Holding

The respondent is not entitled to a civil‑service pension because his army service cannot be counted under the emergency rules and his civil service tenure is less than the required ten years.

Summary

Harbhajan Singh, a former Indian Army soldier who retired in 1987 and was drawing a defence pension, was re‑employed as a JBT teacher in the Punjab Education Department from 1994 to 2002. He applied for a civil‑service pension, arguing that his army service should be counted towards the ten‑year qualifying period required under the Punjab Civil Service Rules. The Accountant General rejected his claim, stating that his civil service tenure was less than ten years and that his defence service could not be counted because the Punjab Government National Emergency (Concession) Rules, 1965, only allow military service to be counted if the person joined during the emergency period (26 Oct 1962 – 9 Jan 1968). The High Court set aside the rejection, but the Supreme Court held that the respondent was not entitled to a civil pension as his army service began before the emergency and therefore cannot be counted, and his civil service period alone does not satisfy the statutory ten‑year requirement. Consequently, the appeal was allowed and the High Court order was set aside.

Issues considered

Whether defence service can be counted towards the qualifying service period for a civil‑service pension under the Punjab Civil Service Rules, 1970.
Whether the Punjab Government National Emergency (Concession) Rules, 1965, permit counting of military service that commenced before the proclamation of emergency.
Whether the respondent satisfies the minimum ten‑year service requirement for pension eligibility.
Whether a person drawing a defence pension can simultaneously claim a civil‑service pension.

Legislation cited

Punjab Recruitment of Ex-Servicemen Rules, 1982s. Rule 8

Subjects

pension entitlementex‑serviceman re‑employmentcivil service rulesemergency rulesmilitary service countingdouble pensionqualifying service periodstatutory interpretation

Judgment

'-(
A STATE OF PUNJAB AND ORS.
v.
HARBHAJAN SINGH AND ANR.

OCTOBER 31, 2007
B
[TARUN CHATTERJEE AND P. SATHASIVAM, JJ.]
>-.
'
'\.
1

Service Law-Pension-Entitlement-Ex-serviceman-Re-
employment on civil side-Employee getting pension and gratuity from
c defence-Claim.for pension on civil side-Denied on the ground ofnot
completing requisite period of service-Counting of defence service
denied-High Court directing grant of pension-On appeal, held:
Employee not entitled to pension contrary to statutory rules-Defence
'
service cannot be counted for the purpose of pension in view of
D emergency Rules since the employee hadjoined the defence service ~
prior to emergency period-Punjab Civil Service Rules, I 970-rr. 17. 3, ·'(-
I 7. 4 and I 7. 5-Punjab Government National Emergency (Concession)
Rules, I 965.
Respondent No. l,joined Indian Army on 13.9.1961 as a Sepoy.
E He, on getting teacher's training, was appointed as Education
Instructor. After his retirement, he got re-employed as JBT Teacher
in the State Education Department. He had received gratuity from
defence and was also drawing defence pension at the time of joining;
He submitted his pension case before his superannuatio~ a~ a >--·...
F teacher. It was rejected by the concerned authorities on the gr6ti~d ·
that the service rendered by him on civil side was less than ten years
and his defence service could not be. counted in the civil side.
Respondent No. 1 filed Writ Petition seeking relief of pension·by
counting his defence service. High Court allowed the Writ Petition.
G
In appeal, appellant-State contended that the respondent was )...._
not entitled to the pension as he had not requisite years of service;
and that his defence service could not be counted by virtue of Punjab
Government National Emergency Rules, 1965 as he had joined army
H 752
-- STATE v. HARBHAJAN SINGH 753

service in 1961 i.e. prior to the period of emergency i.e. 26.10.1962 A
to 9.1.1968. ·

Allowing the appeal, the Court
HELD: 1. Rules 7.13, 7.14 and 7.15 of Punjab Civil Service
Rules, 1970 make it clear that employee can draw pension mentioned B
therein, only if his initial pay plus pension does not exceed his
substantive pay at the time ofretirement. Further, if previous service
is counted, the pension remains in abeyance. It also shows that if
option is not exercised in three months, he cannot do so at a later
stage without the approval of the competent authority. The period C
rendered shall count towards the service only if person has not earned
pension, any bonus or gratuity paid is refunded to the State
Government. Admittedly, the respondent was getting pension. It is
also not in dispute that he received DCRG (gratuity).
[Para 10) (758-D, E, FJ D
2. As per the Emergency Rules, 1965, the service can be
counted only if the person joined during the emergency and not
before or after it. In view of the same, the respondent who had
admittedly joined the army on 13.09.1961 as Sepoy is not entitled
to the benefits of the provisions of the Punjab Government National E
Emergency Rules, 1965 while emergency was imposed on
26.10.1962. He is not entitled to get his "military service" counted
for pension on serving as civil servant when his case does not fall
.within the definition of "military service" which i~ service rendered
by a person during emergency. [Para 11) [759-C, D] F

Ram Janam Singh v. State of UP. and Anr., [1994) 2 SCC 622;
Chittaranjan Singh Chima and Anr. v. State ofPunjab and Ors., [1997)
11sec447, relied on.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5065 of G
2007.
From the final Judgment and Order dated 25.03.2004 of the High
Court of Punjab and Haryanaat Chandigarh in C.W.P. No. 6126 of2003.
H
754 SUPREME COURT REPORTS [2007] 11 S.C.R.

A Ajay Pal for the Appellants.
Shikha Roy Pabbi (for S.K. Sabharwal), Vikas, Asha G. Nair and
Anil Katiyar for the Respondents.
The Judgment of the Court was delivered by
B
P. SATHASIVAM, J. (I) Leave granted.
(2) This appeal is filed against the final judgment and order dated
25.03.2004 passed by the High Court of Punjab and Haryana in C.W.P.
No. 6126 of2003 whe1eby the High Court allowed the writ petition of
C the I st respondent herein.
(2) The brief facts in nutshell are as under:
• ~
Respondent No. I herein, who was a matriculate, joined as Sepoy
in the Indian Army on 13.09.1961. Respondent No.l improved his
D qualification and after obtaining one year teachers training at AEC Training
College & Centre, Panchmari, Madhya Pradesh, appointed as Education 1-
Instructor (Hawaldar) on 12.10.1967. He retired on 30.9.1987 as Naib
Subedar. His date of birth is 16.01.1944. He was 43 112 years old at the
time of his retirement. On 10.5.1988, respondent's name was sponsored
E by the Employment Exchange for the post of JBT Teachers in the Punjab
Education Department. He appeared for the interview but the selection
Committee refused to consider his case on the ground that he was not
fulfilling the qualification for the post. According to the respondent, the
training acquired by him during his service in the anny is declared as
F equivalent to the training required for the post of primary school teachers ~
..
as per Government instructions. By letter dated 9.8.1988, Director Public
Instructions informed the Director Sainik Welfare, Punjab that according
to directory of Education of Service Trades with Civil Trades and
Guide to Registration of Defence Services Applicants of employment
G Army Education Corps is equal to a Primary School Teacher in Civil
Trade. On 29.8.1988, respondent submitted a representation to the
~
recruitment Committee for considering his case in view of the instructions
issued by the Director Public Instructions. On 1.08.1992, when the
Education Department, Punjab again invited applications for the post of
H JBT Teachers by issuing an advertisement, he applied for it and was
) STATE v. HARBHAJAN SINGH [P. SATHASIVAM,J.] 755
>r
selected. On 31.3.1994, respondent got an appointment letter and he A
joined at Govenunent Primary School, Ludhiana on 22,4.1994. At the
time of joining, he was drawing his defence pension and he was allowed
to draw his defence pension. He was to retire on 31.1.2002. Before
superannuation, on 10.10.2001, the respondent submitted his pension case
to the Accountant General, Punjab through Block Primary Education B

.. A
Officer, Pakhowal District, Ludhiana. The Accountant General, Punjab
rejected the case of the respondent for pension on the ground that the
service rendered by him on the civil side is seven years, nine months and
nine days which is less than 10 years and his service rendered in defence
cannot be counted in the civil service as there is a gap of more than three c
years. On 31.8.2002, the respondent served a legal notice of demand
for granting him gratuity and pension in civil side by taking into
consideration his service in the army. In February, 2003, the respondent
filed writ petition before the High Court praying for quashing of the order
dated 2.11.2001 of the Accountant General, Punjab and for counting the D
service rendered by him in the army. The High Court allowed the writ
-·'r petition in terms its decision in Dev Dutt, AS! vs. State of Punjab &
Ors., (1996) 7 SLR 807 and directed the State to re-compute the pension
of the respondent herein and to make the payment within six months.
Dissatisfied with the said order, the State filed the present appeal before E
this Court.
(3) We heard Mr. Ajay Pal, learned counsel for the appellants and
Ms. Shikha Roy Pabbi, learned counsel for 1st respondent.

-...;
(4) Learned counsel appearing for the appellant State of Punjab F
,,t vehemently contended that inasmuch as the respondent-herein who had
admittedly joined on 13.09.1961 as Sepoy in the Indian Army is not
entitled to the benefits of the Punjab Government National Emergency
Rules, 1965 when emergency was declared from 26.10.1962 to
09.01.1968. He also contended that the respondent who has rendered
G
services of less than 10 years as civil servant from 22.09.1994 to
,,-\ 31.01.2002 is not entitled to pension since the minimun1 qualifying service
should not be less than 10 years. He also contended that the High Court
was not justified in allowing the writ petition based on the judgment
rendered by it in Dev Dutt v. State ofPunjab (supra) which is inapplicable
H
756 SUPREME COURT REPORTS [2007] 11 S.C.R.

A in facts and law. On the other hand, learned counsel appearing for the
first respondent submitted that considering the military service and
Punjab civil service of the respondent, he is eligible to be granted the
benefit of pension on the civil side. According to him, the High Court is
perfectly right in following the dictum in Dev Dutt 's case(supra) and
B quashing the communication of Accountant General, Punjab dated
02.11.2001 rejecting the claim of the respondent to club the service
rendered by him in Army and in the Punjab Education Department.
(5) We have carefully considered the rival submissions with reference
to the pleadings and also perused the annexures and records filed along
C with this appeal.
(6) In order to understand the claim of 1st respondent, it is useful
to recapitulate his service particulars both in the army as well as in the
Punjab civil service. As stated earlier, on 13.09.1961, he joined as Sepoy
D in the Indian Army. After obtaining one year teacher's training, he was
appointed on 12.10.1967 as Education Instructor (EI) Hawaldar. On
30.09.1987, he retired as Naib Subedar at the age of 43=years. His date
of birth being 16.01.1944. It is also not in dispute that he was drawing
pension of Rs.1,057/- and also received DCRG to the tune of
E Rs.23,870/-.
(7) On 10.05.1988, respondents name was sponsored by
employment exchange for the post of JBT teacher in Punjab Education
Department. Though he was rejected on the ground that he does not fulfill
educational qualification for the post, by proceedings dated 09 .08.1988
F Director Public Instructions declared him as qualified. Thereafter, on
29.08.1988, he submitted representation to the Recruitment Committee
for considering his case.based on the instruction dated 09.08. l 988. 1When
Education Department, Punjab again invited applications, through
advertisement, for appointment as JBT teachers, the respondent applied
G for it and on 01.08.1992, he was selected. On 31.03.1994, hewas issued
an appointment letter and he joined at Government Primary School,
Ludhiana on 22.04.1994. It is seen from Annexure-P4 that at the time of
joining, he was drawing his army pension and allowed to draw the same.
Since the respondent was to retire on 31.01.2002, he submitted his
H pension case on 10.10.2001 to the Accountant General. By order dated
I

)
f
r

STATEv.HARBHAJANSINGH[P.SATHASIVAM,J.] 757

02.11.2001, Accountant General rejected his case on two grounds ( 1) A
service rendered by him on civil side was seven years nine months and
nine days, which was less than 10 years as per Punjab Civil Service Rules;
(2) service rendered in defence cannot be counted as there is gap of more
than 3 years as per government instructions of 1982. When the said order
was challenged before the Punjab and Haryana High Court, following the B
earlier decision in Dev Dutt 's case (supra) after quashing the
communication of the Accountant General, necessary direction was issued. ,
(8) It is not in dispute that the respondent is governed by Punjab
Recruitment of Ex-servicemen Rules, 1982. Rule 8 which deals with
Increments and Pension clearly says that the pay of an Ex-serviceman C
appointed against a reserved vacancy shall be fixed in accordance with
the provisions of Chapter VII of the Punjab Civil Services Rules, Volume
II.
(9) Now let us verify the relevant provisions of Punjab Civil Service D
Rules, 1970. Chapter VII deals with re-employment of pensioners. Even
in this Chapter, we are concerned with Rule 7.13, 7.14 and 7.15 which
read thus:
7 .13. A Government employee who has obtained a
compensation pension, if re-employed, may retain his pension in E
addition to his pay: provided that ifhe is re-employed in a post
paid from the Government revenue, the pension shall remain wholly
or partly in abeyance, if the sun1 of the pension and the initial pay
on re-employment exceeds his substantive pay immediately before
retirement, that is, a Government employee can draw so much of F
pension only as will make his initial pay plus pension equal to his
substantive pay at the time of his retirement. Once the amount of
the pension has been fixed in confo1mity with the above conditions
the Government employee shall be entitled to receive the benefit
of increments in his new scale or promotion to another scale or G
post without a finther con-esponding reduction in pension; nor shall
the amount of pension so fixed be varied during leave. In the case,
however of a pensioner re-employed in either a permanent or a
temporary post, for bona fide temporary duty lasting for not more
than a year, the Government or, in cases where the pension does H
~

758 SUPREME COURT REPORTS [2007] 11 S.C.R.
Y-

A not exceed Rs.40 a month, the authority which controls the
establishment on which the pensioner is to be employed may allow
the pension to be drawn in whole or in part even though the sum
total pay and pension exceeds his substantive pay at the time of
his retirement."
B
"7.14. If the re-employment is in qualifying service, the Government )..
employee may either retain his pension (subject of the proviso ....
stated in rule 7.13) in which case his former service will not count
for future pension, or cease to draw any part of his pension and
count his previous service. Pension intermediately drawn need not
c be refunded."
"7 .15. If a Government employee does not within three months
from the date of his re-employment, exercise the option conceded
by rule 7.14, of ceasing to draw pension and counting his former
D service, he can not, thereafter, do so without the permission of the
competent authority." -1--
(10) The above provisions make it clear that employee can draw
so much pension only if his initial pay plus pension does not exceed his
substantive pay at the time of retirement. Further, if previous service is
E
counted, the pension remains in abeyance. It also shows that if option is
not exercised in three months, he cannot do so at a later stage without
the approval of the competent authority. The period rendered shall count
towards the service only if person has not earned pension, any bonus or
gratuity paid is refunded to the State Government. Admittedly, the r.
F
respondent was getting pension ofRs.1,057/- per month. It is also not in
dispute that he received DCRG (gratuity) to the tune of Rs.23,870/-.
(11) Now coming to entitlement or counting his military service for
pension on serving as civil servant, we have to consider Punjab
G Government National Emergency (Concession) Rules, 1965 (since
repealed under Punjab Recruitment of Ex-servicemen Rules, 1982). ),....

Section 2 defines "military service" which reads as follows:
"Definition:- For the purposes of these rules, the expression
"military service" means enrolled or commissioned service in any
H
J

STATEv. HARBHAJANSINGH[P.SATHASIVAM,J.] 759

of the three wings of the Indian Armed Forces (including service A
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 be declared as military
service for the purposes of these rules. Any period of military B
training followed by military service shall also be reckoned as
military setvice.
Admittedly, respondent was in army from 13.09.1961to30.09.1987. It
is also not in dispute that emergency was declared from 26.10.196'.f to C
09.01.1968. In view of the admitted factual position and as per the
Emergency Rules, 1965, the service can be counted only if the person
joined during the emergency and not before or after it In view of the same,
the respondent who had admittedly joined the army on 13.09.1961 as
Sepoy is not entitled to the benefits of the provisions of the Punjab
Government National Emergency Rules, 1965 when emergency was D
imposed on 26.10.1962. In other words, he is not entitled to get his
military service counted for pension on serving as civil servant when
his case does not fall within the definition of military service which is
service rendered by a person during emergency. Further, as rightly pointed
out by learned counsel for the State because the respondent who has been E
enjoying the pension from the Army throughout is not entitled to olaim
pension from the State in view of ineligible period and he cannot have
double benefit. Inasmuch as the 1st respondent has rendered service as .
civil servant from 22.09.1994 to 31.01.2002 only is not entitled to peosion
contrary to the statutory rules when t4e minimum qualifying setvice should F
not be less than 10 years entitling a person for pension. The mi~itary
service rendered by him has to be ignored as he admittedly joined Anny
prior to the emergency. It is useful to refer to judgment in Ram Jqnam
Singh V. State of UP. and Anr., [1994] 2 sec 622. In a similar situation,
this Court has held as under: G
"12 ............. If the benefits extended to such persons who were
commissioned during national emergencies are extended even to
the members of the Anned Forces who joined during normal times,
members of the Civil Services can make legitimate grievance that H
760 SUPREME COURT REPORTS [2007] 11 S.C.R.

A their seniority is being affected by persons recruited to the service
after they had entered in the said service without there being any
rational basis for the same."
In para 13, this Court further held that the persons who had joiped either
B before or after the declaration of emergency had voluntarily offered their
services for the defence of the country belonged to a separate class and
there was no question of discrimination in giving any benefit in matters of
seniority by the rules. In para 14, it has held:
"14. Can it be said that the persons who had joined Anny after
c the declaration of emergency due to foreign aggression and those
who joined after the war came to an end stand on the same
footing? Those who joined Anny after revocation of emergency
joined Army as a career. It is well known that many persons who
joined anny service during the foreign aggression, could have opted
D for other career or service. But the nation itself being under peril,
impelled by the spirit to serve the nation, they opted for joining
Anny where then risk was writ large. No one can dispute that such
persons formed a class by themselves and by rules aforesaid an
attempt has been made to compensate those who returned from
E war if they compete in different services. According to us, the plea
that even persons who joined anny service after cessation of foreign
aggression and revocation of emergency have to be treated like
persons who have joined army service during emergency.due.to
foreign aggression is a futile plea and should not have been accep~ed
F by the High Court. It need not be impressed that whenever.any
particular period spent in any other service by a person is added
to the service to which such person joins later, it is bound to affect
the seniority of persons who have already entered in the service.
As such any period of earlier service should be taken into accohnt
for determination of seniority in the later service only for some .very
G
compelling reasons which stand the test of reasonableness and on
examination can be held to be free from arbitrariness."
(12) Relying on Ram Janam Singh 's case (supra), this Court, in a
subsequent decision in Chittaranjan Singh Chima and Anr. v. State of
H Punjab and Ors., [1997] 11 SCC 447 while considering the very same
STATEv. HARBHAJANSINGH[P.SATHASIVAM,J.] 761

rules, namely, Punjab Government National Emergency (Concession) A
Rules, 1965 held as under:
4......... .It would, thus, be seen that for the purpose of military
service, it would be an officer enrolled or commissioned in any of
the three wings of the Indian Armed Forces and rendered service
during the period of operation of the proclamation of emergency B
and such of the military service as may be declared thereafter by
the Government for the purpose of the entitlement under the Rule.
Since the appellants came to be appointed under this, they have
not been given any benefit of reckoning of the military service for
the purpose of seniority and consequential benefits in the civil C
service. The 1968 Rules and 1977 Rules contemplate of giving the
reservation and also consequential benefit of seniority reckoning
the military service to such of those officers who rendered service
in the military during emergency with a view to encourage the
personnel who came forward to serve the country at the time of D
emergency. Admittedly, the appellants came to be appointed not
during the emergency but in the regular process.
( 13) In the case on hand, the 1st respondent was not inducted in
"military service" when the emergency was declared on 26.10.1962. We E
have already held that the service can be counted only if the person has
joined during the emergency and not before it. The ratio in the above
mentioned cases also supports the same conclusion. All these relevant
materials have not been adverted to by tl1e High Court and it merely
._,(
>. followed Dev Dutt's case (supra) which facts are not applicable to the F
case on hand.
( 14) In the light of the above discussion, the impugned order of the
High Court is set aside and the appeal is allowed. No costs.
K.K.T. Appeal allowed. G