Kuldeep Singh vs State of Punjab and Others

Mahesh Grover, J.—The petitioner claims the benefit of seniority by inclusion of military service rendered by him, succeeded by civil service. On a prior occasion the petitioner filed a writ petition bearing No. 10694 of 1993 where he had made a two-fold prayer. (1) That the civil service put in by the petitioner before his induction into military service should be counted towards his civil service benefits. (2) That the benefit of period of military service put in by him during the period of proclamation of emergency should be given to him. During the course of proceedings he gave up the first claim and insisted merely on the second issue of counting of military service during the proclamation of emergency towards the civil service benefits. Learned counsel representing the State in the said writ proceedings conceded in favour of the petitioner by making a statement that the issue was covered by an earlier precedent of this Court in Moti Singh v. District and Sessions Division, 1992 (3) Service Cases Today 312.

The Court on the strength of the statement made by the learned counsel for the State disposed of the writ petition in the following terms:

".......This writ petition is accordingly allowed to this limited extent and a direction is issued to the respondents to give all benefits, including consequential to relief within a period of six months from the date that a copy of this order is supplied to them."

The petitioner was then granted the benefits including that of seniority by virtue of order Annexure P-6 which was subsequently withdrawn by virtue of order Annexure P-9 without disturbing the other consequential benefits.

The petitioner now impugns Annexure P-9 to state that it is in violation of the order of this Court passed in the earlier writ petition preferred by the petitioner.

It is the conceded case of the petitioner before this Court that Moti Singh''s case (supra) on the basis of which the earlier writ petition stood disposed of did not contemplate the grant of seniority.

However, a perusal of the said judgment would indicate the denial of such a benefit, on technical grounds only.

The issue of grant of seniority by counting the period of military service during the proclamation of emergency is no longer res integra as it has been commented upon conclusively by numerous judgments of this court. So much so the State Government has even formulated rules in this regard. Even the ratio of Moti Singh''s case (supra) would talk of grant of such a benefit but declined as observed earlier only on a technical issue of non-inclusion of affected persons as parties to the writ petition.

Keeping in view the above I am of the view that the respondents have misinterpreted the judgment rendered by this Court in both Moti Singh''s case and the case of the petitioner which was disposed of in the same terms. Annexure P-9 is, therefore in conflict with the settled proposition of law and necessarily has to be quashed. The relevant rules would also talk of the grant of seniority by considering period of military service rendered and for the purpose of reference Rules 2 and 4 of the Punjab Government National Emergency (Concession) Rules, 1965 are extracted hereinbelow:-

"2. Definition. - For the purpose of these rules, the expression ''Military Service'' means the service rendered by a person who had been enrolled or commissioned during the period of operation of the proclamation of emergency made by the President under Article 352 of the Constitution of India on the 26th October, 1962, in any of three wings of the India Armed Forces (including the service as a Warrant Office) during the period of the said Emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service."

"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 Service 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 post 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."

Thus keeping in view the above this court is of the view that Annexure P-9 is unsustainable in law and is accordingly quashed. The writ petition is, therefore, allowed and the petitioner is granted the benefit of seniority.