Allowed

Kirpal Singh v. State of Pb.Etc.

Punjab & Haryana HC20 Sept 2010CWP/15678/2004

Case brief

AI extract

What is this about?

This court allowed a writ petition seeking revision of pension computation. It held that military service must be counted towards pension calculation under the 1965 Rules, even for employees who availed premature retirement benefits under the 1975 Rules.

What did the court decide?

The impugned order rejecting the claim is quashed, and the petitioner is entitled to have his military service counted towards the computation of his pension.

Kirpal Singh Vs State of Pb.Etc. — Pension and Retirement Benefits | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Writ Petition No.15678 of 2004

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Date of decision: 20^th September, 2010

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Kirpal Singh

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Versus

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State of Punjab and others

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… Respondents

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CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

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Present: Mr. R.C. Chatrath, Advocate for the petitioner. Mr. Manoj Bajaj, Additional Advocate General, Punjab for the State.

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KANWALJIT SINGH AHLUWALIA, J. (ORAL)

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Petitioner had served the nation during the Chinese aggression in the year 1962. The State Government gave a clarion-call to the youth to serve their mother-land and for the encouragement of those who responded to this call, the State enacted the Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter referred to as, ‘the 1965 Rules’) granting certain benefits.

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The petitioner, on the call of the nation, joined Indian Army on 29^th June, 1963 during the national emergency. He was released from the Army on compassionate grounds on 26^th October, 1973 after completion of 10 years and 109 days of service.

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It is not disputed that the petitioner was granted benefit of 4 years, 6 months and 15 days of service rendered in Indian Army towards the seniority, increments and pension. As per the 1965 Rules, for

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Civil Writ Petition No.15678 of 2004

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calculation of pension, the military service is to be computed. Rule 4(iii) of the 1965 Rules reads as under:

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“4.(iii). Pension: The period of military service mentioned in clause (i) shall count towards pension only in the case of appointments to permanent services or posts under the Government subject to the following conditions:

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(a) The person concerned should not have earned a pension under military rules in respect of the military service in question.

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(b) Any bonus or gratuity paid in respect of military service by the defence authorities shall have to be refunded to the State Government.

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(c) 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 three years may also be allowed to count for pension in exceptional cases under the orders of the Government.”

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The petitioner, after release from the Indian Army on 26^th October, 1973, joined the Punjab State Transport Department as a Driver on 23^rd October, 1975. The petitioner was born on 3^rd June, 1946 and the date of his superannuation on attaining the age of 58 years was 30^th June, 2004. However, he sought premature retirement on 31^st December, 2000 after having rendered 25 years, 2 months and 8 days of service in the Transport Department, Punjab.

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Grievance of the petitioner is that as per the 1965 Rules, reproduced above, the military service rendered is to be counted towards pension. Whereas stand of the State of Punjab is that once a person had

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Civil Writ Petition No.15678 of 2004

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taken benefit of premature retirement Rules, the benefit of military service cannot be granted to him as under the premature retirement Rules proportionate benefit is granted by extending the qualifying service while counting the pension. Reliance has been placed upon the Punjab Civil Services (Premature Retirement) Rules, 1975 (hereinafter referred to as, ‘the 1975 Rules’), Rule 4(2)(i) whereof reads as under:

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“4.(2) (i) While granting proportionate pension and gratuity to an employee retiring under sub-rule (2) or sub-rule (3) of rule 3, as the case may be, his qualifying service as on the date of intended retirement shall be increased by a period of not exceeding five years, so however, that the totally qualifying service of the employee as so increased shall not in any case exceed thirty-three years or the period of qualifying service which the employee would have completed had he retired on the date of his superannuation.”

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The question posed before this Court is as to whether Rule 4.2 of the 1975 Rules will exclude the military service towards calculation of pension under the 1965 Rules. The stand of the State of Punjab is that those who got benefit after increase in qualifying service under Rule 4.2 of the 1975 Rules, are not entitled to the benefit granted under 1965 Rules.

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The petitioner had earlier filed a petition bearing Civil Writ Petition No.17996 of 2002, which was disposed of by this Court by giving a direction to the respondent(s) to pass a speaking order. In the speaking order (Annexure P-4) passed by the General Manager, Punjab Roadways Batala, the claim of the petitioner was rejected. It was stated that under the 1975 Rules, the petitioner has been granted benefit of 3 years and 6 months and the actual service rendered by him is 25 years, 2 months and 5 days, thus the total service rendered by the petitioner came out to be 28 years, 8 months and 8 days. Therefore, it was held that as per Rule 4.2 of

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Civil Writ Petition No.15678 of 2004

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the 1975 Rules, the benefit of military service could not be granted. The operative part of the impugned order (Annexure P-4) reads as under:

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“3. And as such, an employee who seeks premature retirement, that in view of the conditions laid down under Sub Rule 4.2 of Punjab Civil Services Rules, Volume-2, he cannot be granted the benefit of the service rendered in the Army before attaining the age of 58 years and thus the petitioner is not entitled to get the revised pensionary benefits as demanded vide para 3 of Annexure P-7. In view of the facts mentioned in para 2 above, the petitioner is not entitled to get additional pensionary benefits.”

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There is an inherent fallacy in the reasoning adopted by the State of Punjab in the impugned order (Annexure P-4). The 1975 Rules have been enacted with an object to encourage the employees to take retirement and engage themselves in self-employment so that employment is generated for the needy unemployed youth. Once the military service benefit was granted to acknowledge the services of those who left their homes to defend the borders of the nation risking their lives, especially when the 1965 Rules were enacted as a token of gratitude to the war heroes, it makes no sense to exclude this benefit under the 1965 Rules. The benefit given under the 1965 Rules accrued to the petitioner, as a personal measure. For all intents and purposes, it became a part of the qualifying service towards pension. Rule 4.2 of the 1975 Rules nowhere envisages exclusion of the military service benefit. Rather, the 1965 Rules and the 1975 Rules are to be read in harmony. The military service benefit was also countable towards seniority and grant of increments. Thus, the military service benefit is to be taken into consideration from the date of commencement of the service. It is at the very inception, i.e. entry in the service, military service rendered was to be counted and the date of joining had to relate back. Say, e.g. if an

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Civil Writ Petition No.15678 of 2004

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employee has joined the Government Service on 1^st January, 1966, by giving military service benefit of 3 years, it is to be construed that he is deemed to have joined the service on 1^st January, 1963. Thus, this benefit cannot be denied to the petitioner by interpreting Rule 4.2 of the 1975 Rules.

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Accordingly, present writ petition is allowed and the impugned order (Annexure P-4) is hereby quashed. The military service rendered by the petitioner shall be counted towards computation of his pension. The needful shall be done within a period of four months from the date of receipt of a certified copy of this order. However, there will be no order as to costs.

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[KANWALJIT SINGH AHLUWALIA] JUDGE

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September 20, 2010 rps

Kirpal Singh v. State of Pb.Etc.

Case brief

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Kirpal Singh v. State of Pb.Etc.

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