State
Of Haryana and Anr Vs. Shri Om Prakash [2006] Insc
387 (10 July 2006)
Arijit
Pasayat & Altamas Kabir Arijit Pasayat, J.
The
State of Haryana calls in question correctness of the judgment rendered by a
Division Bench of the Punjab and Haryana High Court holding that the respondent
was entitled to pension in terms of Rule 4(iii) of the Punjab Government
National Emergency (Concession) Rules, 1965 (in short the 'Rules'). A writ
petition was filed by the respondent before the High Court claiming that he is
entitled to pension taking into consideration the services rendered by him in
the Armed Forces during the period when emergency was proclaimed.
Placing
reliance on Rule 4 (iii), the aforesaid claim of the respondent was declined by
the appellant. It was stated that there was a gap of more than three years
between the date of discharge from the Armed Forces and his date of appointment
as Veterinary Live Stock Development Assistant.
In the
writ petition filed the respondent re-iterated his claim for pension. According
to him he fulfilled the conditions and therefore he was entitled to pension.
The State reiterated its stand that since there was a gap of more than three
years, he was not entitled to any pension. The High Court held that the
respondent was entitled to pensionary benefits because the services rendered by
him during the period of his military service when emergency remained
proclaimed shall be counted in addition to the qualifying service rendered by
him in civil employment for the purpose of determining pensionary benefits. A
direction was given to work out the details and grant the benefits.
In
support of the appeal, learned counsel for the State submitted that the High
Court did not correctly interpret Rule 4(iii) of the Rules though the rule was
noticed. A bare reading of the stipulated condition in the said rule makes the
position clear that only if there was a gap of less than three years the
benefit is available. Learned counsel for the respondent on the other hand
supported the judgment.
In
order to appreciate the rival stands Rule 4(iii) needs to be quoted. The same
reads as follows:
-
-
"Increments
Seniority and Pension:- Period of Military service shall count for increments,
seniority and pension as under:- Pension: The period of military service
mentioned in Clause-I shall count towards pension only in the case of
appointments of permanent service or post under the Govt.
subject
to the following conditions:
-
The person
concerned should not have earned a pension under military rules in respect of
the military service in question.
-
The period, if
any, between the date of discharge from military service and the date of
appointment to any service or post under the Government shall count for pension
provided such period does not exceed one year.
Any
period exceeding one year, but not exceeding 3 years may also be allowed to
count for pension in exceptional cases under the orders of the
Government." A bare reading of the provision makes the position clear that
for the purpose of computing the period of permanent service, two conditions
are to be kept in view. First is that the person concerned should not have
earned a pension under Military Rules in respect of the military service in
question.
The
second condition in fact has two parts. For the purpose of working out the
entitlement, the period if any between the date of discharge from military
service and the date of appointment to any service or post under the Government
shall count for pension automatically if such period does not exceed one year.
But if
the period exceeds one year but does not exceed three years, the period may be
allowed to be counted in exceptional cases. In other words, the Government must
pass an order holding that the case was an exceptional one and, therefore,
instead of period of one year, period upto three years could be reckoned for
the purpose of computation. If the period is more than three years, there is no
scope for including the same for the purpose of working out the pensionary
entitlements.
Learned
counsel for the respondent submitted that there is no dispute that the date of
discharge is 13.6.1967 and the appointment was made in the year 1972. But the
process for selection had started in 1970. It is urged that his services were
regularized from 1972 after he had undergone military service.
The
aforesaid plea is clearly untenable in view of the clear language of Rule
4(iii) as quoted above. There being no dispute that the appointment was made in
1972. It is irrelevant as to when the process of selection had started or when
the respondent had undergone training as claimed. The language of Rule 4(iii)
is very clear to the effect that the period has to be reckoned between the date
of discharge upto the date of appointment. When the period is undisputedly more
than three years respondent is not entitled to pensionary benefits in terms of
Rule 4(iii) and the High Court erred in holding otherwise. The impugned order
of the High Court is set aside.
The
appeal is allowed. But there shall be no order as to costs.
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