DHAN SINGH AND ORS. ETC. ETC. v. STATE OF HARYANA AND ORS.

The Judgment of the Court was delivered by E FATHIMA BEEVI, J. Civil Appea! No. 1060 of 1990 is directed against the judgment and order dated 11. 7.1988 of the High Court of Punjab and Haryana dismissing the Civil Writ Petition No. 4725 o{ 1986 filed by the appellants.

F The appellants are ex-servicemen re-employed in Government service in the State of Haryana. They served in the Indian Anny pur- ing the period of operation of the proclamation of emergency made py the President of India under Article 352 of the Constitii(ion of India on October 26, 1962 and lifted on January 10, 1968. The Punjab Govern- ment National Emergency (Concessions) Rules, 1965, (Hereinafter G referred to as the Emergeny Concession Rules) in force w.e.f. November 1, 1966 provided certain benefits to ex-army personnel who are re-employed in the matter of increment, seniority, pension etc. The Rules were adopted by the State of Haryana. The Government of Haryana vide Notifications dated 22.3.1976, 9.8.1976 and 5. H.1976 introduced amendments to these Rules. The appellants are denied tqe benefits under the Rules in view of sucq amendments. The writ peti-

Df!AN S!NGf! v. sTA.TF Of tjARYANA lfA.THfl>fA ll/l!JYJ, L) 427

tion filed by the appef!ants chal!e11ging the ~mrn4ments was >\jslT)issed tn limine by t!ie imp4gqed jµ<Jgment 9Mec! H· 7. ]988. ·

Rule 4 of tile EmerneJ!cY Conc.essions ~»I.es as j! prgiqally stooq, in so far as is relevant for the pl!rpose pf!hes,e cas,es rea<!s as fp)lows:

"Rule 4. Increrneni&, seniPri1Y M!,cl pemiP1J,-J.',eriocl of military service shall cpµ11t fPr inpremep!s, seniority and pensi011 as unfier:- I Ol I11creme111s: T.he periPl:J speJ!t PY a p,ersor. ofl military service, af(er a(!ail)il!g tpe mirimµrn age prescriped for appojntmenl to apy service or p.ost, IP wpich he is appoimed, shall co1Jnt for increlTJents ................. .

p This concessiPn s!J~JI, hmve¥er, Re a<lmjssible .only on first appoiptm,eq(.

(ii) Sel)jority: Tne period of !)1ijjtary service mel)tioneci in claus.e (i) snail re 1a~e11 into col!si<!eration f<n the purpose of determi11i11g the seniori(y flf a person wM h.as rendered military service. · .E

For the purpose of the ~illes the expr.essjon 'mimary service' has beeq .defined ip Rule 2 wbicb re~s as µq(jer: f "2. Definition.-f,or th.e pµrposes of these rules, the expression 'miiit.ary service' m.e,ans .enmlled or commis- sioned l)eryjce in ~'W ,of tile lhree l"ings of the Jndi~n Armed For,ces Gnc)w:ling service .as a Warra.nt Officer) rendered by ~ pers.oµ dwirig .tl)e perio,<1 of operation of the proclamation of emergency made by the President under Article 352 of tl)e C.onstitµ!ion of In.dia on October 26, )962 or sµc!) .otlJer servic.e as 111ay i)erl'~fter b.e declared as military service for tl).e p\!rposes .of these rules. Any period pf 111i)itary training followed by military service s!)all also be reckoned as military servic.e." H

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By the first amendment vide Notification No. GSR 77/Const.i A Art. 309/ Amend( 1)/76 dated 22.3.1976, a proviso was added to Rule 4(ii) which reads as under:

"Provided that a person who has availed of concession under sub-rule (3) of Rule 3 shall not be entitled to the B concession under this clause."

By the second amendment vide Notification No. GSR 182/Const./Art. 309/Am~nd/(2)/76 dated 9.8.1976, the definition of the expression 'military service' was substituted. It reads:

"2. Definition.-For the purposes of these rules, the expres- c sion 'militar'y service' means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made by the President under Article 352 of the Constitu- tion of India on October 26, 1962 in any of the three wings D of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said emergency or such other service as may hereafter be declared as mili- tary service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service." E These amendments were made with retrospectice effect from 1.11.1966 in exercise of the power under Article 309 of the Constitution.

By the No,tification dated 5.11. 1976, the Rule was further amendment by adding a proviso to Rule 4(ii) which reads as under: F "Provided that a person who has been released from mili- tary service on compassionate grounds shall not be entitled to any concession under thus rule."

This amendment also with retrospective effect from I. l l. 1986 was struck down as violative of Articles 14 and 16 of the Constitution in Raj Pal Sharma & Ors. v. State of Haryana & Ors., [1985] (Supp.) seen. Respondent State issued instructions vide letter No. 12/14/84-4 GSII dated 4.8.1986 that the ex-servicemen, employees who joined the civil service after the issue of these notification would continue to be

DHAN SINGH v. STATE OF J:IARYANA [FATHIMA BEEVI, J.I 429

governed by these notifications. The appellants and the writ petitio- A ners in Writ Petition No. 1159 of 1989 who joined government service since December 1976 are accordingly denied the benefits under the Rules. Under Rule 4 read with Rule 2 as amended, only those who are enrolled or commissioned during the period of emergency are eligible for the benefits under Rule 4. Ex-army personnel who joined the army prior to 26.10.1962 cannot claim that service during the period B emergency should count for increment, seniority or pension.

The appellants 4, 5, 7 and 8 had been enrolled or commissioned during the period of the emergency but were released on compassio- nate grounds. But for the proviso to Rule 4(ii) introduced by the amendment vide Notification No. GSR 238. Const./ Art. 309/Amend (3)/76 dated 5. 11. 1976, they would be entitled to the benefits provided c under Rule 4. In Raj Pal Sliarma & Ors. v. State of Haryana & Ors., [ 1985] (Supp.) SCC 72 at page 75, this Court observed as under:

"All those persons released from military service constitute one class and it is not possible to single out certain persons D of the same class for differential treatment. There appears to be no reasonable classification between the persons who were released on compassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived ()f _the equal opportunity. The amendment, therefore, is violative of Articles 14 and E 16 of the Constitution and, therefore. bad.··

In view of the legal position thus stated, these appellants 4, 5, 7 and 8 are entitled to benefits under the Rule. The remaining appel- lants have joined the army before 26.10.1962 but had served during the period of emergency and were released or discharged only after the F emergency was lifted. They had also joined the State service after the first and second amendments were introduced. They have challenged the second amendment vide Notification No. GSR 182/Const./Art. 309/Amend (2)/76 dated 9.8.1976 as violative of Articles 14 and 16 of the Constitution. In K.C. Arora & Ors. v. State of Haryana & Ors., [1984] 3 SCC 281 the notifications dated 22.3.1976 and 9.8.1976 G amending Rule 2 thus were challenged by ex-army personnel who had joined the State service prior to the notifications. This Court said that immediately on appointment of the petitioners as Assistant Engineers they became entitled to get their seniority fixed giving them the benefit of their military service. Following the_ decision in State of Gujarat_~. Raman Lal Keshav Lal Soni, [ 1983] 2 SCC 33 this Court held that the H

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Ooverrit11eht of Haryatta ca11ntJt take away the accrued rights of the petitiortets atid the a!Jpeilartts before it by makihg amendment to the Rules with reltUS!Jecliv& effect. the operative portion of the judgment reads as under:

"For the foregoing discussion the writ petitions as well as the appeals ate allowed and the orders of the High Court dated October 10, 1980 ate quashed and the impugned Rule 4(il) of the Punjall Government National Emergency (Concessions) Rules, 1965, as amended by the Haryana Governinetit Oazeite Notification No. GSR 77/Const/Art/ 309/Amend(l)/16 dated Marett 22, 1976 and the Notifica- tion No. OSR 182/t:onst/Art/309/Amend(2)/76 dated c August 9, 1976 ametidittg the definition of the expression 'military service' in Rule 2, ate declared to be ultravires the Constiltiiiou, insofar as ihey affect prejudicially persons who had acquired rights as stated above. A writ in the nature of mandatnus is issued directing respondents I and 2 D to prepare the seniority list afresh in the light of the deci- sion of this Coiirt taking into consideration the military service rendered by the petitioners as well as the ap- pellants."

The question whether Rule 2 as amended is discriminatory and viola- E tive of Articles 14 and 16 t>f the Constitution was not specifically considered. the appellants other than 4, 5, 7 and 8 and the writ petitioners who have come before this Court under Article 32 of the Constitution catt succeed in their challenge only if it is made out that Rule 2 as amended is discriminatory and that these appellants and similarly situated persons are tlenietl equal protection under law and equal opportunity.

It has been tontencied that the amendment confining military service f6r those who joined during the operation of emergency bet- ween 26.10.1962 and IO. l.1968 and denying the same benefit of service to those who joined prior to the proclamation of the emergency is unreasotiabie and arbitrary based on no classification and thus viola- tive of Article 14 of the Constitution of India. It is said that there is no rationale behind the definition of 'military service' by excluding the military personnel who also served during the emergency period. It is said that the differentiation is on the date of recruitment and the classification on the basis of date of recruitment is unreasonable and unconstitutional and violative of Article 14 of the Constitution. The

OHAN SINGH v. STATE OF HARYANA IFATHIMA BEEVI, J.l 431

aj:lpeltartts stated that the ex-servicemen who joined the army during the einergency and persons like the appellants who have joined the common stream of service to perform the same duties form one class atid it is tHlt perrttlssible to make any classification on the basis of their origin. Such classification will be unreasonable and entirely irrelevant to the object sought to be achieved and the classification is not founded on any intelligible differentia according to the appellants. It is submitted that those who served during the proclamation of the emergency constitute one class in itself as far as duties, powers, privileges and period of service during the emergency are concerned arid the differential treatment meted out to the personnel who joined earlier and were released later amounts to the deniai of equal tij:lpottunity it! the matter of employment, and, thus violates Article

16. Tlie differentia on the basis of amending rules has no nexus to the c objective sought to be achieved, it is argued. We do not agree. The State couid amend the 1965 Rules and Withdraw the concession in exercise of the power conferred under Article 309 of the Constitution. It is open to the State to lay down any rule for determining seniority in service and the Court cannot interfere unless it results in inequality of opportunity among the employees belonging to the same class. When a rule is challenged as denying equal protection, the question for determination by the Court is not Whether it has resulted in inequality but whether there is some diffe- rence which bears a just and reasonable relation to the object of legis- lation. Mere differentiation or inequality of protection does not per se amount to discrimination within the inhibition of equal protection Clause under Article 14. To attract the attention of the clause, it is necssary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the Legislature has in view. The Court has to examine Whether the classification can be deemed to rest upon differentia discriminating the persons or things grouped from those left out and whether such differentia has a reasonable relation to the objects sought to be achieved irrespective of whether the rule is intended to apply to person or thing or to a certain class of persons or things. Therefore, the policy or the object of the legislation are rele- G vant consideration. On account of the external aggression by the Chinese forces in the Indian territory, the emergency was imposed by the President of india in 1962. In order to attract young men to join military service at that critical juncture, the Central Government and the State Govern- ments issued different circulars and advertisements on the radio and in H

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the press promising certain benefits to be given to those young men who join the military service.

The young persons who have joined the military service during the national emergency and those who were already in service and due IQ exigencies of service had been compelled to serve during the emergency form two distinct classes. The appellants and the petitio- ners who joined the army before the proclamation of emergency, had chosen the career voluntarily and their service during emergency was as a matter of course. They had no option or intention of joining the government service during the period of emergency as they were already serving in the army. The persons who enrolled or commis- sioned during the emergency, on the other hand, had no account of the c call of the nation joined the army at that critical juncture of national emergency to save the motherland by taking a greater risk where danger to the life of a member of the armed forces was higher. They include persons who could have pursued their studies, acquired higher qualifications and joined a higher post and those who could have D joined the government service before attaining the maximum age pre- scribed and thereby gained seniority in the service. Forgoing all these benefits and avenues, they joined the army keeping in view the needs of the country and assurances contained in conditions of service in executive instructions. The later form a class by themselves and they cannot be equated to those who joined the army before the proclama- E tion of the emergency. Benefits had been promised to such persons who heeded to the call of the nation at that critical juncture. Older man by joining the military service lost chance of joining other govern- ment service and when he joins such service on release from the army younger man had already occupied the post. To remove the hardship, the benefit of military service was sought to be given to those young persons who were enrolled/commissioned during the period of emergency forgoing their job opportunities. The differentia is, there- fore, intelligible and has a direct nexus to the objects sought to be achieved. The petitioners, cannot, therefore, challenge the rule as discriminatory or arbitrar. Such of those appellants and the petitioners who have joined the army before the proclamation of the emergency are not, therefore, entitled to the benefit of military service as per the Emergency Concessions Rules.

Since the proviso to Rule 4(ii) has already been struck down in Raj Pal Sharma's case (supra), such of the appellants who had been released from the military service on compassionate grounds are entitled to the benefits of their military service.

DHAN SINGH v. STATE OF HARYANA IFATHIMA BEEVI. J.] 433

The Petitioner in Writ Petition No. 959 of 1989 is not entitled to any further relief as is concluded by the earlier decision of this Court in Ex-Capt. Randhir Singh Dhu// v. S.D. Bhambri & Ors., (1981] 3 SCC 55 and the clarification in Ex-Capt. A.S. Parmar & Ors. v. State of Haryana & Ors., [ 1986] (Supp.) SCC 283 that it is only the service rendered during the period of emergency that could be taken into account and not any other period. In disposing of the review petition, B Chinnappa Reddy, J. observed as under: "Though the judgment in K.C. Arora's case appears to proceed as if the change was brought about in 1976 ·even in regard to the length of military service to be taken into account, that question was not actually decided. On the other hand, in R.S. Dhull v. S.D. Bhambri, (1981] 3 SCC c 55, referring to Rule 2, it was expressly stated by this Court that the concession in regard to seniority was admissible in respect of the military service rendered during the opera- tion of the emergency only and not for any military service after the termination of the emergency. D

E It is, therefore, clear that military service rendered subse- quent to the lifting of emergency cannot be taken into account for the purpose of reckoning the seniority in the ciViI post." The service of the petitioner after the lifting of the emergency could not, therefore, count for determining his seniority and whatever benefits he is entitled to had been granted earlier. Writ Petition Nos. 1159/89 and 959/89 are accordingly dismissed. Civil Appeal No. 1060 of 1990 is partly allowed and a writ in the nature of mandamus is issued directing the respondents 1 and 2 to give the appellants 4, 5, 7 and 8 who joined the service during the period of operation of the emergency the benefit of their military service. The appeal is dismissed in other respects. In the facts and circumstances of the case, we make no order as to costs. -

G.N. Appeal partly allowed and Petitions dismissed.