PUNJAB STATE ELECTRICITY BOARD, PATIALA AND ANR.versusSURJIT SINGH BRAR

  PUNJAB STATE ELECTRICITY BOARD, PATIALA AND ANR.                        A
                          v.
                 SURJIT SINGH BRAR

                        NOVEMBER 18, 1996

           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                         B

     Service Law

     Punjab Government National Emergency (Concession) Rules, 1965:
Rules 2 and 4.
                                                                          c
     Demobilised Armed Forces Personnel (Reservation of Vacancies in
the Punjab Non-Technical Service) Rules, 1968;

       Ex-servicemen quota-Claim for benefit of increments and seniority
on re-employment in State service on the basis of service during second D
 Emergency (1971 War)-Respondent joined the Army in May 1963 and
 was discharged from military service in September 1973-Appointed in
 1979 as L.D.C. against ex-servicemen quota and granted benefit of
 increments and seniority in terms of Rules 2 and 4 of 1965 Rules-
Subsequently realising the mistake that respondent was not entitled to
increments, the benefit was withdrawn in 1988-Suit by respondent dismissed E
 by trial Court-Appellate court and High Court allowed the claim-Held,
 in order to avail concession on the basis of services during second
 Emergency, the candidate must be a government servant having been called
for the military service during the second Emergency-The person who
joined the sen•ice during period offirst Emergency is not entitled to claim F
the benefit ofthe period ofservice rendered during the second Emergency-
 Respondent was not entitled to the increments which were rightly withdrawn.

     Ex Captain A.S. Parmer and Ors. v. State of Haryana and Ors.,
(1968) LAB IC 894, relied on.
                                                                          G
    (Ex. Capt.) Randhir Singh Dhull v. S.D. Bhambri and Ors., (1981 (
2 sec 338, held no longer a good law.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 15073 of
1m.                                                                       H
                                  723
    724                    SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A        From the Judgment and Order dated 7.10.93 of the Punjab and
    Haryana High Court in R.S.A. No. 896 of 1993.

          Swarup Singh and Ms. Kirti Misra for the Appellants.

          Pradeep Misra for the Respondent.
8
          The following Order of the Court was delivered :

          Leave granted.


c         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 and Haryana made on October 7,
    1993 in RSA No. 896/93.

D       The admitted facts are that the respondent had joined military service
  after the declaration of Indio-China War. Emergency was declared on
  October 26, I 962. The respondent joined the Army on May 25, 1963. The
  Government of Punjab exercising the power under proviso to Article 309 .
  of the Constitution passed the Punjab Government National Emergency
  (Concession) Rules, 1965 ( for short, the Rules). The Rules provided for
E 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 thereafter, 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
F the mistake that he was not entitled to two increments after the lndo-
  China Emergency was lifted, the same was recalled by order dated
  21.4. I 987. 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 lndo-Bangla War, the Government had
G declared the Emergency on December 3, 1971 which was lifted on March
  22, I 973. 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
H dismissed the same. Thus, this appeal by special leave.
             PB. STA TE ELECTRICITY BD. v. S.S. BRAR                 725


      The contention raised by the learned counsel for the appellant is that A
under the Rules, the personnel who rendered the military service during
Emergency of lndo-China war 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, lndo-Bangala War, the period
of said service would not be ~ounted under the Rules. We find force in the
contention. This question, in the first instance, was considered by this D
Court in fa. Capt. Randhir Singh Dhull v. SD. Bhambri and Ors., [1981]
2 SCC 338 and this Court had granted the benefit. The same was reviewed
by this Court in Ex. Captain A.S. Parmar and Ors. v. State of Haryana
and Ors., (1968) LAB. IC 894 wherein this Court extracted the definition
of the military service which reads as under:
                                                                             c
             "Definition: For the purposes of these rules, expression
             military service, means enrolled or commissioned service in
             any of the three wings of the Indian Armed Forces (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     D
             on the 26th October, 1962.or such other service as may
             hereafter be declared as military service for the purpose of
             these rules. Anx period of military training followed by
             military service shall also be reckoned as military service."

             "4. Increments, seniority and pension, Period of military       E
             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,    F
             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."                                             G

       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 our notice. H
    726                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A 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
  of first Emergency is not entitled to claim the benefit of the period of
  service rendered during the second Emergency. The learned counsel for
B the respondent placed reliance on the Circular Letter No. 325 Sil (3 )· 72
  of 5866 dated February 24, I ~72 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 in
  paragraph 3, have also extended the same benefit and, therefore, the
  respondent is entitled to the benefit thereof. We find that there is no force
C 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 also does not apply to the respondent
  because he was not in Government Service before he joined the military
D service which reads as under:

                  "The Punjab Government have decided that the civil
                  Government employees who are/have been called for militar)·
                  service during the present Emergency shall be eligible to the
                  concessions enjoined in the Punjab Government National
E                 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 indicates that the candidate must be a
  Government servant having been called for the military service during the
F second Emergency; such Government servant 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 Pubjab Non-Technical Service)
  Rules, 1968. Under these circumstances, the respondent is not entitled to
G two increments 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 stands
    dismissed. No costs.

H R.P.                                                         Appeal allowed.