Marman Devi Vs. State of Haryana and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/627213
SubjectService
CourtPunjab and Haryana High Court
Decided OnAug-04-2009
Judge Ranjit Singh, J.
Reported in(2010)157PLR53
AppellantMarman Devi
RespondentState of Haryana and anr.
DispositionPetition allowed
Cases Referred(Mohinder Singh and Anr. v. State of Haryana and Ors.). Even
Excerpt:
- - 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. order, annexure p-1, clearly shows that the benefit of service rendered by the late husband of the petitioner from 1.1.1963 to 10.1.1968 was allowed as per the order passed by district primary education officer, bhiwani. direction is issued to the respondents to calculate the service rendered by the petitioner in the civil as well as in the military and then consider the case of the petitioner for grant of pension in terms of the rules. the pension as due to the late husband of the petitioner shall be released from the date of his retirement to the date of his death and subsequently the other pensionary benefits like family pension etc.ranjit singh, j.1. an ex-serviceman, who had served during emergency in the armed forces and had subsequently retired from the post of a j.b.t teacher died fighting for his claim to earn pension. his wife now is seeking the same relief through the present writ petition. the husband of the petitioner, late shri shiv lal served in the armed forces from 1.1.1963 to 10.1.1968. this service was during the national emergency. subsequently, the husband of the petitioner was selected as jbt teacher on 31.11.1996 and joined as such on 4.12.1990. he retired from the post of teacher on 31.5.1996. after his retirement, the pension payable to the husband of the petitioner was not released. he had to thus file various representations. the husband of the petitioner also represented that his service rendered in the army be counted for the purpose of pension with the service rendered by him as jbt teacher.2. the late husband of the petitioner might have had some hope when respondent no. 2 had forwarded a copy of communication dated 28.10.1993 to sub divisional educational officer directing him that the military service rendered by the husband of the petitioner would qualify for the purpose of pension. it was also mentioned that the period during which he had remained out of service after being relieved from military service will be treated to have been condoned under rule 4 of the punjab national emergency concession rules, 1965 (hereinafter referred to as the rules). on 22.5.1997, the husband of the petitioner, thus, deposited an amount of rs. 1675/-of gratuity paid to him for service rendered in military. having done so he was awaiting for the release of the pension and pensionary benefits. nothing, however, came from the side of the respondents. on 14.7.1999, husband of the petitioner died awaiting for the pension. thereafter the petitioner started pursuing the case for grant of pension. it is in this background, she filed writ petition before this court.3. the petitioner would refer to rule 4 of the rules, to stake a claim for grant of pension by counting the service rendered by her husband in the military during the emergency period. rule 4 of the rules regulates the counting of period of military service towards pension in those cases where person is appointed to permanent service on a post under the government but is subject to certain conditions. the person concerned should not have earned a pension under military rules in respect of military service. any bonus or gratuity paid in respect of military shall have to be refunded to the state government. it is then provided that the period if any between the date of discharge from the 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.4. the respondents, on the other hand, by relying upon the above condition, would urge that the period of service rendered by husband of the petitioner in the military can not to be counted for the grant of pension. it is also pointed out that the husband of the petitioner was getting a military service pension and after his death the petitioner is getting a family pension. it is stated that gap period from the date of discharge from the military service and the date of appointment in the government service is about two years and, thus, military service benefit can not be granted to the petitioner. it is pointed out that the husband of the petitioner has served the department for less than 10 years and hence, pension is not admissible to him.5. the stand of the respondents can not be appreciated.6. firstly the late husband of the petitioner was not in receipt of any pension for his military service. he was denied pension only on the ground that he had less than 10 years of service. if the service rendered by him in the military is taken into consideration which was during the period of emergency, then he would have more than 10 years service and, thus, he would be entitled to pension.7. it is, thus, to be seen whether the service rendered by the late husband of the petitioner in the army is to be counted for the purpose of grant of pension or not. order, annexure p-1, clearly shows that the benefit of service rendered by the late husband of the petitioner from 1.1.1963 to 10.1.1968 was allowed as per the order passed by district primary education officer, bhiwani. rather, the petitioner was given a presumptive date of appointment as 21.12.1985 and his pay was fixed accordingly. his seniority was also to be reckoned with the presumptive date of appointment and the break in between the military service and the civil service was also condoned. in any case, this can not be advanced as a valid reason either to ignore this military service into consideration for the purpose of pension or to deny counting of the same on the ground of this gap. this controversy appears to have been resolved by the order passed in civil writ petition no. 2327 of 2005 (harikesh v. state of haryana and ors.), on 19.5.2006, where the division bench of this court has held as under:the petitioner has reproduced instructions of the government in para 13 of the writ petition to substantiate his plea that the embargo contained in rule 4 (1) of the punjab national (concession) rules, 1965 curtailing the benefit of military service for pension and pensionary benefits has been removed. relevant notification under the c.c.s. (pension) rules, 1972 regarding the removal of limitation of pensionary benefits in second spell for re-employed military pensioners has not been denied in para 13 of the written statement and it has been reiterated that the pension during the civil service has not been denied only on the ground that the petitioner is getting pension on account of his military pension but it has been denied on the basis of break of more than 5 years between discharge from military service and joining of the civil service.in view of the above, there does not appear to be any controversy regarding the grant of benefits of military service rendered during emergency for the purpose of determining pensionary benefits of civil service.xx xx xx xx xx xx xx xx xxxx xx xx xx xx xx xx xx xx8. we have carefully considered the reason depicted by the respondents for denying the petitioner the benefit of his military service rendered during emergency for the purpose of pension and are unable to agree to the justification put forth by the respondents for denial of statutory right to the petitioner. the justification of the respondents is absolutely contrary to the scope,meaning and interpretation of rule 4 (iii) (3) of the rules.9. a single bench of this court has followed the above dicta of law as laid down by the division bench of this court while deciding civil writ petition no. 18129 of 2006 (mohinder singh and anr. v. state of haryana and ors.). even the reading of rule 4(3) of the rules, would not give any indication that military service is not to be counted for the purpose of pension, when the gap between the discharge from military service and joining of the civil service is more than one year. the provision seems to be for regulating the grant of pension even for the period if there be a gap between the two services and not that the earlier service rendered in the military would be ignored for the purpose of pension if the gap is more than one year between the two services. this justification, if advanced, is not supported by the contents of rule 4(3) as referred to above. the petitioner, thus, has made out a case for counting the service rendered by her late husband in the military with the civil service rendered by her deceased husband.10. the writ petition is accordingly allowed. direction is issued to the respondents to calculate the service rendered by the petitioner in the civil as well as in the military and then consider the case of the petitioner for grant of pension in terms of the rules. the pension as due to the late husband of the petitioner shall be released from the date of his retirement to the date of his death and subsequently the other pensionary benefits like family pension etc. shall be so released to the petitioner, being the wife of deceased employee. the exercise be completed within a period of two months from the date of receipt of copy of this order. the amount due shall also be released within this period, otherwise it shall carry an interest at the rate of 9% per annum from the date it is due to the date of payment.
Judgment:

Ranjit Singh, J.

1. An ex-serviceman, who had served during emergency in the armed forces and had subsequently retired from the post of a J.B.T Teacher died fighting for his claim to earn pension. His wife now is seeking the same relief through the present writ petition. The husband of the petitioner, late Shri Shiv Lal served in the armed forces from 1.1.1963 to 10.1.1968. This service was during the National emergency. Subsequently, the husband of the petitioner was selected as JBT teacher on 31.11.1996 and joined as such on 4.12.1990. He retired from the post of teacher on 31.5.1996. After his retirement, the pension payable to the husband of the petitioner was not released. He had to thus file various representations. The husband of the petitioner also represented that his service rendered in the Army be counted for the purpose of pension with the service rendered by him as JBT teacher.

2. The late husband of the petitioner might have had some hope when respondent No. 2 had forwarded a copy of communication dated 28.10.1993 to Sub Divisional Educational Officer directing him that the military service rendered by the husband of the petitioner would qualify for the purpose of pension. It was also mentioned that the period during which he had remained out of service after being relieved from Military service will be treated to have been condoned under Rule 4 of the Punjab National Emergency Concession Rules, 1965 (hereinafter referred to as the Rules). On 22.5.1997, the husband of the petitioner, thus, deposited an amount of Rs. 1675/-of gratuity paid to him for service rendered in military. Having done so he was awaiting for the release of the pension and pensionary benefits. Nothing, however, came from the side of the respondents. On 14.7.1999, husband of the petitioner died awaiting for the pension. Thereafter the petitioner started pursuing the case for grant of pension. It is in this background, she filed writ petition before this Court.

3. The petitioner would refer to Rule 4 of the Rules, to stake a claim for grant of pension by counting the service rendered by her husband in the Military during the emergency period. Rule 4 of the Rules regulates the counting of period of Military service towards pension in those cases where person is appointed to permanent service on a post under the Government but is subject to certain conditions. The person concerned should not have earned a pension under Military Rules in respect of Military Service. Any bonus or gratuity paid in respect of Military shall have to be refunded to the State Government. It is then provided that the period if any between the date of discharge from the 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.

4. The respondents, on the other hand, by relying upon the above condition, would urge that the period of service rendered by husband of the petitioner in the Military can not to be counted for the grant of pension. It is also pointed out that the husband of the petitioner was getting a military service pension and after his death the petitioner is getting a family pension. It is stated that gap period from the date of discharge from the military service and the date of appointment in the Government service is about two years and, thus, military service benefit can not be granted to the petitioner. It is pointed out that the husband of the petitioner has served the department for less than 10 years and hence, pension is not admissible to him.

5. The stand of the respondents can not be appreciated.

6. Firstly the late husband of the petitioner was not in receipt of any pension for his military service. He was denied pension only on the ground that he had less than 10 years of service. If the service rendered by him in the military is taken into consideration which was during the period of emergency, then he would have more than 10 years service and, thus, he would be entitled to pension.

7. It is, thus, to be seen whether the service rendered by the late husband of the petitioner in the army is to be counted for the purpose of grant of pension or not. Order, Annexure P-1, clearly shows that the benefit of service rendered by the late husband of the petitioner from 1.1.1963 to 10.1.1968 was allowed as per the order passed by District Primary Education Officer, Bhiwani. Rather, the petitioner was given a presumptive date of appointment as 21.12.1985 and his pay was fixed accordingly. His seniority was also to be reckoned with the presumptive date of appointment and the break in between the military service and the civil service was also condoned. In any case, this can not be advanced as a valid reason either to ignore this military service into consideration for the purpose of pension or to deny counting of the same on the ground of this gap. This controversy appears to have been resolved by the order passed in Civil Writ Petition No. 2327 of 2005 (Harikesh v. State of Haryana and Ors.), on 19.5.2006, where the Division Bench of this Court has held as under:

The petitioner has reproduced instructions of the Government in para 13 of the writ petition to substantiate his plea that the embargo contained in Rule 4 (1) of the Punjab National (Concession) Rules, 1965 curtailing the benefit of military service for pension and pensionary benefits has been removed. Relevant notification under the C.C.S. (Pension) Rules, 1972 regarding the removal of limitation of pensionary benefits in second spell for re-employed military pensioners has not been denied in para 13 of the written statement and it has been reiterated that the pension during the civil service has not been denied only on the ground that the petitioner is getting pension on account of his military pension but it has been denied on the basis of break of more than 5 years between discharge from military service and joining of the civil service.

In view of the above, there does not appear to be any controversy regarding the grant of benefits of military service rendered during emergency for the purpose of determining pensionary benefits of civil service.

xx xx xx xx xx xx xx xx xx

xx xx xx xx xx xx xx xx xx

8. We have carefully considered the reason depicted by the respondents for denying the petitioner the benefit of his military service rendered during emergency for the purpose of pension and are unable to agree to the justification put forth by the respondents for denial of statutory right to the petitioner. The justification of the respondents is absolutely contrary to the scope,meaning and interpretation of Rule 4 (iii) (3) of the Rules.

9. A Single Bench of this Court has followed the above dicta of law as laid down by the Division Bench of this Court while deciding Civil Writ Petition No. 18129 of 2006 (Mohinder Singh and Anr. v. State of Haryana and Ors.). Even the reading of Rule 4(3) of the Rules, would not give any indication that military service is not to be counted for the purpose of pension, when the gap between the discharge from military service and joining of the civil service is more than one year. The provision seems to be for regulating the grant of pension even for the period if there be a gap between the two services and not that the earlier service rendered in the military would be ignored for the purpose of pension if the gap is more than one year between the two services. This justification, if advanced, is not supported by the contents of Rule 4(3) as referred to above. The petitioner, thus, has made out a case for counting the service rendered by her late husband in the military with the civil service rendered by her deceased husband.

10. The writ petition is accordingly allowed. Direction is issued to the respondents to calculate the service rendered by the petitioner in the civil as well as in the military and then consider the case of the petitioner for grant of pension in terms of the Rules. The pension as due to the late husband of the petitioner shall be released from the date of his retirement to the date of his death and subsequently the other pensionary benefits like family pension etc. shall be so released to the petitioner, being the wife of deceased employee. The exercise be completed within a period of two months from the date of receipt of copy of this order. The amount due shall also be released within this period, otherwise it shall carry an interest at the rate of 9% per annum from the date it is due to the date of payment.