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1996(3) Supreme 68
SUPREME COURT OF INDIA
J.S. Verma, S.P. Bharucha and K. Venkataswami, JJ.
Hav Bhagat Singh, etc. -Appellants
versus
State of Haryana & Anr., etc. -Respondents
Civil Appeal No. 7390 of 1994
with
Writ Petition (C) No. 571 of 1994
Both Decided on 15-3-1996
Held : The Rules offered benefits to those who joined State Government service after having seen military service during the Emergency. It was open to the State to withdraw the offer, but not qua those who had already accepted the offer and joined the State Government service. Hence was rendered the decision in K.C. Arora s case. The State Government did not withdraw the offer wholly but restricted it to those who had enrolled or were commissioned in the armed forces during the Emergency. The State Government was entitled to do so. In our view, there is a clear and intelligible difference between those who had already chosen the armed forces as a career when the Emergency was declared and those who, in response to the nation s call, joined the armed forces after the Emergency was declared. It was in the country s interest at that critical juncture to make service in the armed forces attractive and compensate those who would otherwise have chosen other vocations. The grant of benefits to the latter class while denying them to the former class is in no way arbitrary or discriminatory. (Para 10)
Further held : The Rules did not confer an indefeasible right on all persons who had served in the armed forces during the Emergency. Only those of them who had joined the State Government s service while the unamended Rules operated acquired a vested right, by reason of their having accepted the offer made thereby, which could not be defeated by the amendment. (Para 11)
JUDGMENT
Bharucha, J.-The appeal aforementioned impugns the order of summary dismissal of a writ petition filed by the appellant in the High Court of Punjab & Haryana. Though the order only says "dismissed", it was clearly passed by reason of the judgment of this Court in Dhan Singh & Ors. v. State of Haryana & Ors.1 The writ petition arises upon facts similar to those in the appeal and it seeks reconsideration of the aforementioned judgment.
2. The facts that we state are of the appeal. The appellant was enrolled as a Sepoy in the Army on 30th January 1959. He served in the Army until some date in the year 1976, by which time he had been promoted to the post of Hawaldar. In 1978 the appellant joined the service of the State of Haryana (the first respondent) as a clerk.
3. The Government of Punjab had framed the Punjab National Emergency (Concession) Rules, 1965, and they were adopted by the State of Haryana when it was formed. These Rules gave benefits to persons who had been in military service before joining Government service, "Military service" was defined in Rule 2 thus :
"For the purposes of these Rules the expression Military Service means enrolled or Commissioned service in any of the three Wings of the Indian Armed Forces (including service as a Warrant Officer) rendered by a person during the period of operation of the proclamation of Emergency made by the President under Article 352 of the Constitution of India on October 26, 1962 or such other service as may hereafter be declared as Military Service for the purposes of these Rules. Any period of Military Training followed by Military Service shall also be reckoned as Military Service."
On 4th August, 1976, the aforesaid definition was amended by the State of Haryana so that it read thus :
"For the purposes of these rules the expression Military 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 Constitution of India on October 26, 1962 in any of the 3 Wings 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 Military service for the purpose of these Rules. Any period of Military Training followed by Military service shall also be reckoned as Military Service."
4. It will be seen that military service as originally defined meant service, enrolled or commissioned, in the armed forces rendered during the period of operation of the Emergency. (The Emergency was that proclaimed in 1962). By the amended provision military service meant only the service that was rendered by a person who was enrolled or commissioned in the armed forces during the period the Emergency remained in force. The amendment, therefore, curtailed the definition of military service and excluded therefrom those who had been enrolled or commissioned before the proclamation of the Emergency and had served during its operation.
5. The validity of the retrospective application of the amended definition of military service came to be considered by this Court in Ex. Capt. K.C. Arora and Anr. v. State of Haryana and Ors.2 The appellants were persons who had already entered Government service. It was held that the amendment "restricted the benefits of military service upto January 10, 1968, the date on which the first emergency was lifted with the result that the vested rights which had accrued to the petitioners in 1969, 1970 and 1971 have been taken away". The notification amending the definition of the expression military service in Rule 2 was declared to be ultra vires the Constitution insofar as it prejudicially affected persons who had already acquired rights.
6. The validity of the amended definition came up for the consideration of this Court again in Dhan Singh & Ors. v. State of Haryana & Ors. (supra), and this is the judgment whose reco
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