O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the judgment of the learned single judge of the High Court of Punjab & Haryana made on October 7, 1993 in RSA No, 896/93.
The admitted facts are that the respondent had joined military service after the declaration of Indio-china War. emergency was declared on October 26, 1962. The respondent joined the Army on May 25, 1963. The Government of Punjab exercising the power under proviso the Article 309 of the Constitution passed the Punjab Government National Emergency (Concession) Rules, 1965 (for short, the ’Rules’). The Rules provided for benefit of pay and seniority to ex-servicemen re-employed in civil services. the respondent was discharged from military service on September 24, 1973 and there after, he was appointed in January, 1979 as L.D.C. in ex-servicemen quota. He was granted the benefit of the increments and seniority in terms of Rules 2 and 4 of the Rules, Subsequently, realising the mistake that he was not entitled to two increments after the Indo-China Emergency was lifted, the same was recalled by order dated 21.4.1987. After issuing the notice, they withdraw the benefit on February 18, 1988. Calling in question, the said action of the appellants, the respondent filed a civil suit on April 27, 1988. It may be relevant, at this juncture, to note that during Indo-Bangla War, the Government had declared the Emergency of December 3, 1971 which was lifted on March 22, 1973. Consequently, the respondent has claimed the benefit of seniority and pay for the period of service rendered during the period of second Emergency. The trial Court dismissed the suit but on appeal the Additional District Judge allowed the appeal and decreed the suit and granted the benefit of two increments. When second appeal was filed, the High Court dismissed the same. Thus, this appeal by special leave.
The contention raised by the learned counsel for the appellant is that under the Rules, the personnel who rendered the military service during Emergency of Indo-China was alone is entitled to the benefit. Though the respondent continued after the lifting of the first Emergency and during the period of second Emergency, namely, Indo-Bangala War, the period of aid service would not be counted under the Rules. we find force in the contention. This question, in the first instance, was considered by this Court in (Ex.Capt.) Randhir Singh Dhull vs. S.D. Bhambri & Or. [(1968) LAB. IC 894] wherein this Court extracted the definition of the military service which reads as under:
"Definition: For the purpose of
these rules, expression military
service, means enrolled or
commissioned service in any of the
three wings of the Indian Armed
Force (including services as a
warrant officer) 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
hereafter ba 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) Increment- 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
as is prescribed the minimum age
shall be as laid down in rules 3.9,
3.10 and 3.11 of the Punjab Civil
Services Rules Volume II. This
concession shall, however, be
admissible only on first
appointment."
This Court had held that the words emphasised clearly showed that it is only the service rendered during the period of Emergency that would be taken into account and not any other period. No doubt, there is also provision for other service being declared as military service, but no order of the Government making such declaration has been brought to out notice. Thus, it could be seen that this Court has settled that the military service would be the service rendered during the first Emergency unless there is any further declaration under the Rules given by the State covering the second Emergency. The personnel who joined the service during the period to first Emergency is not entitled to claim the benefit of the period of service rendered during the second Emergency. The learned counsel for the respondent placed reliance on the Circular Letter No. 325 (SII (3) - 72 of 5866 dated February 24, 1972 and contended that the Government of India in paragraph 2 thereof, has issued the benefit of military service to those who continued under the first Emergency. The State Government is paragraph 3, have also extended the same benefit and, therefore, the respondent is entitled to the benefit thereof. We find that there is not force in the contention. Para 2 thereof relates to the Central Government Servants who have joined the military service during second emergency and continued thereafter became entitled to the benefit. Admittedly, the respondent is not a Central Government Servant and, therefore, para 2 thereof has no application. Para 3 in Government Service before he jointed the military service which reads as under:
" The Punjab Government have
decided that the civil Government
employees who are/have been called
for military service during the
present Emergency shall be eligible
to the concessions enjoined in the
Punjab Government National
Emergency (concessions) Rules, 1965
read with the Demobilised Armed
Forces Personnel (Reservation of
Vacancies in the punjab Non-
technical service) Rules, 1968."
A reading thereof clearly indicated that the candidate must be a government servant having been called for the military service during the second Emergency; such Government servant shall be eligible to the concessions enjoined in the Punjab government National Emergency (Concessions) Rule, 1965 read with the Demobilised Armed Forces Personnel (Reservation of vacancies in the Punjab Non-Technical Service) Rules, 1968. Under these circumstances, the respondent is not entitled to two increment which were wrongly given and rightly withdrawn.
The appeal is accordingly allowed. The orders of the High court and the District Judges stand set aside and the suit of the respondent stand dismissed. No costs.