Case Note & Summary
The matter arose from an appeal by special leave filed by the State of Punjab and another against the judgment of the Punjab and Haryana High Court dated July 27, 1979 in Writ Petition No.3450 of 1979. The dispute concerned the respondent's claim for seniority benefits under the Punjab Government National Emergency (Concession) Rules, 1965 for military service rendered during the emergency. The respondent initially joined as Sub-Inspector with Professional Tax (Finance Department) on November 7, 1962. During the emergency, he joined as a Commissioned Officer in the Army on October 26, 1963 and was released on September 18, 1969 (the judgment later also refers to September 19, 1969). After release, he did not rejoin his previous post; instead, he applied for and was selected as Taxation Inspector and joined on January 29, 1970. He was given the benefit of seniority with effect from October 26, 1963, the date he joined the Army, under Rule 4(ii) of the Rules. While continuing as Taxation Inspector, he applied for direct recruitment to the post of Assistant Excise and Tax Officer, was selected, and was appointed in 1972. He then sought to have the same military service period from October 26, 1963 counted again for seniority in the new post. The High Court directed that he be given seniority from October 26, 1963 with all consequential benefits, leading to this appeal. The core legal question before the Supreme Court was whether the respondent was entitled to the benefit of seniority from October 26, 1963 for a second time, after having already availed of the benefit in his earlier appointment as Taxation Inspector, and whether Rule 4(ii) could be applied to his subsequent direct recruitment as Assistant Excise and Tax Officer. The Court also considered whether Rule 5 of the Rules applied. The respondent contended that Rule 4(ii) entitled him to the benefit, whereas the State argued that the concession under Rule 4(ii) was admissible only on first appointment and that the respondent had already exhausted the benefit. The State further submitted that Rule 5 had no application because the respondent did not resume the post of Sub-Inspector (Professional Tax) after release from the Army. The Court examined Rule 4(ii) and Rule 5. It noted that Rule 4(ii) provided that the period of military service mentioned in clause (i) shall be taken into consideration for determining seniority, and the concession was admissible only on first appointment. Rule 5 dealt with Government employees who were in service before joining military service and provided that the period spent on military service would count for seniority, promotion, increment, pension and leave in the service or post held immediately before joining military service. The Court found that the respondent did not rejoin his previous post as Sub-Inspector after release; therefore Rule 5 had no application. His first appointment after release was as Taxation Inspector, and he had been given seniority benefit from October 26, 1963 in that post. When he was later directly recruited as Assistant Excise and Tax Officer, that was a subsequent appointment, not a first appointment; the same period of military service could not be tagged again. The Court relied on S.B. Dogra v. State of Himachal Pradesh, (1992) 4 SCC 455, which held that the concession was admissible on first appointment only and that once availed, the benefit stood exhausted. Accordingly, the Supreme Court held that the respondent was not entitled to the double benefit and that the High Court had erred in directing seniority from October 26, 1963 for the second time. The appeal was allowed, the High Court order was set aside, and the respondent's claim was directed to be determined in accordance with the rules. No costs were awarded.
Headnote
A) Service Law - Military Service Seniority - First Appointment Concession - Punjab Government National Emergency (Concession) Rules, 1965, Rule 4(ii) - The period of military service shall count for seniority only on first appointment; once the benefit has been availed, the same period cannot be claimed again in a subsequent direct recruitment appointment. The respondent had already received seniority benefit from October 26, 1963 when appointed as Taxation Inspector; later direct recruitment as Assistant Excise and Tax Officer did not revive the exhausted benefit. Held that the High Court erred in granting seniority from October 26, 1963 for the second time; appeal allowed and High Court order set aside (Paras 1-5). B) Service Law - Military Service Seniority - Applicability of Rule 5 - Punjab Government National Emergency (Concession) Rules, 1965, Rule 5 - Rule 5 provides that military service counts for seniority, promotion, increment, pension and leave in the service or post held immediately before joining military service, and applies only if the employee returns to that same post. The respondent did not rejoin the post of Sub-Inspector (Professional Tax) after release from the Army; instead he applied for a different post as Taxation Inspector, so Rule 5 had no application. Held that the respondent's case fell under Rule 4(ii) only for his first appointment after release and not under Rule 5 (Paras 1-5).
Issue of Consideration
Whether respondent was entitled to benefit of seniority from October 26, 1963 for a second time under Rule 4(ii) of Punjab Government National Emergency (Concession) Rules, 1965 after already availing the benefit as Taxation Inspector; whether Rule 4 applies to subsequent direct recruitment as Assistant Excise and Tax Officer; whether Rule 5 applies when the employee did not rejoin the post held before military service.
Final Decision
Appeal allowed; order of High Court set aside; respondent's claim to be determined in accordance with the rules; writ petition disposed of; no costs.
Law Points
- military service period counts for seniority only on first appointment
- same period cannot be availed twice
- Rule 5 requires resumption of previous post
- concession under Rule 4(ii) is exhausted on first appointment
