Allowed

Hari Sharma v. State of Pb and Ors.

Punjab & Haryana HC15 Feb 2011CWP/14691/1991

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking recognition of military service for seniority under Punjab Government National Emergency Concession Rules, 1965, held applicable to the respondent corporation which adopted Government rules, directing it to grant the requested benefits.

What did the court decide?

Impugned orders rejecting the claim for seniority benefits quashed; respondent corporation directed to fix seniority extending emergency rule benefits and grant consequential benefits.

Hari Sharma Vs State of Pb and Ors. — Pension and Retirement Benefits | Punjab & Haryana HC (2011)

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Civil Writ Petition No.14691 of 1991 1

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Date of Decision : 15.2.2011

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Hari Sharma

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Versus

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State of Punjab and others

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CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR

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Present: Mr.Sanjiv Sharma, Advocate for the petitioner.

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Mr.R.S.Rawat, Assistant Advocate General, Punjab for respondent Nos.1 and 2.

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Mr.Rahul Sharma, Advocate for respondent No.3.

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M ehinder S ingh S ullar, J. (Oral)

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Tersenessly, the facts, which need a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that petitioner Hari Sharma had joined the Indian Army as a Sepoy Clerk on 18.6.1963, after the declaration of National Emergency on 26.10.1962. He worked in the Indian Army during the period of emergency with effect from 18.6.1963 to 9.1.1968 when it was lifted. Thereafter, having worked on the post of Havildar Clerk, he (petitioner) was discharged from the Army on 23.4.1971.

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The petitioner claimed that the Punjab Agro Industries Corporation Limited (for brevity “respondent-Corporation”) (respondent No.3) advertised some posts of Assistants (subsequently re-designated as Executives Grade-I). In pursuance of the advertisement, he was selected against the reserved post for exservicemen and joined on 26.11.1973. Since then, he has excellent service record and was granted special increments and cash prizes for his excellent performance of his duties. The respondent-Corporation was stated to have adopted all the services rules of the Punjab Government in the year 1968, by virtue of resolution

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Civil Writ Petition No.14691 of 1991 2

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dated 22.1.1968 (Annexure P7). The fact of adoption of Punjab Government Rules was stated to have been admitted by the respondent-Corporation in its written statement filed in CWP No.15290 of 1990 (Annexure P9). According to the petitioner that although he was entitled to the benefit of service rendered by him in the Indian Army, in view of the provisions of The Punjab Government National Emergency Concession Rules, 1965 (hereinafter to be referred as “the Emergency Rules”) for the purposes of increments, seniority and pension etc. on the post of Assistant, but the respondent-Corporation did not grant the benefit of seniority etc. He made representations (Annexures P14 to P16). In the wake of circular dated 5.6.1987 (Annexure P17), the petitioner supplied the requisite information, by way of registered letter dated 9.6.1987 (Annexure P18), but the benefit of seniority was not granted to him. He made another representation dated 2.4.1990 (Annexure P20). On receipt of provisional seniority list (Annexure P19), he requested that he should be granted benefit of seniority in military service, during the emergency period. The representation of the petitioner was stated to have been rejected by the respondent-Corporation, by means of letter dated 23.1.1991 (Annexure P21). He made another representation dated 4.3.1991 (Annexure P23), but the same was again rejected by the respondent-Corporation, vide letter dated 19.7.1991 (Annexure P25).

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The petitioner did not feel satisfied and preferred the instant writ petition, challenging the impugned letters (Annexures P21 and P25) and claiming the benefits of seniority etc. accruing on account of Emergency Rules, invoking the provisions of Articles 226 and 227 of the Constitution of India.

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Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that although he is entitled to the benefit of military service for the purpose of seniority etc., in view of the Emergency Rules, but the same benefit was wrongly declined by the respondent-Corporation, without any legal/cogent basis, by virtue of impugned letters (Annexures P21 and

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Civil Writ Petition No.14691 of 1991 3

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P25). As the benefits of seniority etc. accruing from the Emergency Rules, were stated to have been given to the similarly situated persons mentioned in the writ petition, therefore, the plea of discrimination was also pressed into service by him (petitioner). On the basis of aforesaid allegations, the petitioner sought the quashment of the impugned letters (Annexures P21 and P25), in the manner indicated hereinabove.

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The respondent-Corporation contested the claim of the petitioner and filed the written statement, inter-alia pleading certain preliminary objections of, maintainability of the writ petition, locus standi and cause of action of the petitioner. The respondent-Corporation claimed that as it is a separate legal entity and service conditions of its employees are governed by the Certified Standing Orders, therefore, the Emergency Rules are not applicable and petitioner is not entitled to claim the benefit of seniority in this respect. The plea of discrimination has been vaguely denied by it. It will not be out of place to mention here that the contesting respondent has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how I am seized of the matter.

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Having heard the learned counsel for the parties, having gone through the evidence on record and relevant law with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be accepted for the reasons mentioned hereinbelow.

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As is evident from the record that the petitioner joined the Indian Army on 18.6.1963, after the declaration of National Emergency on 26.10.1962 and he was discharged from the Army on 23.4.1971, vide discharge certificate (Annexure P1). Rule 4 of the Emergency Rules postulates that the period of military service shall be counted for increments, seniority and pension. It is not the case of the respondent-Corporation that the claim of the petitioner does not fall within the ambit of the Emergency Rules, but the same was negatived on the ground of non-application of the Emergency Rules to it (respondent-Corporation).

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Civil Writ Petition No.14691 of 1991 4

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Ex facie, the cosmetic argument of the learned counsel that since the respondent-Corporation is a separate legal entity and the service conditions of its employees are governed by the Certified Standing Orders, so, the petitioner is not entitled to the benefit of Emergency Rules, which were never adopted by it, is neither tenable nor the observations of this Court in case PSIDC Karmchari Union and another v. State of Punjab and others 2004(4) RSJ 744 , are at all applicable in the instant controversy, wherein the PSIDC reduced/discontinued the house rent, medical and conveyance reimbursement allowances, admissible to its employees, on the basis of letter dated 10.5.2002 (Annexure P11 therein) of the Chief Secretary. On the peculiar facts and in the circumstances of that case, it was observed in paras 22 and 23 as under:-

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“For the foregoing reasons the impugned decision of the respondents, the letter dated 10.5.2002 (Annexure P-11) and the extract of the minutes of the Meeting of the Board of Directors of PSIDC held on 24.5.2002 (Annexure P-17) to the extent that house rent allowance and medical allowance have been reduced and conveyance reimbursement discontinued are liable to be quashed.

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The petition is accordingly allowed and the impugned letter dated 10.5.2002 (Annexure P-11) issued by the Chief Secretary to Government of Punjab as also the extract of the minutes of the Meeting of the Board of Directors of PSIDC held on 24.5.2002 (Annexure P-17) to the extent that house rent allowance and medical allowance has been reduced and conveyance reimbursement discontinued are quashed. The Board of Directors of the PSIDC (respondent No.4) shall re-consider the matter by taking into account all the facts and circumstances the economic constraints if any, and also whether there was justification for reduction in the house rent allowance and medical allowance and discontinuance of conveyance reimbursement after taking into account all relevant materials which are liable to be taken into consideration in the consideration process. There shall, however, be no order as to costs.”

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Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the respondentCorporation in this regard.

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What is not disputed here is that the Government of Punjab issued circular/letter No.138-S.II(3)-72 dated 20.1.1972 (Annexure P10) to all the

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Civil Writ Petition No.14691 of 1991 5

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Administrative Secretaries and Heads of Departments, in regard to the grant of concession/benefit of Emergency Rules to released army personnel and exservicemen in various corporate bodies functioning in Punjab State viz. Universities, School Education Board and similar other undertakings .

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Not only that, in continuation of these instructions, the Punjab Government again issued circular dated 15.2.1972 (Annexure P11) to all the Heads of Departments to ensure the compliance of benefit of Emergency Rules in the following manner:-

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“Vide instructions no.(U.O.) 138-S.II(3)-72, dated 20^th January, 1972, the Administrative Departments were requested to advise the Corporation/Autonomous bodies and other similar undertakings under their control to consider the question of adopting Government policy in so far as recruitment to services under the such bodies is concerned.

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It has come to the notice of Government that the above rules/instructions are not being observed/meticulously with the result that the progress about resettlement of the released Army Personnel is not upto the expectation of the Govt. and in view this omission/laxity with concern and desires that the instructions may please be observed in letter and spirit

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The receipt of this letter may kindly be acknowledged.”

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Moreover, the fact of adoption of Government Rules, by virtue of resolution (Annexure P7) has been admitted and the adoption of Rules has not been specifically denied by the respondent-Corporation in the written statement (Annexure P9) filed in CWP No.15290 of 1990.

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Meaning thereby, the statutory Emergency Rules are fully applicable to the employees of respondent-Corporation as well. The main grounds projected by the respondent-Corporation to negative the claim of the petitioner, by means of impugned letter (Annexure P21) that he (petitioner) did not write even upto 12.2.82 when the notification was repealed and so much so that the Corporation has not made the above rules applicable to any employee”, are not legally tenable. It is not the case of the respondent-Corporation that the petitioner's case does not fall within the ambit of Emergency Rules, but the benefit was denied to him on

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Civil Writ Petition No.14691 of 1991 6

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account of non-adoption of Emergency Rules by it. Once the State Government had directed the respondent-Corporation, by way of orders (Annexures P10 and P11) to apply the Emergency Rules for the purpose of increments, seniority and pension, in that eventuality, the respondent-Corporation cannot escape its liability and is bound to grant the military service benefit to the petitioner for the purpose of calculating his seniority etc.

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There is another aspect of the matter, which can be viewed from a different angle.. The petitioner has specifically mentioned in para Nos.16 and 17 of his writ petition that the respondent-Corporation has granted the benefit of seniority to other similarly situated persons, after extending the benefit of Emergency Rules. This fact has been vaguely denied by the respondentCorporation. Thus, to my mind, the petitioner cannot be denied the same benefit of seniority etc., emanating from the Emergency Rules.

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Therefore, the contention of the learned counsel that petitioner is entitled to the benefit of military service for the purpose of increments, seniority and pension, has considerable force and the contrary arguments of the learned counsel for the respondent-Corporation “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances.

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No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

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In the light of the aforesaid reasons, the instant writ petition is accepted. Consequently, the impugned letters (Annexures P21 and P25) are hereby quashed. The respondent-Corporation is directed to fix the seniority of petitioner, after extending the benefit of Emergency Rules and to grant him all consequential benefits in this relevant connection.

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( M ehinder S ingh S ullar) J udge

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Whether to be referred to reporter? Yes/No

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15.2.2011 AS

Hari Sharma v. State of Pb and Ors.

Case brief

What is this about?

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Hari Sharma v. State of Pb and Ors.

Case brief

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