{"id":134243,"date":"2008-10-04T00:00:00","date_gmt":"2008-10-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dalbara-singh-vs-state-of-punjab-ors-on-4-october-2008"},"modified":"2016-07-06T21:58:23","modified_gmt":"2016-07-06T16:28:23","slug":"dalbara-singh-vs-state-of-punjab-ors-on-4-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dalbara-singh-vs-state-of-punjab-ors-on-4-october-2008","title":{"rendered":"Dalbara Singh vs State Of Punjab & Ors on 4 October, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Dalbara Singh vs State Of Punjab & Ors on 4 October, 2008<\/div>\n
L.P.A. No.11 of 2008                                  -: 1 :-\n\n\n\n\n      IN THE HIGH COURT FOR THE STATES OF PUNJAB AND\n                  HARYANA AT CHANDIGARH\n\n\n\n                                    L.P.A. No.11 of 2008\n                                    Date of decision: October   4, 2008.\n\n\n\nDalbara Singh\n                                                      ...Appellant(s)\n\n            v.\n\n\nState of Punjab & Ors.\n\n                                                      ...Respondent(s)\n\n\n\nCORAM:      HON'BLE THE CHIEF JUSTICE\n            HON'BLE MR. JUSTICE SURYA KANT\n\n\n\n1. Whether Reporters of local papers may be allowed to see the judgment ?\n2. Whether to be referred to the Reporters or not ?\n3. Whether the judgment should be reported in the Digest?\n\n\n\nPresent:    Shri Dalbara Singh - in person.\n\n            Shri R.K. Malik, Senior Advocate with\n            Shri Rajesh Kumar, Advocate (Amicus Curiae).\n\n            Shri H.S. Sidhu, Additional Advocate General, Punjab.\n\n\n                                ORDER\n<\/pre>\n
Surya Kant, J. –\n<\/p>\n
            This appeal is directed against the judgment dated 14.11.2007<\/p>\n
passed by a learned Single Judge of this Court whereby the writ petition
\n L.P.A. No.11 of 2008                                      -: 2 :-<\/span><\/p>\n
preferred by the appellant to fix his seniority along with consequential<\/p>\n
benefits under Rule 5 of the Demobilized Armed Forces Personnel<\/p>\n
(Reservation of Vacancies in Punjab State Non-Technical Services) Rules,<\/p>\n
1968 (in short the 1968 Rules) after giving the benefit of military service,<\/p>\n
has been dismissed.\n<\/p>\n
[2].        The facts giving rise to this appeal are as follows:-<\/p>\n
[2.1].      The appellant joined the Indian Army on 24.8.1968.             He<\/p>\n
participated in the Indo-Pak War of 1971 and was thereafter invalidated on<\/p>\n
medical grounds on 11.1.1974.\n<\/p>\n
[2.2].      In response to an advertisement issued by the Punjab<\/p>\n
Subordinate Services Selection Board on 1.7.1976 for recruitment to the<\/p>\n
posts of Clerks, the appellant applied and was selected against the vacancy<\/p>\n
reserved for ex-servicemen. The appellant joined as a Clerk on 28.9.1977 in<\/p>\n
the State Transport Department and retired on 30.9.2007 on attaining the<\/p>\n
age of superannuation.\n<\/p>\n
[2.3].      It appears that soon after his appointment as a Clerk, the<\/p>\n
appellant claimed the benefit of his military service towards seniority in the<\/p>\n
civil employment. It is manifest from the correspondence (Annexures P3 to<\/p>\n
P6) that the competent authority           passed an order dated 23.5.1980<\/p>\n
(Annexure P-10) whereby the entire military service rendered by him with<\/p>\n
effect from 24.8.1968 to 11.1.1974 was ordered to be counted towards<\/p>\n
seniority and increments. It may, however, be noticed that even before the<\/p>\n
passing of the said order, the appellant filed CWP No.1299 of 1980 which<\/p>\n
was disposed of by this Court on 26.5.1980 as having become infructuous<\/p>\n
on the basis of a short counter affidavit to the effect that the petitioner had<\/p>\n
already been granted the desired relief.\n<\/p>\n
 L.P.A. No.11 of 2008                                      -: 3 :-<\/span><\/p>\n
[2.4].       The Hon’ble Supreme Court, however, vide its order dated<\/p>\n
26.2.1986 (Annexure P-15) set aside the above stated order dated 26.5.1980<\/p>\n
and remitted the case to this Court for disposal on merits.<\/p>\n
[2.5].       Meanwhile, the respondents passed the impugned order dated<\/p>\n
22.5.1984 (Annexure P-18) withdrawing their earlier order dated 23.5.1980<\/p>\n
whereby the benefit of ‘military service’ was allowed to the appellant.<\/p>\n
According to the respondents, the appellant was not entitled for any such<\/p>\n
benefit.\n<\/p>\n
[2.6].       Relying upon the judgment of the Supreme Court in the case of<\/p>\n
Chitranjan Singh Cheema & Anr. v. State of Punjab & Ors., 1997(2)<\/p>\n
RSJ 159, the learned Single Judge has now dismissed the appellant’s above<\/p>\n
stated writ petition after holding that no benefit of ‘military service’ can be<\/p>\n
granted to him towards seniority and increments under the Punjab Govt.<\/p>\n
National Emergency (Concession) Rules, 1965 (in short the 1965 Rules) for<\/p>\n
the reason that he had joined the ‘military service’ neither on the call of the<\/p>\n
nation during emergency nor did he render any ‘military service’ during the<\/p>\n
period of 1st emergency which was over on 10.1.1968.\n<\/p>\n
[2.7].       As regards the appellant’s claim for fixation of seniority under<\/p>\n
Rule 5 of the 1968 Rules, the learned Single Judge has observed that since<\/p>\n
the appellant has failed to exercise the option to seek voluntary retirement<\/p>\n
given to him vide interlocutory order dated 18.10.2006, he is no longer<\/p>\n
entitled to claim that benefit also.\n<\/p>\n
[3].         Even before this appeal could be taken up for preliminary<\/p>\n
hearing, the respondents passed yet another order dated 20.12.2007<\/p>\n
(Annexure P-36) issued on 1.1.2008,whereby recovery of the excess amount<\/p>\n
of salary paid to the appellant as a result of grant of benefit of military
\n L.P.A. No.11 of 2008                                      -: 4 :-<\/span><\/p>\n
service towards increments and withdrawal whereof remained stayed during<\/p>\n
the pendency of the writ petition, has been ordered from his retiral benefits.<\/p>\n
[4].         We thereafter heard the appellant in person who, vociferously<\/p>\n
argued his case at length. Being conscious of the fact that the appellant is<\/p>\n
not well-versed with the law, we requested Shri R.K. Malik, Senior<\/p>\n
Advocate, to assist the Court as amicus which he gracefully agreed to,<\/p>\n
though to the disliking of the appellant.\n<\/p>\n
[5].         We have heard the appellant as well as learned amicus and the<\/p>\n
State Counsel at length and have also carefully perused the record,<\/p>\n
including the additional documents referred to during the course of hearing.<\/p>\n
[6].         The question which arises for determination is as to whether the<\/p>\n
‘military service’ rendered by the appellant can be counted towards the<\/p>\n
seniority and increments under Rule 4 of the 1965 Rules, or for the purpose<\/p>\n
of assigning him the ‘deemed date of appointment’ in civil employment<\/p>\n
under Rule 5 of the 1968 Rules?\n<\/p>\n
[7].         Rule 2 of the 1965 Rules, defines the expression “military<\/p>\n
service” which means enrolled or commissioned service in any of the three<\/p>\n
wings of the Indian Armed Forces rendered by a person during the period of<\/p>\n
operation of the proclamation of emergency made by the President under<\/p>\n
Article 352 of the Constitution on the 26th October, 1962, or such other<\/p>\n
service as may hereinafter be declared as military service for the purpose of<\/p>\n
these Rules. Such ‘military service’ is entitled to be counted for increments,<\/p>\n
seniority and pension as provided under Rule 4 of the 1965 Rules.<\/p>\n
[8].         The scope, object and import of the 1965 Rules has already<\/p>\n
been crystalized by the Supreme Court firstly in the case of (i) Dhan Singh<\/p>\n
and others v. State of Haryana and others<\/a>, 1991 Supp (2) SCC 190; and
\n L.P.A. No.11 of 2008                                     -: 5 :-<\/span><\/p>\n
thereafter in (ii) Chitranjan Singh Cheema and Anr. v. State of Punjab<\/p>\n
& Others, 1997(2) RSJ 159, holding that the benefit of ‘military service’<\/p>\n
under the 1965 Rules is admissible only if such service is joined and<\/p>\n
rendered during the period of emergency which was promulgated on<\/p>\n
26.10.1962 and ended on 10.1.1968.\n<\/p>\n
[9].        No “other service” in terms of Rule 2 of the 1965 Rules has<\/p>\n
been declared as ‘military service’ for the purposes of 1965 Rules. The<\/p>\n
appellant admittedly joined the military service on 24.8.1968 when the first<\/p>\n
emergency had already been over. He, thus, is not entitled to the benefit of<\/p>\n
his military service for any purpose under the 1965 Rules.<\/p>\n
[10].       Adverting to the appellant’s claim for assigning him ‘deemed<\/p>\n
date of appointment’ under Rule 5 of the 1968 Rules (as they existed prior<\/p>\n
to the amendment on 20.4.1977), it may be noticed that these Rules came<\/p>\n
into force with effect from 1.11.1966. In terms of Rule 3 of these Rules,<\/p>\n
20% of the non-technical posts (i.e., other than the medical and engineering<\/p>\n
services) meant for direct recruitment were reserved for the released Indian<\/p>\n
Armed Forces personnel who joined the service on or after 1st November,<\/p>\n
1962 and were released at any time thereafter.\n<\/p>\n
[11].       Once a released Indian armed forces personnel was appointed<\/p>\n
under Rule 3 against the 20% posts reserved for them, Rule 5 of the 1968<\/p>\n
Rules confers following service benefits to such an appointee:-<\/p>\n
           “5.(1) Seniority and pay of the candidates who are appointed<\/p>\n
           against the vacancies reserved under rule 3 shall be determined<\/p>\n
           on the assumption that they joined the service or the post, as the<\/p>\n
           case may be under the State Govt. at the first opportunity they<\/p>\n
           had after they joined the military service or training prior to the
\n L.P.A. No.11 of 2008                                     -: 6 :-<\/span><\/p>\n
           commission.\n<\/p><\/blockquote>\n
            2) Seniority inter se of candidates who are appointed against<\/p>\n
            the vacancies reserved under rule 3 and allotted to a particular<\/p>\n
            year shall be determined on the basis of their dates of birth; the<\/p>\n
            candidate older in age to be placed senior to the one younger<\/p>\n
            in age:\n<\/p><\/blockquote>\n
            Provided that in the case of candidates having the same date of<\/p>\n
            birth, seniority shall be determined according to the merit list<\/p>\n
            prepared by the recruiting authority on the basis of the result<\/p>\n
            of the test or examination.\n<\/p><\/blockquote>\n
            3) All candidates appointed against the reserved vacancies<\/p>\n
            under rule 3 shall rank below the candidates appointed by<\/p>\n
            direct recruitment in the year to which the former candidates<\/p>\n
            are allotted.”\n<\/p><\/blockquote>\n
[12].       It is not in dispute that had the 1968 Rules not been amended<\/p>\n
vide notification dated 20.4.1977, the appellant being a released Indian<\/p>\n
Armed Forces personnel who had joined the service after the cut-off date<\/p>\n
given in Rule 3 of the 1968 Rules, would have been entitled to claim benefit<\/p>\n
of Rule 5 thereof.\n<\/p>\n
[13].       To the appellant’s nightmare, there came an amendment in the<\/p>\n
1968 Rules vide notification dated 20.4.1977 which was enforced<\/p>\n
retrospectively with effect from 28.2.1973. As per the amended clause (d)<\/p>\n
of Rule 2 of these Rules, “released Indian armed forces personnel” means<\/p>\n
the Indian Armed Forces personnel who were commissioned or who joined<\/p>\n
the armed forces of the Union on or after 1st November, 1962 “but before<\/p>\n
the 10th day of January, 1968” and were released thereafter on account of
\n L.P.A. No.11 of 2008                                      -: 7 :-<\/span><\/p>\n
demobilization.\n<\/p>\n
[14].       Since the appellant had joined the armed forces on 24.8.1968,<\/p>\n
i.e., after the 10th January, 1968 (inserted as the last cut-off date by way of<\/p>\n
1977 amendment), the appellant, according to the respondents, was not<\/p>\n
entitled for availing the benefit of his military service even under Rule 5 of<\/p>\n
the 1968 Rules also.\n<\/p>\n
[15].       Shri R.K. Malik, the learned Amicus, however, stoutly<\/p>\n
controverted the respondents’ claim. He urged that after his discharge from<\/p>\n
army on 11.1.1974, the appellant applied against the advertisement issued<\/p>\n
by the Subordinate Services Selection Board on 1.7.1976 and got selected<\/p>\n
for appointment much before the amended definition of “released Indian<\/p>\n
armed forces personnel” came into force vide notification dated 20.4.1977.<\/p>\n
According to the learned Amicus, the joining by the appellant on 28.9.1977,<\/p>\n
i.e., after enforcement of the amendment dated 20.4.1977, is merely a<\/p>\n
fortuitous circumstance which could not have taken away his right to seek<\/p>\n
deemed date of appointment under Rule 5 of the 1968 Rules as the said<\/p>\n
right had already accrued in his favour as soon as he was selected, more so<\/p>\n
when the date of joining is bound to change by virtue of the deeming fiction<\/p>\n
created by Rule 5 itself. In support, Shri Malik relied upon a judgment of<\/p>\n
this Court passed in CWP No.13685 of 1989 (Jasmohan Singh v. State of<\/p>\n
Punjab), dated 5.4.1991. In that case, the advertisement for the post was<\/p>\n
issued and the interview was also held prior to the amendment dated<\/p>\n
20.4.1977 in the 1968 Rules though the appointment letter was issued later.<\/p>\n
It was held that the petitioner therein was entitled to the benefits admissible<\/p>\n
under the un-amended Rules which could not have been taken away by the<\/p>\n
amendment dated 20.4.1977. The said judgment was subsequently followed
\n L.P.A. No.11 of 2008                                      -: 8 :-<\/span><\/p>\n
by another learned Single Judge of this Court in the case of Hardev Singh<\/p>\n
v. State of Punjab,<\/a> 1994(3) RSJ 724.\n<\/p>\n
[16].        We are in respectful agreement with the view taken by the<\/p>\n
learned Judges in the above cited cases. We say so for the reason that the<\/p>\n
1968 Rules are a piece of beneficial subordinate legislation. The provisions<\/p>\n
of these Rules need to be interpreted and construed liberally to extend the<\/p>\n
benefits as far as possible so that the object for which the same were enacted<\/p>\n
could be achieved.     It cannot be off-sighted that the 1965 Rules were<\/p>\n
enacted with the sole aim to encourage the Nation’s young blood, who were<\/p>\n
otherwise keen on pursuing their career in the civil employment, to join the<\/p>\n
Indian Army in that hour of crisis and to revert back thereafter to the civil<\/p>\n
employment and get placed at the same position in terms of seniority etc.<\/p>\n
which they would have got otherwise had they not joined the military<\/p>\n
service. The appellant who joined the Indian Army at that juncture, was<\/p>\n
presumably aware of the fact and had a legitimate expectation as well that as<\/p>\n
and when he joined the civil employment after serving the army, he would<\/p>\n
be entitled to claim the benefits under Rule 5 of the 1968 Rules. We,<\/p>\n
however, hasten to add that no vested right got accrued in favour of the<\/p>\n
appellant to claim benefit under Rule 5 only because the 1968 Rules had<\/p>\n
come into force before he joined the Army.\n<\/p>\n
[17].        We are, therefore, of the considered view that though the<\/p>\n
appellant is not entitled to claim the benefit of his military service under the<\/p>\n
1965 Rules, he is undoubtedly entitled to claim the benefit(s) flowing from<\/p>\n
Rule 5 of the 1968 Rules. The impugned order dated 22.5.1984 (Annexure<\/p>\n
P-18) as well as the judgment under appeal to that extent are liable to be set<\/p>\n
aside and we order accordingly.\n<\/p>\n
 L.P.A. No.11 of 2008                                      -: 9 :-<\/span><\/p>\n
[18].       There is yet another aspect of the matter. As noticed earlier,<\/p>\n
soon after the dismissal of the writ petition by the learned Single Judge, the<\/p>\n
respondents passed another order dated 20.12.2007 (issued on 1.1.2008)<\/p>\n
(Annexure P-36) whereby recovery of the arrears of the increments granted<\/p>\n
earlier to the appellant vide order dated 23.5.1980 (Annexure P-10), has<\/p>\n
been ordered to be effected. During the course of hearing, it was stated on<\/p>\n
behalf of the respondents that payment of the gratuity and some other retiral<\/p>\n
benefits to the appellant have been withheld and adjusted against the<\/p>\n
amount recoverable from him.\n<\/p>\n
[19].       We find from the correspondence (Annexures P-1 to P-6) that<\/p>\n
the appellant neither misrepresented the facts nor misled the authorities<\/p>\n
while claiming the benefits of military service towards seniority or<\/p>\n
increments. It is after considering the original record of his military service<\/p>\n
that the respondents had on their own passed the order dated 23.5.1980<\/p>\n
(Annexure P-10) thereby granting the benefit of military service towards<\/p>\n
seniority and increments. The appellant continued to draw those increments<\/p>\n
till his retirement. On a specific query by us, learned State Counsel has<\/p>\n
fairly stated that the appellant can, in no way, be blamed for enjoying the<\/p>\n
said benefits granted erroneously to him by the respondents on their own.<\/p>\n
[20].       Where an employee has got some monetary benefits without<\/p>\n
misrepresenting the facts nor is he responsible for misconstruction of the<\/p>\n
Rules or instructions, he cannot be held to have faulted for such benefit,<\/p>\n
even if the same was granted erroneously, and no recovery can be permitted<\/p>\n
to be effected from him, as held by the Hon’ble Supreme Court in the case of<\/p>\n
Sahib Ram v. State of Haryana,<\/a> 1995(2) RSJ 139 and reiterated in the<\/p>\n
case of Babu Lal Jain v. State of M.P. & Ors., (2007)6 SCC 180. In this
\n L.P.A. No.11 of 2008                                      -: 10 :-<\/span><\/p>\n
view of the matter, we hold that irrespective of the appellant’s entitlement<\/p>\n
for the benefits under the 1965 or 1968 Rules, no recovery of the arrears of<\/p>\n
increments already granted to him way back in the year 1980, can be<\/p>\n
allowed to be effected. The recovery order dated 20.12.2007 (Annexure P-<\/p>\n
36), though not formally assailed before us but being a subsequent event,<\/p>\n
we take notice thereof and hereby quash the same.\n<\/p>\n
[21].          In view of the above discussion, this appeal is accepted; the<\/p>\n
impugned judgment passed by the learned Single Judge is set aside and the<\/p>\n
writ petition filed by the appellant is allowed in part with the following<\/p>\n
directions:-\n<\/p>\n
               (i) the respondents are directed to consider the claim of the<\/p>\n
                 appellant for fixation of his seniority under Rule 5 of the<\/p>\n
                 Demobilized Armed Forces Personnel (Reservation of<\/p>\n
                 Vacancies in Punjab State Non-Technical Services) Rules,<\/p>\n
                 1968; the needful shall be done within a period of three<\/p>\n
                 months from the date a certified copy of this order is<\/p>\n
                 received. However, the consequential monetary benefits, if<\/p>\n
                 any, to which the appellant may be held entitled to on<\/p>\n
                 fixation of his deemed date of appointment shall not be paid<\/p>\n
                 to him in view of direction No.(ii) issued hereinafter though<\/p>\n
                 such deemed date of appointment and notional pay fixation<\/p>\n
                 shall be taken into account while fixing the retiral benefits,<\/p>\n
                 including pension of the appellant;\n<\/p><\/blockquote>\n
               (ii) the recovery order dated 20.12.2007 (Annexure P-36)<\/p>\n
                 having been quashed, no recovery, whatsoever, of the<\/p>\n
                 arrears of increments granted to the appellant vide order
\n L.P.A. No.11 of 2008                                    -: 11 :-<\/span><\/p>\n
               dated 23.5.1980 shall be effected from him;<\/p>\n<\/blockquote>\n
            (iii) the arrears of all the retiral benefits withheld by the<\/p>\n
               respondents for adjusting against the amount to be<\/p>\n
               recoverable from the appellant, shall be released forthwith<\/p>\n
               but not later than three months failing which the<\/p>\n
               respondents shall be liable to pay interest to the appellant @<\/p>\n
               9% per annum on such arrears;\n<\/p><\/blockquote>\n
            (iv) No recovery whatsoever shall be effected from the<\/p>\n
               appellant, as directed vide No.(ii) above, even if in<\/p>\n
               compliance to direction No.(i) it is held that the appellant<\/p>\n
               had no other opportunity to join the civil employment prior<\/p>\n
               to the advertisement dated 1.7.1976 and, thus, he is not<\/p>\n
               entitled for any deemed date of appointment prior to<\/p>\n
               28.9.1977 under Rule 5 of the Demobilized Armed Forces<\/p>\n
               Personnel (Reservation of Vacancies in Punjab State Non-<\/p><\/blockquote>\n
\n\n               Technical Services) Rules, 1968\n\n[19].      There shall be no order as to costs.\n\n\n\n                                                  [ Surya Kant ]\n                                                       Judge\n\n\n\nOctober 4, 2008.                                  [T.S. Thakur]\nkadyan                                            Chief Justice\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Dalbara Singh vs State Of Punjab & Ors on 4 October, 2008 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) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-134243","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nDalbara Singh vs State Of Punjab & Ors on 4 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dalbara-singh-vs-state-of-punjab-ors-on-4-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dalbara Singh vs State Of Punjab & Ors on 4 October, 2008 - 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