Rajinder Singh vs State of Punjab and Others

Deepak Sibal, J.

C.M. No. 13366 of 2014

The State has filed this application for placing on record the amendment reply by way of affidavit of respondents No. 1 and 3. The application is supported by an affidavit. Learned counsel for the petitioner has no objection if this application is allowed.

Accordingly, this application is allowed and amended reply by way of affidavit on behalf of respondents No. 1 and 3 is taken on record.

Civil miscellaneous application stands disposed of.

Main cases

The present order disposes of a bunch of 15 writ petitions bearing CWP No. 17661 of 2013 (O&M), CWP No. 4725 of 2014, CWP No. 4614 of 2014, CWP No. 4615 of 2014, CWP No. 4646 of 2014, CWP No. 4648 of 2014, CWP No. 4649 of 2014, CWP No. 6466 of 2014, CWP No. 6497 of 2014, CWP No. 7276 of 2014, CWP No. 7606 of 2014, CWP No. 14819 of 2014, CWP No. 27868 of 2013, CWP No. 8619 of 2014 and CWP No. 243 of 2014. As the issue raised in all these petitions is the same, they are being disposed of through the present common order.

All the petitioners are ex-servicemen who claim the benefit of military service rendered during the Second National Emergency towards increments and pension. The Second National Emergency was from 3.12.1971 to 25.3.1977. All the petitioners had joined military service before the Second National Emergency. Through notification dated 2.2.1982, the State of Punjab promulgated Rules called the Punjab Recruitment of Ex-servicemen Rules, 1982 (hereinafter referred to as "the 1982 Rules"). As per rule 8 of the 1982 Rules, Ex-servicemen were granted certain benefits towards increments and pension for having served the cause of the nation during the First National Emergency from 26.10.1962 to 9.1.1968. This was the time when our country was at war with China. Thereafter, in the year 1971, our nation fought Pakistan. Citizens were asked to join the armed forces and those who did join as such at the call of the nation, were also sought to be granted benefits of such military service on their leaving the armed forces and joined civil posts thereafter. For this period, military service rendered between 3.12.1971 to 25.3.1977 was to be counted. This period between 3.12.1971 to 25.3.1977 was called the Second National Emergency period. The 1982 Rules were accordingly amended by the State of Punjab through the Punjab Recruitment of Ex-servicemen (First Amendment) Rules, 2009 (hereinafter referred to as "the 2009 Rules). The following amendments were made:

"2. In the Punjab Recruitment of Ex. servicemen Rule 1982 after rule 8A, the following rule shall be inserted, namely:--

"8-B. Increments and pension-Period of Military Service rendered during the second National Emergency from 3rd December, 1971 to 25th March, 1977, shall count for increments and pension as under:

(a). INCREMENTS- The increments for the aforesaid service shall be paid to those persons only, who joined (sic) and rendered service during the aforementioned period. This benefit will, however, be given only at the time of making first appointment on regular basis on a civil post or service under the Government. However, these increments will on account of his proportion, selection, new recruitment or revision of pay scale or otherwise, and

(b). PENSION- the period of military service, referred to above, shall count towards pension only in case of an appointment to a permanent post under the Government, subject to the following conditions, namely:--

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

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

(iii). The period, if any, between the date of discharge from military service and the date of appointment to any service of 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 as per orders of the Government."

As per above quoted rules, an ex-serviceman was held entitled to the grant of benefit of his military service rendered during the Second National Emergency towards increments only if he had joined the service during the Second National Emergency. So far as pension is concerned, there was no such stipulation qua the same in the above rules.

The above quoted 2009 Rules were again amended in the year 2012. The amendments in the year 2012 are reproduced below for ready reference:

"1. (1) These may be called the Punjab Recruitment of Ex. servicemen (First Amendment) Rules, 2012.

(2) They shall be deemed to have come into force on and with effect from the 1st day of December, 2011.

In the Punjab Recruitment of Ex. Servicemen Rule, 1982 (hereinafter referred to as the said rules) in rule 8B:--

(i) In clause (a) in the second line, the words "joined and" shall be omitted and

(ii) in clause (b) after sub-clause (iii) the following para shall be added namely:--

These benefits shall be available to all the persons who were appointed in Government service against reserved vacancies and were in Services on 1st December, 2011 or are appointed thereafter; on notional basis with effect from 1st January, 2012 and arrears on account of pay shall not be paid.

In the said rules, after rule 8-B, the following rule shall be inserted namely:--

8-C. INCREMENTS AND PENSION- Short service Commissioned Officers who joined Govt. Service shall be granted advance increments equal to the number of completed years of service rendered by them in Armed Forces on basic pay at the time of entry into Government Service. They shall also be entitled to counting of military service rendered by them in armed -forces for purposes of pension in government Civil Service. The period, if any, between the date of release from military service and the date of appointment to civil service or post under the Govt. shall also count towards pension.

(ii) Gratuity-The gratuity drawn by short service commissioned officer in the armed forces shall be adjusted against the gratuity that becomes due for total service rendered in army and civil service.

These benefits shall be available to all the persons who were appointed in Govt. Service against reserved vacancies and were in service as on 1st December, 2011 or are appointed thereafter;

Provided that these benefits shall be admissible for pay fixation on notional basis with effect from 1st January, 2012 and arrears on account of pay shall not be paid."

The above quoted rules amended in the year 2012 show that the amendment was applicable only to those ex-servicemen who were in service of the government on December 12, 2011 or appointed thereafter.

From the above quoted Rules, it is clear that so far as the benefit of military service rendered during the Second National Emergency towards increments is concerned, ex-servicemen who had joined and rendered service during the period of Second National Emergency were only held entitled to the same. So far as the benefit of pension is concerned, it was inconsequential whether the ex-servicemen had joined the military service during the Second National Emergency period or not. Thus, so far as the benefits of military service towards increments is concerned, all the petitioners having joined the military service prior to the Second National Emergency are held not entitled to the same. The petitioners reliance on the notification dated 10.4.2012 (as reproduced above) for the grant of benefit of military service towards increments is misplaced. A perusal of the notification dated 10.4.2012 would show that the same is applicable only to those ex-servicemen who are in the service of the Government as on 1.12.2011 or appointed thereafter. It is the admitted position that none of the petitioners were in the service of the government as on 1.12.2011 as all of them had retired earlier. However, so far as the pension is concerned, as there is no stipulation in the 2009 Rules that the benefit of military service during the Second National Emergency towards pension would be given only to those incumbents who joined the military service during the Second National Emergency period, all the petitioners would be entitled to the grant of military service benefit towards pension. Accordingly, the writ petitions are partly allowed to the extent that the petitioners are held entitled to the grant of benefit of military service rendered by them during the Second National Emergency towards pension. However, they are held not entitled to the grant of any benefit of their military service rendered during the Second National Emergency towards increments.