DHAN SINGH AND ORS. ETC. ETC.versusSTATE OF HARYANA AND ORS.

                  DHAN SINGH AND ORS. ETC. ETC.                                 A
                               v.
                   STATE OF HARYANA AND ORS.

'                            DECEMBER 5, 1990

     (LALIT MOHAN SHARMA AND M. FATHIMA BEEVI, JJ.)                             8

          Constitution of India, 1950: Articles 14, 16, 309--Amendments
    to Rules 2 and 4(ii) of Punjab Government National Emergency (Con-
    cession) Rules, 1965-Classification-Persons who joined before/dur-
    ing emergency-Reasonableness and validity of-Government's power
    to amend the Rules and to withdraw concessions-Interference of              C
    Court-When.

          The Punjab Government National Emergency (Concession)
    Rules, 1965: Ru/es 2 and 4(ii)-Constitutional validity· of-Benefit of
    military service-Those who joined before proclamation of emergency
    -Whether entitled to,                                                 D

            The appellants and petitioners are ex-servicemen re-employed in
     U1e senice of Respondent State. They served the Indian Army during
     emergency from 1962 to 1968. ;\ppellants 4, S, 7 and 8 joined theArmy
     dud'1!1 emergency while the other appellants and writ petitioners joined
     before the emergency. Certain benefits like increments, seniority, E·
     l!l!nsion etc .. were extended to such. persons by the Respondent-State by
     adopt1'1!1 the Pwtjab Government National Emergency (Concessions)-
     RQles, 1965. However, by notifications dated22.3.1976, 9.8.1976 and
     S. U .1976 certain amendments to Rules 2 and 4 were introduced by the
     Respondent State with retrospective effect from 1.11 •.1966 resulting in
     denial of st1ch benefits to them. Some of the amendmeLts were cha!· F
    lenged before this Coim and were declared ultra vires the Constitution of
     India.

            On 4.8.1986 the Respondent-State issued instructions to the effect
    that tl)e ex-servicemen employees who joined the Civil Service after the
    lss11,e of the notifications would continue to be governed by the same. G
    The appellants and some of the writ petitioners who had joined govern-
    ment service since December 1976 were denied the benefits under· the
    Rules, since under the amended Rules only those who were enrolled or
    coml)lissioned· during emergency were eligible for such benefits, and·not
    those wiio joined the Army before the emergency.
                                                                                H
                                      423
    424         SUPREME COURT REPORTS                 [1990] Supp. 3 S.C.R.

          The Writ Petition filed by the appellants before the High Court
A   was dismissed and they have preferred the present appeal. The Writ
    Petitioners admittedly joined the Army before the emergency, have
    directly challenged the notifications in this Court.

          It has been conteuded'inter alia-that the amendment confining the
B   military service to those who joined during emergency and denying the
    same to those who joined prior to the emergency was unreasonable and
    arbitrary and violative of Article 14 of the Constitution of India and
    that the differential treatment meted out to persons who joined earlier
    and were released later, but served during emergency, amounts to
    denial of equal opportunity in the matter of employment and thus viola-
    tive of Article 16 of the Constitution of India.
c
          Allowing the appeal in part, and dismissing the Writ Petitions,
    this Court,

          HELD: 1. The State could amend the Rules and withdraw the
D   concession in exercise of the power conferred under Article 309 of the
    Constitution. It is open to the State to lay down any rule for determin-
    ing seniority in service and the Court cannot interfere unless it results in
    inequality of opportunity among the employees belonging to the same
    class. When a rule is challenged as denying equal protection, the ques-
    tion for determination by the Court is not whether it has resulted in
F   inequality but whether there is some difference which bears a just and
    reasonable relation to the object of legislation. Mere differentiation or
    inequality of protection does not per se amount to discrimination within
    the inhibition of equal protection clause under Article 14. To attract the
    attention of the clanse, it is necessary to show that the selection or
    differentiation is unreasonable or arbitrary and that it does not rest on
F   any rational basis having regard to the object which the Legislature has
    in view. The Court has to examine whether the classification can be
    deemed to rest upon differentia discriminating the persons or things
    grouped from those left out and whether such differentia has a reaon-
    able relation to the objects sought to be achieved irrespective of whether
    the rule is intended to apply to person or thing or to a certain class of
G   persons or things. Therefore, the policy or the object of the legislation
    are the relevant considerations. [4310-G]

          2. The young persons who have joined the military service during
    the national emergency and those who were already in service and due
    to exigencies of service had been compelled to serve during the
H   emergency form two distinct classes. The appellants and the petitioners
                 DHAN SINGH v. STATE OF HARYANA                      425

 who joined the Army before the proclamation of emergency, had chosen
 the career volnntarily and their service duriog emergency was as a A
 matter of course. They had no option or intention of joioiog the govern-
ment service duriog the period of emergency as they were already serv-
ing in the Arm. The persons who enrolled or commissioned duriog the
emergency, on the other hand, had no account of the call of the nation
joined the Army at that critical juncture of national emergency to save B
the motherland by takiog a greater risk where danger to the life of a
member of the armed forces was higher. They include persons who
could have pursued their studies, acquired higher qualifications and
joined a higher post and those who could have joined the govermnent
service before attainiog the maximnm age prescribed and thereby
gained seniority io the service. Forgoing all these benefits and avenues,
they joine the Army keeping io view the needs of the country and c
assurances contained in conditio11:s of service in executive instructions.
The latter form a class by themselves and they cannot be eqnated to
those who joined the Army before the proclamation of the emergency.
Benefits had been promised to snch persons who heeded to the call of
the nation at that critical juncture. Older man by joioiog the military D
service lost·chance of joining other government service and when he
joins such service on release from the Army younger man had already
occupied the posts. To remove the hardship, the benefit of military
service was sought to be given to those young persons who were enrol-
led/commissioned duriog the period of emergency forgoiog their job
opportunities. The differential is, therefore, intelligible and has a E
direct nexus to the objects sought to be achieved. The petitioners
cannot, therefore, challenge the rule as discriminatory or arbitrary.
Such of those appellants and the petitioners who have joined the Army
before the proclamation of the emergency are not, therefore, entitled
to the benefit of military service as per the Emergency Concession
Rules. [432B-G]                                                            F

      K. C. Arora & Ors. v. State of Haryana & Ors., [1984] 3 SCC 281;
State of Gujarat v. Raman Lal Keshav Lal Soni, [1983] 2 SCC 33; Raj
Pal Sharma & Ors. v. State of Haryana & Ors., [1985] (Supp.) SCC 72,
referred to.
                                                                           G
     Since the proviso to Rule 4(ii) has already been struck down io Raj
Pal Sharma's case, such of the appellants who had been released from
the military service on compassionate grounds are entitled to the
benefits of their military service ..[432H]

     Raj Pal Sharma & Ors. "· State of Haryana & Ors., [1985]              H
(Supp.) SCC 72, applied.
    426          SUPREME COURT REPORTS                 [t990J Supp. 3 s.c.R.

         The petitioner in Writ Petition No. 959 of 1989 is not entitled to
A   any further relief as the service of the petitioner after the lifting of the
    emergency could not, therefore, couut for determining h.is seniority and
    whatever benefits he is entitled to had been granted earlier. [433A-B]

          Ex-capt, Randhir Singh Bhul/ v. S.D. Bhambri & Ors., [1981] 3
B   SCC 55; Ex-Capt. A.S. Parmer & Ors. v. State of Haryana & Ors.,
    [1986] (Suppl.) SCC 283, relied on.

        CIVIL APPELLATE/ORIGINAL                      JURISDICTION: Civjl
    Appeal No. 1060 of 1990.

        From the Judgment and Order dated 11. 7.1988 of the Punjab &
c   Haryana High Court in C.W.P. No. 4725 of 1988.
                                       WITH
          W.P. (Civil) No. 1159 and 959 of 1989.

D        Awadh Behari, Prem Malhotra, Avrind Kumar and Mrs. Laxmi
    Arvind for the Appellants.

          S.P. Goel and Mahabir Singh for the Respondents.

          The Judgment of the Court was delivered by
E
          FATHIMA BEEVI, J. Civil Appea! No. 1060 of 1990 is directed
    against the judgment and order dated 11. 7.1988 of the High Court of
    Punjab and Haryana dismissing the Civil Writ Petition No. 4725 o{
    1986 filed by the appellants.

F         The appellants are ex-servicemen re-employed in Government
    service in the State of Haryana. They served in the Indian Anny pur-
    ing the period of operation of the proclamation of emergency made py
    the President of India under Article 352 of the Constitii(ion of India on
    October 26, 1962 and lifted on January 10, 1968. The Punjab Govern-
    ment National Emergency (Concessions) Rules, 1965, (Hereinafter
G   referred to as the Emergeny Concession Rules) in force w.e.f.
    November 1, 1966 provided certain benefits to ex-army personnel who
    are re-employed in the matter of increment, seniority, pension etc.
    The Rules were adopted by the State of Haryana. The Government of
    Haryana vide Notifications dated 22.3.1976, 9.8.1976 and 5. H.1976
    introduced amendments to these Rules. The appellants are denied tqe
H   benefits under the Rules in view of sucq amendments. The writ peti-
      Df!AN S!NGf! v. sTA.TF Of tjARYANA lfA.THfl>fA ll/l!JYJ, L)          427

tion filed by the appef!ants chal!e11ging the ~mrn4ments was >\jslT)issed         A
tn limine by t!ie imp4gqed jµ<Jgment 9Mec! H· 7. ]988. ·

       Rule 4 of tile EmerneJ!cY Conc.essions ~»I.es as j! prgiqally stooq,
in so far as is relevant for the pl!rpose pf!hes,e cas,es rea<!s as fp)lows:

            "Rule 4. Increrneni&, seniPri1Y M!,cl pemiP1J,-J.',eriocl of
            military service shall cpµ11t fPr inpremep!s, seniority and
            pensi011 as unfier:-
                                                                    I
            Ol I11creme111s: T.he periPl:J speJ!t PY a p,ersor. ofl military
            service, af(er a(!ail)il!g tpe mirimµrn age prescriped for
            appojntmenl to apy service or p.ost, IP wpich he is
            appoimed, shall co1Jnt for increlTJents ................. .




                                                                                  p
            This concessiPn s!J~JI, hmve¥er, Re a<lmjssible .only on first
            appoiptm,eq(.

            (ii) Sel)jority: Tne period of !)1ijjtary service mel)tioneci in
            claus.e (i) snail re 1a~e11 into col!si<!eration f<n the purpose
            of determi11i11g the seniori(y flf a person wM h.as rendered
            military service.                     ·                               .E

            (u1) ............................................... "

For the purpose of the ~illes the expr.essjon 'mimary service' has beeq
.defined ip Rule 2 wbicb re~s as µq(jer:
                                                                                  f
            "2. Definition.-f,or th.e pµrposes of these rules, the
            expression 'miiit.ary service' m.e,ans .enmlled or commis-
            sioned l)eryjce in ~'W ,of tile lhree l"ings of the Jndi~n
            Armed For,ces Gnc)w:ling service .as a Warra.nt Officer)
            rendered by ~ pers.oµ dwirig .tl)e perio,<1 of operation of the
            proclamation of emergency made by the President under
            Article 352 of tl)e C.onstitµ!ion of In.dia on October 26,
            )962 or sµc!) .otlJer servic.e as 111ay i)erl'~fter b.e declared as
            military service for tl).e p\!rposes .of these rules. Any period
            pf 111i)itary training followed by military service s!)all also
            be reckoned as military servic.e."
                                                                                  H
    428        SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

          By the first amendment vide Notification No. GSR 77/Const.i
A   Art. 309/ Amend( 1)/76 dated 22.3.1976, a proviso was added to Rule
    4(ii) which reads as under:

               "Provided that a person who has availed of concession
               under sub-rule (3) of Rule 3 shall not be entitled to the
B              concession under this clause."

    By the second amendment vide Notification No. GSR 182/Const./Art.
    309/Am~nd/(2)/76 dated 9.8.1976, the definition of the expression
    'military service' was substituted. It reads:

               "2. Definition.-For the purposes of these rules, the expres-
c               sion 'militar'y service' means the service rendered by a
                person, who had been enrolled or commissioned during the
                period of operation of the proclamation of emergency
                made by the President under Article 352 of the Constitu-
                tion of India on October 26, 1962 in any of the three wings
D               of the Indian Armed Forces (including the service as a
                Warrant Officer) during the period of the said emergency
                or such other service as may hereafter be declared as mili-
                tary service for the purpose of these rules. Any period of
                military training followed by military service shall also be
                reckoned as military service."
E
    These amendments were made with retrospectice effect from
    1.11.1966 in exercise of the power under Article 309 of the Constitution.

        By the No,tification dated 5.11. 1976, the Rule was further
    amendment by adding a proviso to Rule 4(ii) which reads as under:
F
                "Provided that a person who has been released from mili-
                tary service on compassionate grounds shall not be entitled
                to any concession under thus rule."

    This amendment also with retrospective effect from I. l l. 1986 was
G   struck down as violative of Articles 14 and 16 of the Constitution in
    Raj Pal Sharma & Ors. v. State of Haryana & Ors., [1985] (Supp.)
    seen.
           Respondent State issued instructions vide letter No. 12/14/84-4
    GSII dated 4.8.1986 that the ex-servicemen, employees who joined the
H   civil service after the issue of these notification would continue to be
      DHAN SINGH v. STATE OF J:IARYANA [FATHIMA BEEVI, J.I           429

governed by these notifications. The appellants and the writ petitio-
                                                                            A
ners in Writ Petition No. 1159 of 1989 who joined government service
since December 1976 are accordingly denied the benefits under the
Rules. Under Rule 4 read with Rule 2 as amended, only those who are
enrolled or commissioned during the period of emergency are eligible
for the benefits under Rule 4. Ex-army personnel who joined the army
prior to 26.10.1962 cannot claim that service during the period             B
emergency should count for increment, seniority or pension.

       The appellants 4, 5, 7 and 8 had been enrolled or commissioned
during the period of the emergency but were released on compassio-
nate grounds. But for the proviso to Rule 4(ii) introduced by the
amendment vide Notification No. GSR 238. Const./ Art. 309/Amend
(3)/76 dated 5. 11. 1976, they would be entitled to the benefits provided   c
under Rule 4. In Raj Pal Sliarma & Ors. v. State of Haryana & Ors.,
[ 1985] (Supp.) SCC 72 at page 75, this Court observed as under:

           "All those persons released from military service constitute
           one class and it is not possible to single out certain persons   D
           of the same class for differential treatment. There appears
           to be no reasonable classification between the persons who
           were released on compassionate grounds and those who
           were released on other grounds and in this respect the
           petitioners have been deprived ()f _the equal opportunity.
           The amendment, therefore, is violative of Articles 14 and        E
           16 of the Constitution and, therefore. bad.··

       In view of the legal position thus stated, these appellants 4, 5, 7
and 8 are entitled to benefits under the Rule. The remaining appel-
lants have joined the army before 26.10.1962 but had served during the
period of emergency and were released or discharged only after the F
emergency was lifted. They had also joined the State service after the
first and second amendments were introduced. They have challenged
the second amendment vide Notification No. GSR 182/Const./Art.
309/Amend (2)/76 dated 9.8.1976 as violative of Articles 14 and 16 of
the Constitution. In K.C. Arora & Ors. v. State of Haryana & Ors.,
[1984] 3 SCC 281 the notifications dated 22.3.1976 and 9.8.1976 G
amending Rule 2 thus were challenged by ex-army personnel who had
joined the State service prior to the notifications. This Court said that
immediately on appointment of the petitioners as Assistant Engineers
they became entitled to get their seniority fixed giving them the benefit
of their military service. Following the_ decision in State of Gujarat_~.
Raman Lal Keshav Lal Soni, [ 1983] 2 SCC 33 this Court held that the H
    430         SUPREME COURT REPORTS                 [1990] Supp. 3 s.c.R.

    Ooverrit11eht of Haryatta ca11ntJt take away the accrued rights of the
A   petitiortets atid the a!Jpeilartts before it by makihg amendment to the
    Rules with reltUS!Jecliv& effect. the operative portion of the judgment
    reads as under:

                "For the foregoing discussion the writ petitions as well as
B               the appeals ate allowed and the orders of the High Court
                dated October 10, 1980 ate quashed and the impugned
                Rule 4(il) of the Punjall Government National Emergency
                (Concessions) Rules, 1965, as amended by the Haryana
                Governinetit Oazeite Notification No. GSR 77/Const/Art/
                309/Amend(l)/16 dated Marett 22, 1976 and the Notifica-
                tion No. OSR 182/t:onst/Art/309/Amend(2)/76 dated
c               August 9, 1976 ametidittg the definition of the expression
                'military service' in Rule 2, ate declared to be ultravires the
                Constiltiiiou, insofar as ihey affect prejudicially persons
                who had acquired rights as stated above. A writ in the
                nature of mandatnus is issued directing respondents I and 2
D               to prepare the seniority list afresh in the light of the deci-
                sion of this Coiirt taking into consideration the military
                service rendered by the petitioners as well as the ap-
                pellants."

    The question whether Rule 2 as amended is discriminatory and viola-
E   tive of Articles 14 and 16 t>f the Constitution was not specifically
    considered. the appellants other than 4, 5, 7 and 8 and the writ
    petitioners who have come before this Court under Article 32 of the
    Constitution catt succeed in their challenge only if it is made out that
    Rule 2 as amended is discriminatory and that these appellants and
    similarly situated persons are tlenietl equal protection under law and
F   equal opportunity.

          It has been tontencied that the amendment confining military
    service f6r those who joined during the operation of emergency bet-
    ween 26.10.1962 and IO. l.1968 and denying the same benefit of
    service to those who joined prior to the proclamation of the emergency
G   is unreasotiabie and arbitrary based on no classification and thus viola-
    tive of Article 14 of the Constitution of India. It is said that there is no
    rationale behind the definition of 'military service' by excluding the
    military personnel who also served during the emergency period. It is
    said that the differentiation is on the date of recruitment and the
    classification on the basis of date of recruitment is unreasonable and
H   unconstitutional and violative of Article 14 of the Constitution. The
      OHAN SINGH v. STATE OF HARYANA IFATHIMA BEEVI, J.l                  431

aj:lpeltartts stated that the ex-servicemen who joined the army during
                                                                                 A
the einergency and persons like the appellants who have joined the
common stream of service to perform the same duties form one class
atid it is tHlt perrttlssible to make any classification on the basis of their
origin. Such classification will be unreasonable and entirely irrelevant
to the object sought to be achieved and the classification is not
founded on any intelligible differentia according to the appellants. It is       B
submitted that those who served during the proclamation of the
emergency constitute one class in itself as far as duties, powers,
privileges and period of service during the emergency are concerned
arid the differential treatment meted out to the personnel who joined
earlier and were released later amounts to the deniai of equal
tij:lpottunity it! the matter of employment, and, thus violates Article
16. Tlie differentia on the basis of amending rules has no nexus to the          c
objective sought to be achieved, it is argued.
      We do not agree. The State couid amend the 1965 Rules and
Withdraw the concession in exercise of the power conferred under
Article 309 of the Constitution. It is open to the State to lay down any
rule for determining seniority in service and the Court cannot interfere D
unless it results in inequality of opportunity among the employees
belonging to the same class. When a rule is challenged as denying
equal protection, the question for determination by the Court is not
Whether it has resulted in inequality but whether there is some diffe-
rence which bears a just and reasonable relation to the object of legis-
lation. Mere differentiation or inequality of protection does not per se E
amount to discrimination within the inhibition of equal protection
Clause under Article 14. To attract the attention of the clause, it is
necssary to show that the selection or differentiation is unreasonable
or arbitrary and that it does not rest on any rational basis having
regard to the object which the Legislature has in view. The Court has
to examine Whether the classification can be deemed to rest upon F
differentia discriminating the persons or things grouped from those left
out and whether such differentia has a reasonable relation to the
objects sought to be achieved irrespective of whether the rule is
intended to apply to person or thing or to a certain class of persons or
things. Therefore, the policy or the object of the legislation are rele- G
vant consideration.
      On account of the external aggression by the Chinese forces in
the Indian territory, the emergency was imposed by the President of
india in 1962. In order to attract young men to join military service at
that critical juncture, the Central Government and the State Govern-
ments issued different circulars and advertisements on the radio and in H
    432         SUPREME COURT REPORTS                [ 1990] Supp. 3 S.C.R.

    the press promising certain benefits to be given to those young men
A
    who join the military service.

          The young persons who have joined the military service during
    the national emergency and those who were already in service and due
    IQ exigencies of service had been compelled to serve during the
B   emergency form two distinct classes. The appellants and the petitio-
    ners who joined the army before the proclamation of emergency, had
    chosen the career voluntarily and their service during emergency was
    as a matter of course. They had no option or intention of joining the
    government service during the period of emergency as they were
    already serving in the army. The persons who enrolled or commis-
    sioned during the emergency, on the other hand, had no account of the
c   call of the nation joined the army at that critical juncture of national
    emergency to save the motherland by taking a greater risk where
    danger to the life of a member of the armed forces was higher. They
    include persons who could have pursued their studies, acquired higher
    qualifications and joined a higher post and those who could have
D   joined the government service before attaining the maximum age pre-
    scribed and thereby gained seniority in the service. Forgoing all these
    benefits and avenues, they joined the army keeping in view the needs
    of the country and assurances contained in conditions of service in
    executive instructions. The later form a class by themselves and they
    cannot be equated to those who joined the army before the proclama-
E   tion of the emergency. Benefits had been promised to such persons
    who heeded to the call of the nation at that critical juncture. Older
    man by joining the military service lost chance of joining other govern-
    ment service and when he joins such service on release from the army
    younger man had already occupied the post. To remove the hardship,
    the benefit of military service was sought to be given to those young
F   persons who were enrolled/commissioned during the period of
    emergency forgoing their job opportunities. The differentia is, there-
    fore, intelligible and has a direct nexus to the objects sought to be
    achieved. The petitioners, cannot, therefore, challenge the rule as
    discriminatory or arbitrar. Such of those appellants and the petitioners
    who have joined the army before the proclamation of the emergency
G   are not, therefore, entitled to the benefit of military service as per the
    Emergency Concessions Rules.

          Since the proviso to Rule 4(ii) has already been struck down in
    Raj Pal Sharma's case (supra), such of the appellants who had been
    released from the military service on compassionate grounds are
H   entitled to the benefits of their military service.

                                                                                 1·
       DHAN SINGH v. STATE OF HARYANA IFATHIMA BEEVI. J.] 433

       The Petitioner in Writ Petition No. 959 of 1989 is not entitled to
                                                                              A
any further relief as is concluded by the earlier decision of this Court in
Ex-Capt. Randhir Singh Dhu// v. S.D. Bhambri & Ors., (1981] 3 SCC
55 and the clarification in Ex-Capt. A.S. Parmar & Ors. v. State of
Haryana & Ors., [ 1986] (Supp.) SCC 283 that it is only the service
rendered during the period of emergency that could be taken into
account and not any other period. In disposing of the review petition,        B
Chinnappa Reddy, J. observed as under:
            "Though the judgment in K.C. Arora's case appears to
            proceed as if the change was brought about in 1976 ·even in
            regard to the length of military service to be taken into
            account, that question was not actually decided. On the
            other hand, in R.S. Dhull v. S.D. Bhambri, (1981] 3 SCC           c
            55, referring to Rule 2, it was expressly stated by this Court
            that the concession in regard to seniority was admissible in
            respect of the military service rendered during the opera-
            tion of the emergency only and not for any military service
            after the termination of the emergency.
                                                                              D




                                                                              E
            It is, therefore, clear that military service rendered subse-
            quent to the lifting of emergency cannot be taken into
            account for the purpose of reckoning the seniority in the
            ciViI post."
The service of the petitioner after the lifting of the emergency could        F
not, therefore, count for determining his seniority and whatever
benefits he is entitled to had been granted earlier.
      Writ Petition Nos. 1159/89 and 959/89 are accordingly dismissed.
Civil Appeal No. 1060 of 1990 is partly allowed and a writ in the nature
of mandamus is issued directing the respondents 1 and 2 to give the
appellants 4, 5, 7 and 8 who joined the service during the period of          G
operation of the emergency the benefit of their military service. The
appeal is dismissed in other respects. In the facts and circumstances of
the case, we make no order as to costs.                                -

G.N.                                          Appeal partly allowed and
                                                     Petitions dismissed.