JUDGMENT
M.M. Kumar, J.
1. These appeals under Clause X of the Letters Patent are directed against order dated 15.7.1997 vide which the learned Single Judge allowed Civil Writ Petition Nos.4228 and 3455 of 1981 filed by respondents B.L.Goyal and K.L.Munjal and ordered reframing of their seniority vis-a-vis the appellant.
2. The principal controversy in this case revolves around the true import of the circular letter Nos. 3068-40 SI.64/10930 dated 6.4.1964 (Annexure R/6) and 64441-Br. II(2)-64/16837 dated P.7.1964 (Annexure R/1). The circular letter dated 6.4.1964 was issued by the Chief Secretary, Punjab, with a view to encourage the engineering students to volunteer for short service Regular Commission in the Army in the wake of Indo-China Conflict which came to be known as University Entry Scheme. The Government decided that pre-final and final year students of the Engineering Colleges in Punjab would be appointed as Temporary Assistant Engineers from the date of grant of provisional short Service Regular Commission and they would be deemed to have joined the military duty from the afore mentioned date. The circular letter dated 6.4.1964 relaxed the qualification of degree in favour of persons appointed as Temporary Assistant Engineers on the grant of provisional Short Service Regular Commission. Some changes were incorporated in the policy of the State Government vide another circular letter dated 17.7.1964 because the previous circular did not elicit the desired response. For the sake of convenience, the relevant portion of circular dated 17.7.1964 is extracted below” “Sub: Incentive for final year students of Engineering Colleges in Punjab who joined military service during the present emergency.
As you are aware due to the present emergency the Army authorities require a good number of Engineer in Commissioned ranks. It has been observed that there has been poor response from the Engineers of Punjab State for Emergency Commission. In order to attract more Engineers to join military Service, Government have found it necessary to provide some incentives to final years students of the Engineering College in the Punjab State. To achieve this end, it has been decided that Engineering Students who are selected for Commission during their studies should be formally appointed as T.A.Es. In Punjab PWD from the date of their passing the final year examination or the date from which they get emergency Commission, whichever is later. This will provide them sufficient security of absorption in State Civil Service after their demobilization from military service. In order to implement this decision, appointment of such candidates as T.A.Es. in Punjab P.W.D. B&R has been taken out of the purview of the Punjab Service Commission as per Home Department Notification No. GSR-12/Const. Art./320/64 dated 27th May, 1964. (copy enclosed). You are, therefpre, requested to apprise the principal of all Engineering Colleges in Punjab of this concession so that it is brought to the notice of final year students and they are persuaded to apply for the emergency commission during the present emergency. The particulars of those Engineering Students who have already joined the military service and have since passed final examination should also be obtained so that the matter may be taken up with the military authorities in order to apprise the candidates concerned of the aforementioned concession and in case they are willing to be absorbed in Punjab PWD their option with regard to the particular branch of PWD which they have presence be obtained.”
3. In view of the above, the only question for determination in these appeals before us is as to what should be the date of appointment of appellant which would determine his inter-se seniority with others like the private respondents in the Haryana Service of Engineers Class I/Class II Service. For the purpose of deciding the issue, we are made to notice the facts from Letters Patent Appeal No. 86 of 1999.
4. The appellant C.L.Garg was interviewed for Short Service Commission in the Engineering College campus at Chandigarh in March/April 1963. He was granted Short Service Commission in the Army w.e.f. 14.2.1965 after pre-Commission training which started on 20.7.1964. He was eventually granted two years ante dated seniority for pay and promotion. This is borne out from notification Annexure A-4 dated 25.12.1965, which reads as under:-
“New Delhi, the 25th December, 1965.
No. 391 dated 14th Dec., 1965. The President is pleased to make the following appointments.
The undermentioned are granted short service Regular Commission on probation in the rank of 2Lt. It under 4.8.1983 from the date shown against their names and their short services Regular Commission on probation is confirmed for a period of 5 years w.e.f. 14th Feb., 1965. These officers are also granted 2 years ante date of seniority for pay and promotion from the 14th Feb., 1963 under A.I.S. 4.8.1963 and 126/51 as amended by Corrigendum No. 67/59 and accordingly promoted to the rank of 2Lt. w.e.f. 14th Feb., 1965.
Chiman Lal Garg (Ss 18170)
Engineers 10th Oct., 1963″
5. The appellant was relieved from the Army. He was appointed as Assistant Temporary Engineer (under training) in the Haryana Public Works Department (B&R) on 14.2.1970. In order to avail the benefits envisaged by circular letters dated 6.4.1964 and 17.7.1964, he made representations and vide order dated 14.7.1981, the appellant was given the benefit of military service rendered by him for the period from 20.5.1964 to 12.5.1970 for pay fixation as well as for seniority. In so far as the issue of seniority was concerned, it was specifically pointed out in the order dated 14.7.1981 that the inter se seniority amongst the Asstt. Engineers/ Sub Divisional Engineers was to be fixed between the appellant and Sh. D.P. Gupta and B.L.Goyal by allowing him the benefit of military service from 20.5.1964. On the basis of the order dated 14.7.1981, consequential order was passed on 29.4.1987 (Annexure P.I7A) declaring the appellant eligible for appointment to Haryana Service of Engineers Class I (Civil) PWD (B&R) w.e.f. 21.1.1970. Thereafter, order Annexure P-23 dated 16.12.1997 was issued for grant of selection grade to the appellant. He was then promoted as Superintending Engineer with effect from 28.8.1991 vide order Annexure P-25 dated 25.10.1989.
6. Sarvshri B.L. Goyal and K.L. Munjhal, filed Civil Writ Petition Nos. 4228 and 3455 of 1991 for quashing orders dated 4.7.1981 (Annexure P.7), 29.4.1987 (Annexure P.17A), 16.12.1987 (Annexure P.23) and 25.10.1989 (Annexure P.25). The learned Single Judge allowed their petitions and declared that the appellant was not entitled to get the benefits under circular dated 6.4.1964 by making the following observations:-
“It is conceded position between the learned Counsel representing the parties that whereas Punjab incorporated in the Rules, Rule 10-A in January 1973, so far as Haryana is concerned this rule is not there at all in the Rules. So far as letter of 1964 is concerned, it has been specifically held by the Division Bench that the same does not refer to those who had been appointed prior to 6.4.1964 as also that all those persons who were persuaded to join the Army in pursuance of the letter dated 6.4.1964 can prefer their claim of the grant of assumed service benefits but the respondents who had admittedly joined Armed Force prior to 6.4.1964 cannot prefer any such claim which if admitted would adversely affect the service conditions of those who were in service when the respondents joined the Army. It is , thus, apparent that whereas Rule 10-A which is not in the Rules as also the letter of 1964 cannot in this case come to the rescue of the respondents to give them the deemed date of appointment as has been given to them by the respondent State.
Mr. Patwalia, learned counsel for respondents 3 and 4, however, contends that in the judgment aforesaid even though such was the interpretation, yet the petitioners of the said case were given the date of appointment from 6.4.1964 even though the same was by virtue of concession made by the learned counsel representing the State as also that judgment aforesaid is subject matter of review…He also contends that numerous other points which did arise were neither canvassed nor any decision given thereon by the learned Division Bench. This Court is however of the view that these grounds pressed into service by Mr. Patwalia for either giving the respondents the deemed date as 6.4.1964 as had been given on the basis of concession in B.L. Bonsal’s case (supra) or to hold that a Division Bench is not correct either for the reason that there were certain points to say that the judgment is not correct or that certain other points be
canvassed before the learned Division Bench cannot be sustained. Concession given in the case aforesaid cannot mutatis mutandi apply in this case. This court is not sitting in appeal rendered by the Division Bench. That apart, if validity of the decision rendered by the larger Bench is to be gone into by a Single Judge or smaller Bench, there will be no finality attached to any judgment. Nothing at all has been pointed out before this Court that might persuade this court to refer the matter to a larger Bench.” The operative part of the judgment of learned Single Judge reads thus:
For the reasons mentioned above, respondent 3 and 4 cannot be given deemed date on the basis of letter dated 6.4.1964. As per Class II Service Rules, the petitioners having passed their examination earlier than respondents 3 and 4 as also having been appointed as Asstt. Engineer prior in time cannot rank junior to respondents 3 and 4. The respondent-State is, thus, directed to reframe the seniority vis-a-vis petitioners and respondents 3 and 4 as early as possible in view of the observations made by this Court and, in any case, not later than two months from today. The writ petition is allowed in the manner aforesaid but there shall be no order as to costs.”
7. Shri P.S.Patwalia argued that the impugned order is liable to be set aside because the judgment of the Division Bench in B.L.Bansal and ORs. v. State of Punjab and ORs. , 1995(1) RSJ 736 which constitutes touch-stone thereof has been reversed by the Supreme Court. He then argued that even if the judgment of the Division Bench in B.L. Bansal’s case (supra) is deemed to have not been reversed on merits, the appellants cannot be denied the benefit of instructions issued vide letters dated 6.4.1964 and 17.7.1964 and, therefore, the order dated 14.7.1981 passed by the State Government granting military service benefit to the appellant from 20.5.1964 to 12.5.1970 and consequential orders passed on 16.12.1987 and 25.10.1989 giving him promotions as Executive Engineer, Superintending Engineer and Selection Grade did not warrant interference by the learned Single Judge. He then submitted that the appellant and the respondent have retired from service and, therefore, no substantive loss would be caused to the latter due to setting aside of the impugned order.
8. Sh. Jaswant Singh candidly admitted that judgment of the Division Bench in B.L. Bonsai’s case (supra) has been reversed by the Supreme Court in granting military service benefit to the appellant was justified as the appellant responding to the call of the nation volunteered to join Army in consideration of incentives detailed in the instructions issued vide letters dated 6.4,1964 and 17.7.1964. He further argued that had the appellant entered the Army by choosing it as a career then possibly it could be said that on release from the Army and joining civil service such an ex-serviceman would not be entitled to the benefit of military service but submitted that this has no bearing on the present case.
9. Sh. Vipan Mahajan, counsel for the private respondents also conceded that judgment of the Division Bench in B.L.Bansal’s case (supra) has been reversed by the Supreme Court. He, however, submitted that in the event the appeals are allowed, the monetary benefits conferred on the private respondents in pursuance to the implementation of the judgment may not be taken back from them.
10. We have thoughtfully considered the submissions of the learned counsel for the parties and are of the view that these appeals must succeed. A perusal of the order under challenge shows that it is by and large founded on the judgment of the Division Bench in B.L.Bansal’s case (supra). Therefore, keeping in view the fact that the said judgment has been reversed by the Supreme Court, we have no choice but to set aside the impugned order.
11. We are further of the view that even if the judgment of the Division Bench in B.L.Bansal’s case (supra) had not been revesed by the Supreme Court, the impugned order will have to be set aside because the learned Single Judge committed a serious error by holding that the appellant is not entitled to get the benefit under instructions dated 6.4.1964. As mentioned above, the date of passing final year examination by the appel-
lant was relevant for the purpose of determination of seniority because it was later than the date of joining the Army. Therefore, keeping in view the fact that the appellant had joined Army on the promise of grant of incentives in civil service, he cannot be denied the benefit in terms of instructions contained in letters dated 6.4.1964 nd 17.7.1964.
12. There is another reason for allowing these appeals. A perusal of instructions dated 17.7.1964 shows that these instructions are declaratory in character. The subject of these instructions clearly states the “incentives for final year students of Engineering Colleges in Punjab who joined military service during present emergency”. Therefore, there would be no illegality in determining the deemed date of appointment of the ap-pellant which might be even anterior to the date of these instructions. In our view the observations of the learned Single Judge to the contrary on this aspect are not well founded. The view which we have taken is supported by the judgment of the Supreme Court in the cases of Channan Singh v. Jai Kaur, AIR 1970 SC 349 and Punjab Traders v. State of Punjab AIR 1990 SC 2300. Some of the observations made in Channan Singh’s case (supra) which have direct bearing on the appeals in hand are as under:-
“If the above discussion is kept in view there is no difficulty in attributing a retroactive intention to the legislature when the Amendment Act of 1964 was enacted. It is well settled that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. We are in entire agreement with the following views expressed in a recent Full Bench decision of the Punjab High Court in ILR (1968)1 Punjab 104. at P, 120 = (AIR 1968 Punjab 141 at P. 149) [(1967)69 P.L.R. 1041 (F.B.) para 20 at p. 1052] in which a similar point came up for consideration.
“A close analysis of paragraphs (First) and (Secondly) of Clause (b) of Sub-section (32) of Section 15 before the amendment introduced by Punjab Act 13 of 1964 would demonstrate that a son of the husband of a female vendor though not born from her womb would be entitled to pre-empt, particularly when the husband’s brother and even the son of the husband’s brother of that female are accorded the right of pre-emption, To reiterate, the right of pre-emption is accorded manifestly on the principle of consanguinity, the property of the female vendor being that of her husband, and there is no reason why the step-son should be excluded and the nephew of the husband included. From this alone it must be inferred that the Legislature had intended to include a step-son and consequently retrospective operation had to be given to the amending Act as such a construction appears to be in consonance and harmony with the purpose and purport of the Act.”
13. By applying the ratio of the above decisions to the facts of these cases, we hold that the appellant was rightly given the benefits in terms of instructions contained in letters dated 16.4.1964 and 17.7.1964.
14. For the reasons recorded above, the appeals are allowed. Civil Writ Petition Nos.
4288 and 3455 of 1981 are dismissed. Annexure A/1 dated 25.11.1998 passed by the
Government of Haryana in pursuance of the directions of the learned Single Judge is
also quashed with a direction to the official respondent to give all consequential benefits
to the appellant which would have flowed to him from orders dated 14.7.1981 (Annexure P.7), 29.4.1987 (Annexure P.17A). 10.12.1987 (Annexure P.23) and 25.10.1989
(Annexure P.25). Let the order be complied with within a period of three months from
today a period of three months from today. It is, however, made clear that these directions shall be not adversely effect the monetary benefits already given to the private respondents with petitions.