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

Citation: [1990] SUPP. 3 S.C.R. 423

Court: Supreme Court of India

Bench: L.M. SHARMA, M. FATHIMA BEEVI

Case summary

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...

Judgment text

The Judgment of the Court was delivered by 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. The appellants are ex-servicemen re-employed in Government service in the State of Haryana. They served in the Indian Anny puring 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 Government National Emergency (Concessions) Rules, 1965, (Hereinafter 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 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 between 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 violative 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 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 difference which bears a just and reasonable relation to the object of legislation. 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 relevant 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 Governments issued different circulars and advertisements on the radio and in 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 petitioners 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 commissioned during the emergency, on the other hand, had no account of the 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 joined the government service before attaining the maximum age prescribed 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 proclamation 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 government 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, therefore, 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 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, 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 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 operation of the emergency only and not for any military service after the termination of the emergency.

It is, therefore, clear that military service rendered subsequent 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.