L.P.A. No.11 of 2008 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
L.P.A. No.11 of 2008
Date of decision: October 4, 2008.
Dalbara Singh
...Appellant(s)
v.
State of Punjab & Ors.
...Respondent(s)
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SURYA KANT
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present: Shri Dalbara Singh - in person.
Shri R.K. Malik, Senior Advocate with
Shri Rajesh Kumar, Advocate (Amicus Curiae).
Shri H.S. Sidhu, Additional Advocate General, Punjab.
ORDER
Surya Kant, J. –
This appeal is directed against the judgment dated 14.11.2007
passed by a learned Single Judge of this Court whereby the writ petition
L.P.A. No.11 of 2008 -: 2 :-
preferred by the appellant to fix his seniority along with consequential
benefits under Rule 5 of the Demobilized Armed Forces Personnel
(Reservation of Vacancies in Punjab State Non-Technical Services) Rules,
1968 (in short the 1968 Rules) after giving the benefit of military service,
has been dismissed.
[2]. The facts giving rise to this appeal are as follows:-
[2.1]. The appellant joined the Indian Army on 24.8.1968. He
participated in the Indo-Pak War of 1971 and was thereafter invalidated on
medical grounds on 11.1.1974.
[2.2]. In response to an advertisement issued by the Punjab
Subordinate Services Selection Board on 1.7.1976 for recruitment to the
posts of Clerks, the appellant applied and was selected against the vacancy
reserved for ex-servicemen. The appellant joined as a Clerk on 28.9.1977 in
the State Transport Department and retired on 30.9.2007 on attaining the
age of superannuation.
[2.3]. It appears that soon after his appointment as a Clerk, the
appellant claimed the benefit of his military service towards seniority in the
civil employment. It is manifest from the correspondence (Annexures P3 to
P6) that the competent authority passed an order dated 23.5.1980
(Annexure P-10) whereby the entire military service rendered by him with
effect from 24.8.1968 to 11.1.1974 was ordered to be counted towards
seniority and increments. It may, however, be noticed that even before the
passing of the said order, the appellant filed CWP No.1299 of 1980 which
was disposed of by this Court on 26.5.1980 as having become infructuous
on the basis of a short counter affidavit to the effect that the petitioner had
already been granted the desired relief.
L.P.A. No.11 of 2008 -: 3 :-
[2.4]. The Hon’ble Supreme Court, however, vide its order dated
26.2.1986 (Annexure P-15) set aside the above stated order dated 26.5.1980
and remitted the case to this Court for disposal on merits.
[2.5]. Meanwhile, the respondents passed the impugned order dated
22.5.1984 (Annexure P-18) withdrawing their earlier order dated 23.5.1980
whereby the benefit of ‘military service’ was allowed to the appellant.
According to the respondents, the appellant was not entitled for any such
benefit.
[2.6]. Relying upon the judgment of the Supreme Court in the case of
Chitranjan Singh Cheema & Anr. v. State of Punjab & Ors., 1997(2)
RSJ 159, the learned Single Judge has now dismissed the appellant’s above
stated writ petition after holding that no benefit of ‘military service’ can be
granted to him towards seniority and increments under the Punjab Govt.
National Emergency (Concession) Rules, 1965 (in short the 1965 Rules) for
the reason that he had joined the ‘military service’ neither on the call of the
nation during emergency nor did he render any ‘military service’ during the
period of 1st emergency which was over on 10.1.1968.
[2.7]. As regards the appellant’s claim for fixation of seniority under
Rule 5 of the 1968 Rules, the learned Single Judge has observed that since
the appellant has failed to exercise the option to seek voluntary retirement
given to him vide interlocutory order dated 18.10.2006, he is no longer
entitled to claim that benefit also.
[3]. Even before this appeal could be taken up for preliminary
hearing, the respondents passed yet another order dated 20.12.2007
(Annexure P-36) issued on 1.1.2008,whereby recovery of the excess amount
of salary paid to the appellant as a result of grant of benefit of military
L.P.A. No.11 of 2008 -: 4 :-
service towards increments and withdrawal whereof remained stayed during
the pendency of the writ petition, has been ordered from his retiral benefits.
[4]. We thereafter heard the appellant in person who, vociferously
argued his case at length. Being conscious of the fact that the appellant is
not well-versed with the law, we requested Shri R.K. Malik, Senior
Advocate, to assist the Court as amicus which he gracefully agreed to,
though to the disliking of the appellant.
[5]. We have heard the appellant as well as learned amicus and the
State Counsel at length and have also carefully perused the record,
including the additional documents referred to during the course of hearing.
[6]. The question which arises for determination is as to whether the
‘military service’ rendered by the appellant can be counted towards the
seniority and increments under Rule 4 of the 1965 Rules, or for the purpose
of assigning him the ‘deemed date of appointment’ in civil employment
under Rule 5 of the 1968 Rules?
[7]. Rule 2 of the 1965 Rules, defines the expression “military
service” which means enrolled or commissioned service in any of the three
wings of the Indian Armed Forces 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 hereinafter be declared as military service for the purpose of
these Rules. Such ‘military service’ is entitled to be counted for increments,
seniority and pension as provided under Rule 4 of the 1965 Rules.
[8]. The scope, object and import of the 1965 Rules has already
been crystalized by the Supreme Court firstly in the case of (i) Dhan Singh
and others v. State of Haryana and others, 1991 Supp (2) SCC 190; and
L.P.A. No.11 of 2008 -: 5 :-
thereafter in (ii) Chitranjan Singh Cheema and Anr. v. State of Punjab
& Others, 1997(2) RSJ 159, holding that the benefit of ‘military service’
under the 1965 Rules is admissible only if such service is joined and
rendered during the period of emergency which was promulgated on
26.10.1962 and ended on 10.1.1968.
[9]. No “other service” in terms of Rule 2 of the 1965 Rules has
been declared as ‘military service’ for the purposes of 1965 Rules. The
appellant admittedly joined the military service on 24.8.1968 when the first
emergency had already been over. He, thus, is not entitled to the benefit of
his military service for any purpose under the 1965 Rules.
[10]. Adverting to the appellant’s claim for assigning him ‘deemed
date of appointment’ under Rule 5 of the 1968 Rules (as they existed prior
to the amendment on 20.4.1977), it may be noticed that these Rules came
into force with effect from 1.11.1966. In terms of Rule 3 of these Rules,
20% of the non-technical posts (i.e., other than the medical and engineering
services) meant for direct recruitment were reserved for the released Indian
Armed Forces personnel who joined the service on or after 1st November,
1962 and were released at any time thereafter.
[11]. Once a released Indian armed forces personnel was appointed
under Rule 3 against the 20% posts reserved for them, Rule 5 of the 1968
Rules confers following service benefits to such an appointee:-
“5.(1) Seniority and pay of the candidates who are appointed
against the vacancies reserved under rule 3 shall be determined
on the assumption that they joined the service or the post, as the
case may be under the State Govt. at the first opportunity they
had after they joined the military service or training prior to the
L.P.A. No.11 of 2008 -: 6 :-commission.
2) Seniority inter se of candidates who are appointed against
the vacancies reserved under rule 3 and allotted to a particular
year shall be determined on the basis of their dates of birth; the
candidate older in age to be placed senior to the one younger
in age:
Provided that in the case of candidates having the same date of
birth, seniority shall be determined according to the merit list
prepared by the recruiting authority on the basis of the result
of the test or examination.
3) All candidates appointed against the reserved vacancies
under rule 3 shall rank below the candidates appointed by
direct recruitment in the year to which the former candidates
are allotted.”
[12]. It is not in dispute that had the 1968 Rules not been amended
vide notification dated 20.4.1977, the appellant being a released Indian
Armed Forces personnel who had joined the service after the cut-off date
given in Rule 3 of the 1968 Rules, would have been entitled to claim benefit
of Rule 5 thereof.
[13]. To the appellant’s nightmare, there came an amendment in the
1968 Rules vide notification dated 20.4.1977 which was enforced
retrospectively with effect from 28.2.1973. As per the amended clause (d)
of Rule 2 of these Rules, “released Indian armed forces personnel” means
the Indian Armed Forces personnel who were commissioned or who joined
the armed forces of the Union on or after 1st November, 1962 “but before
the 10th day of January, 1968” and were released thereafter on account of
L.P.A. No.11 of 2008 -: 7 :-
demobilization.
[14]. Since the appellant had joined the armed forces on 24.8.1968,
i.e., after the 10th January, 1968 (inserted as the last cut-off date by way of
1977 amendment), the appellant, according to the respondents, was not
entitled for availing the benefit of his military service even under Rule 5 of
the 1968 Rules also.
[15]. Shri R.K. Malik, the learned Amicus, however, stoutly
controverted the respondents’ claim. He urged that after his discharge from
army on 11.1.1974, the appellant applied against the advertisement issued
by the Subordinate Services Selection Board on 1.7.1976 and got selected
for appointment much before the amended definition of “released Indian
armed forces personnel” came into force vide notification dated 20.4.1977.
According to the learned Amicus, the joining by the appellant on 28.9.1977,
i.e., after enforcement of the amendment dated 20.4.1977, is merely a
fortuitous circumstance which could not have taken away his right to seek
deemed date of appointment under Rule 5 of the 1968 Rules as the said
right had already accrued in his favour as soon as he was selected, more so
when the date of joining is bound to change by virtue of the deeming fiction
created by Rule 5 itself. In support, Shri Malik relied upon a judgment of
this Court passed in CWP No.13685 of 1989 (Jasmohan Singh v. State of
Punjab), dated 5.4.1991. In that case, the advertisement for the post was
issued and the interview was also held prior to the amendment dated
20.4.1977 in the 1968 Rules though the appointment letter was issued later.
It was held that the petitioner therein was entitled to the benefits admissible
under the un-amended Rules which could not have been taken away by the
amendment dated 20.4.1977. The said judgment was subsequently followed
L.P.A. No.11 of 2008 -: 8 :-
by another learned Single Judge of this Court in the case of Hardev Singh
v. State of Punjab, 1994(3) RSJ 724.
[16]. We are in respectful agreement with the view taken by the
learned Judges in the above cited cases. We say so for the reason that the
1968 Rules are a piece of beneficial subordinate legislation. The provisions
of these Rules need to be interpreted and construed liberally to extend the
benefits as far as possible so that the object for which the same were enacted
could be achieved. It cannot be off-sighted that the 1965 Rules were
enacted with the sole aim to encourage the Nation’s young blood, who were
otherwise keen on pursuing their career in the civil employment, to join the
Indian Army in that hour of crisis and to revert back thereafter to the civil
employment and get placed at the same position in terms of seniority etc.
which they would have got otherwise had they not joined the military
service. The appellant who joined the Indian Army at that juncture, was
presumably aware of the fact and had a legitimate expectation as well that as
and when he joined the civil employment after serving the army, he would
be entitled to claim the benefits under Rule 5 of the 1968 Rules. We,
however, hasten to add that no vested right got accrued in favour of the
appellant to claim benefit under Rule 5 only because the 1968 Rules had
come into force before he joined the Army.
[17]. We are, therefore, of the considered view that though the
appellant is not entitled to claim the benefit of his military service under the
1965 Rules, he is undoubtedly entitled to claim the benefit(s) flowing from
Rule 5 of the 1968 Rules. The impugned order dated 22.5.1984 (Annexure
P-18) as well as the judgment under appeal to that extent are liable to be set
aside and we order accordingly.
L.P.A. No.11 of 2008 -: 9 :-
[18]. There is yet another aspect of the matter. As noticed earlier,
soon after the dismissal of the writ petition by the learned Single Judge, the
respondents passed another order dated 20.12.2007 (issued on 1.1.2008)
(Annexure P-36) whereby recovery of the arrears of the increments granted
earlier to the appellant vide order dated 23.5.1980 (Annexure P-10), has
been ordered to be effected. During the course of hearing, it was stated on
behalf of the respondents that payment of the gratuity and some other retiral
benefits to the appellant have been withheld and adjusted against the
amount recoverable from him.
[19]. We find from the correspondence (Annexures P-1 to P-6) that
the appellant neither misrepresented the facts nor misled the authorities
while claiming the benefits of military service towards seniority or
increments. It is after considering the original record of his military service
that the respondents had on their own passed the order dated 23.5.1980
(Annexure P-10) thereby granting the benefit of military service towards
seniority and increments. The appellant continued to draw those increments
till his retirement. On a specific query by us, learned State Counsel has
fairly stated that the appellant can, in no way, be blamed for enjoying the
said benefits granted erroneously to him by the respondents on their own.
[20]. Where an employee has got some monetary benefits without
misrepresenting the facts nor is he responsible for misconstruction of the
Rules or instructions, he cannot be held to have faulted for such benefit,
even if the same was granted erroneously, and no recovery can be permitted
to be effected from him, as held by the Hon’ble Supreme Court in the case of
Sahib Ram v. State of Haryana, 1995(2) RSJ 139 and reiterated in the
case of Babu Lal Jain v. State of M.P. & Ors., (2007)6 SCC 180. In this
L.P.A. No.11 of 2008 -: 10 :-
view of the matter, we hold that irrespective of the appellant’s entitlement
for the benefits under the 1965 or 1968 Rules, no recovery of the arrears of
increments already granted to him way back in the year 1980, can be
allowed to be effected. The recovery order dated 20.12.2007 (Annexure P-
36), though not formally assailed before us but being a subsequent event,
we take notice thereof and hereby quash the same.
[21]. In view of the above discussion, this appeal is accepted; the
impugned judgment passed by the learned Single Judge is set aside and the
writ petition filed by the appellant is allowed in part with the following
directions:-
(i) the respondents are directed to consider the claim of the
appellant for fixation of his seniority under Rule 5 of the
Demobilized Armed Forces Personnel (Reservation of
Vacancies in Punjab State Non-Technical Services) Rules,
1968; the needful shall be done within a period of three
months from the date a certified copy of this order is
received. However, the consequential monetary benefits, if
any, to which the appellant may be held entitled to on
fixation of his deemed date of appointment shall not be paid
to him in view of direction No.(ii) issued hereinafter though
such deemed date of appointment and notional pay fixation
shall be taken into account while fixing the retiral benefits,
including pension of the appellant;
(ii) the recovery order dated 20.12.2007 (Annexure P-36)
having been quashed, no recovery, whatsoever, of the
arrears of increments granted to the appellant vide order
L.P.A. No.11 of 2008 -: 11 :-dated 23.5.1980 shall be effected from him;
(iii) the arrears of all the retiral benefits withheld by the
respondents for adjusting against the amount to be
recoverable from the appellant, shall be released forthwith
but not later than three months failing which the
respondents shall be liable to pay interest to the appellant @
9% per annum on such arrears;
(iv) No recovery whatsoever shall be effected from the
appellant, as directed vide No.(ii) above, even if in
compliance to direction No.(i) it is held that the appellant
had no other opportunity to join the civil employment prior
to the advertisement dated 1.7.1976 and, thus, he is not
entitled for any deemed date of appointment prior to
28.9.1977 under Rule 5 of the Demobilized Armed Forces
Personnel (Reservation of Vacancies in Punjab State Non-
Technical Services) Rules, 1968
[19]. There shall be no order as to costs.
[ Surya Kant ]
Judge
October 4, 2008. [T.S. Thakur]
kadyan Chief Justice