return of normalcy.

After hearing the learned counsel and perusing the record, I am of the considered view that the instant petition is liable to be dismissed because the controversy raised is squarely covered by the Division Bench judgment in Inderjit Kaushik''s case (supra). The Division bench has examined in detail the provisions of the 1968 Rules alongwith the Air Force Act, 1950 and Air Force Rules, 1969 to reach the conclusion that ''Demobilised Armed Forces Personnel'' would alone be entitled to the benefit of 1968 Rules and these benefits would not be available to those who have been released on completion of service like the petitioner. It has also been held that the benefit of 1965 Rules has been rightly granted to the petitioner in that case. Rules 2 and 3 of the 1968 Rules as amended on 20.4.1977 reads as under:

"2. Definition. In these rules, unless the context otherwise requires:-

(a) Indian Armed Forces Personnel means the Emergency Commissioned Officers, the Short Service Regular Commissioned Officers, the Junior Commissioned Officers, the Non-Commissioned Officers, and other ranks of the Armed Forces of the Union:

(b) Non technical posts means all posts under the State Government, other than the posts in the medical and Engineering Services:

(c) release (with its grammatical variations means release as per the Scheduled year of release after a spell of services, from the Armed Forces of the Union but does not include release during or at the end of training, or during or at the end of Short Service Commission granted to cover periods of such training prior to being taken in actual service or release on account of misconduct or inefficiency or at the request of a released Indian Armed Forces Personnel himself:

(d) Released Indiana Armed Forces Personnel means the Indian Armed Forces and personnel who were commissioned to or who joined the Armed Forces of the Union a the case may be on or after the first day of November, 1962, but before the 10th day of January, 1968 and who were released on demobilisation thereafter but does not include:

(i) Voluntee Reserved Forces Personnel of the Armed Forces of the Union called upon the temporary service: or

(ii) Indian Armed Force Personnel who, before their appointment against vacancies reserved under these rules.-

(a) are granted permanent commission: or

(b) joined or join a civil service of the Union or a civil service of a State or a civil post under the Union or a State after their release from the Armed Forces of the Union:

(e) Scheduled year of release means.-

xxxxx

xxxxx

"3(1) "Twenty percent of the non technical posts to be filled up through direct recruitment shall be reserved for being filed up by the Released Indian Armed Forces Personnel."

Referring to Sections 22 and 23 of the Air Force Act, 1950 the Division Bench held that there are three categories of recruitment, release and discharge contemplated by Sections 22 and 23. On the basis of the afore mentioned provisions it was concluded that the discharge certificate issued to the petitioner in that case would be covered by third category i.e. discharge after full period of service in the Air Force. The factual position is the same in the instant case in view o the language used in Annexure R/1 which states that the petitioner has been released on completion of regular service. The Division Bench then interpreted the 1968 Rules as amended in 1977 and reliance was placed on Full Bench judgment in the case of Dei Chand Phaugat v. State of Haryana ILR 1980 P & H 252. The views of the Division Bench in inderjit Kaushik''s case (supra) reads as under:

"What next calls for consideration is the factum of the meaningful change made in the rules by the amendment in 1977. As already noticed above, the originally enacted Rules 1968 neither contained any definition of the phrase Released Indian Armed Forces Personnel nor did it particularise the mode of such ''release''. The original Rule 3(1) merely talks of personnel who joined service on Commission on or after the first day of November, 1962 and were released at any time thereafter. By the amendment in 1977 detailed and specific changes were introduced in the Rules by the total substitution of Rule 2. A mere look at it shows the meticulous precision with which new definitions have been inserted including therein those of the "Indiana Armed Forces Personnel" itself, as also of "release" and in greater detail even of the "scheduled year of release". Plainly enough, the vague concept of release at any time after the commissioning on or after first day of November, 1962 has undergone a metamorphosis and apart from other changes, the specific concept of released on demobilisation has been introduced. Not only that certain categories of release coming within the ambit have been specifically excluded by Sub-clauses (i) and (ii) to Clause (d) of Rule 2 of the Rules. Clearly enough, the framers of the rules were not indulging in an exercise in futility and obviously intended to make significant changes by amending the 1968 Rules. The crux of the matter, therefore, is to construe the correct meaning of the phrase released on demobilisation. In Corpus Juris Secundum (Vol. 26A) the meaning attributed thereto is as under:

"Demobilisation. In military law, the dismissal of an army or body of troops from active service".

Again the dictionary meaning of the word is equally a pointer to the same effect. In Webster''s. Third New International Dictionary, the meaning of demobilization is as under:

"the reduction (as of force, equipment or resources) from a war basis to a peace basis: the disarming of troops previously mobilized: release from the armed services....."

It would be thus plain that demobilization even if widely construed, cannot become an equivalent of mere retirement on superannuation from defence service. The framers of the Rules deliberately introduced this condition as against a release simpliciter from the Armed Services in the unamended rules. Consequently, a mere discharge on fulfilling the specific conditions of his enrolment in the regular service of the Air Force, in my opinion, cannot be treated as synonymous with release on demobilisation."

The aforesaid view is further buttressed on a larger perspective of Rule 2(d) of the Rules. The definition does not include within its ambit all and every Indian Armed Forces Personnel, but drastically cuts it down. It first includes only those within its ambit, who were commissioned in the Armed Forces on or after the Ist day of November, 1962 till the 9th day of January, 1968. Clearly this is related to the proclamation or the emergency mae by the President of India under Article 352 of the Constitution on October 26, 1962 in the wake of the Chinese Aggression at that time. This had put the country on a virtual war footing which continued for a considerable time and this later merged again with the tension on the western front culminating in the Indo Pakistan war of 1965. It is in this context that the second date of the tenth day of january, 1968 has relevance. Clearly enough, the definition therefore, pertains to the Indian Armed Forces Personnel who were mobilised during the declaration of the emergency and then demobilised thereafter. The provision was enacted to give benefit to those demobilised consequent upon the reduction of Armed Forces from a war basis to a peace basis thereafter."

It is thus evident that the instant petition lacks merit and is thus liable to the dismissed.

For the reasons recorded above, this petition fails and the same is dismissed.