PETITIONER:
STATE OF PUNJAB & ANR.
Vs.
RESPONDENT:
CHARANJI LAL GOAL
DATE OF JUDGMENT: 09/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
This appeal by special leave arise from the judgment of the Punjab and Haryana High Court made on July 27, 1979 in Writ Petition No.3450 of 1979.
Undisputed facts are that the respondent had initially joined as Sub-Inspector with Professional Tax (Finance Department) on November 7, 1962. During emergency, he had joined as Commissioned Officer in the Army on October 26, 1963 and was released from the Army on September 18, 1969. Subsequently, as he as released Army personnel had applied for and was selected as Taxation Inspector and joined the services on January 29, 1970. He was given the benefit of seniority w.e.f. October 26, 1963, the date on which he joined the Army as Commissioned Officer. Later on, for direct recruitment for the post of Assistant Excise and Tax Officer, when was published by the Public Commission, he had appeared for and was selected in 1972 as Assistant Excise and Tax Officer. He took the stand in the writ petition Rule 4(II) of the Punjab Government National Emergency (Concession Rules), 1965 (hereinafter referred to as ’Rules’) would be applicable to him and the High Court directed to give him seniority from October 26, 1963 and consider him with all consequential benefits. Thus, this appeal by special leave.
The only question is: whether the respondent is entitled to the benefit of seniority from October 26, 1963 for the second time, when he had already joined as Taxation Inspector on January 29, 1970 and had availed the benefit of the previous service. Further when subsequently he was appointed as Assistant Excise and Tax Officer in 1972 whether Rule 4 would apply which reads thus:
Increments, seniority and pension:
Period of military service shall
count for increments, seniority and
pension as under:
(i) Increments:- 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
age 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.
(ii) Seniority:- The period of
military service mentioned in
clause (1) shall be taken into
consideration for the purpose of
determining the seniority of a
person who has rendered military
service.
(iii) xxx xxx xxx
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
5. Seniority, promotion, increment
pension and leave of Government
employees:-
The period spent on military
service by a Government employee
shall count for seniority
promotion, increment and pension in
the service or post held by him
immediately before his joining
military service. A permanent
Government employee who renders
military service, shall earn leave
during such service according to
the leave rules applicable to him
immediately before his joining
military service. A temporary
Government employee shall during
military rules in all respects. The
employee concerned shall be
entitled to proforma promotion in
his parent department under the
’next below’ rule and also to
seniority in higher posts to which
he would otherwise have been
entitled if he had not joined
military service."
A reading of these Rules and Punjab Government Memorandum dated February 28, 1973 would clearly indicate that the period of military service mentioned in clause (i) namely the period spend by the personnel on military service after attaining the minimum age for appointment to any service or post to which he is appointed shall count for his promotion for seniority as far the rules 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume II.
Rule 5 of the Rules indicates that seniority promotion, increment, pension and leave of Government employee will be available to any Government employee who had already in service of the State Government but subsequently joined the military service. The entire period spent in the military service will be tagged for the purpose of his seniority, promotion, increment, pension and leave of the Government employee.
The question then is: whether the respondent is entitled to both the benefits? It is seen that though the respondent had joined the State Services as Assistant Sub- Inspector (Professional Tax) Finance Department on November 7, 1962, later he joined military service on October 26, 1963. He did not join, after release from the army, in the post as Sub-lnspector (Professional Tax) Fiance Department. Resultantly, Rule 5 has no application in that behalf. After his release from the Army on September 19, 1969, he had applied for and was selected as Taxation Inspector and joined the services on January 29, 1970. As a consequence, he was given the benefit of seniority under Rule 4(II) from October 26, 1963. While he was continuing in service, Direct Recruitment was advertised for appointment as Assistant Excise and Tax Officer. He had applied for and was selected, he was appointed as Assistant Excise and Tax officer in 1972. As he had already availed of the benefit of tagging his services as Taxation Inspector and the services rendered in the Military as a Taxation Officer from October 26, 1963 to September 19, 1969, he is not eligible to again claim for tagging the same period when it was directly recruited as Assistant Excise and Tax Officer since he has already availed the benefit and benefit stood exhausted. This question was considered by this Court in S.B.Dogra vs. State of Himachal Pradesh and Ors. [(1992) 4 SCC 455 at page 461. This Court had held thus:
"The two petitioners in that case
had served the Indian Army for more
than five years before they joined
the Haryana Government as Assistant
Engineers against posts reserved
for ex-emergency Commissioned
Officers. The Government of Punjab
had before the formation of the
State of Haryana made statutory
rules under Article 309 of the
Constitution called the Punjab
National Emergency (Concession)
Rules, 1965. Rule 2 defined
’military service’ to inter alia
mean 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 on
October 26, 1962. Rule 3 provided
for the relaxation of the
requirements of age and
qualification with which we are not
concerned in the present case. Rule
4(ii) which is relevant for our
purpose provided thus:
"4.(ii) Seniority ; The period of
military service mentioned in
clause (i) shall be taken into
consideration for the purpose of
determining the seniority of a
person who has rendered military
service."
This concession was, however,
admissible on first appointment
only. Rule 5 further provided that
the period spent on military
service shall count for seniority.
promotion, increment and pension in
the service or post held by him
immediately before his joining
military service. Thus the two
petitioners became entitled to have
their seniority fixed according to
the above rules on their
appointment as Assistant Engineers.
However, the gradation list
prepared by the Government did not
reflect the benefit of military
service weightage as per
theserules. The two
petitionersalleged that the State
of Haryana with a view to deny the
benefit to them amended the rules
retrospectively and added a proviso
as under:
"Provided that a person who has
availed of concession under sub-
rule (3) of Rule 3 shall not be
entitled to the concession under
this clause."
By notification dated August 9,
1976, the definition of ’military
service’ was amended which
amendment was challenged along with
other grievances in the High Court.
However, both the writ petitions
were dismissed which gave rise to
the appeal, the judgment in which
case wasrelied on by the Tribunal.
The core question which arose for
consideration by this Court was
whether the amended rule was
constitutionally valid even though
it was made
applicableretrospectively which had
the effect of taking away vested
rights. This Court struck down the
amended Rule 4(ii) as well as the
notification by which the
definition of the expression
’military service’ was altered. It
will thus be seen that the
essential question was not
regarding the actual fixation of
seniority. The note below the
advertisement and the language of
the unamended definition of the
expression ’military service’ read
with Rule (ii) made it clear that
the service referred t was the one
rendered during the period of
operation of the proclamation of
emergency made by the President
under Article 352 of the
Constitution on October 26, 1962.
It will become immediately apparent
on a mere comparison of the 1965
Punjab Rules, particularly the
definition clause read with Rule
4(ii). with Rule 5(1) of the 1972
Rules that the language of the two
rules is not identical and while
the former limits its scope to
"during the period of operation of
the proclamation of emergency",
there are no such words of
limitation to be found in Rule 5(1)
of the 1972 Rules nor has such an
inference been attempted to be
drawn from other provisions in the
1972 Rules. The Tribunal was,
therefore, in error in resting its
decision on the ratio of A.S.
Parmar case which turned on the
language of the Punjab rules
applicable to Haryana which are not
shown to be in pari materia with
the Himachal Pradesh rules. The
Tribunal was, therefore, wrong in
confining the benefit under Rule
5(1) to the period of Dogra’s
actual service in the Army during
the emergency."
This Court had held that this concession was, however, admissible for first appointment. Only Rule 5 provide that the military service shall count for seniority promotion, increment and pension in the service or post held by him immediately before he joined the military service. Thus the petitioners therein became entitled to have seniority first according to the above rules on the post of Assistant Sub- Inspector.
Since he has already availed of all the benefits of seniority as Taxation Inspector and got tagged to his service his services rendered in the military services between October 26, 1963 to September 19, 1969 as Taxation Inspector, the same period cannot be availed of in his subsequent appointment though in a higher cadre, namely, the gazette cadre Assistant Excise and Taxation Officer.
The appeal is accordingly allowed and the order of the High Court stands set aside. The respondent’s claim will be determined in accordance with the rule. The writ petition is accordingly disposed of. No costs.