S.S. Sandhawalia, J. - (1.) WHETHER the valiant volunteers who willingly answer the call to arms in face of war, form a class apart from men who choose the services as a career or employment in times of peace, is the significant question which falls for determination before this Full Bench on a reference. To my mind, the answer is plain - - that they do.
(2.) I have the privilege of perusing the judgment recorded by my learned brother G. C. Mittal, J., and it is with considerable regret and equal diffidence that I feel compelled to record a dissent therefrom. With the greatest respect, if I may say so, the central and the focal question aforesaid which called for an answer seems to have got diffused in the peripheral verbiage of ancillary and collateral issues and, therefore, perhaps the resultant answer which has been arrived at. The facts appear in considerable detail in the judgment of my learned brother G. C. Mittal, J. Nevertheless to maintain the homogeneity of this judgment some reference to them becomes inevitable Dei Chand, Petitioner, joined the Indian Air Force on the 9th of December, 1960, as a regular combatant long before the declaration of the Emergency and served for a considerable period thereof till the year 1969 in the later part whereof he was released. Thereafter he competed in an open examination of the Haryana Civil Service (Executive Branch) and other Allied Services held in 1970 -71 by the Haryana Public Service Commission and was selected in the general category of Allied Services against a reserved quota for the Military released personnel. He joined as Assistant Excise and Taxation Officer on the 22nd of May, 1973, but it was not till the 20th of February, 1976, that, - -vide annexure P. 2, the Governor of Haryana ordered that he had completed his period of Probation satisfactorily with retrospective effect from the 30th of September, 1975. However, it is the case that even earlier Petitioner on the 2nd of January, 1974, had put in an application seeking the grant of military service benefits under the statutory rules which were then in existence. It appears that the correct application of those rules posed considerable difficulties for the Government and the representation of the Petitioner remained pending for want of certain clarifications which were sought from the Respondent -State. As will appear hereinafter, the question was also pending for decision before the High Court and it was only on the 12th of December. 1975, that the judgment was rendered. Thereafter the State of Haryana effected an amendment in the definition of military service on the 4th of August, 1976, giving retrospective effect thereto. As a necessary consequence of this amendment the Petitioner was informed, - -vide annexure P. 4, dated 15th of January, 1977, that because he had not been enrolled in the service during the period of emergency, therefore, he could not be given the benefit of military service in his civil employment. His representation was, therefore, rejected on this consideration. Aggrieved thereby the Petitioner has preferred this writ petition challenging the refusal to grant him the benefit of military service and in substance assailing the constitutionality of the amendment effected in the rules.
(3.) IN order to appreciate the issue in controversy it is both apt and indeed necessary to briefly notice the legislative history of the statutory rules around which the argument revolves. The composite State of Punjab on the 20th of July, 1965, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. had promulgated the Punjab Government National Emergency (Concession) Rules. 1965, in order to afford certain concessions with regard to increment, seniority, pension and other service conditions to the persons who had rendered 'military service' as defined in Rule 2 thereof. It was the stand of the Respondents that despite some ambiguity in the language of the aforesaid definition, the intent of the framers of the rules as also its subsequent application throughout the composite State of Punjab and later in the successor State of Haryana was to the effect that the benefit of military service was to be accorded to only those who had willingly come forward and had been enrolled or commissioned during the period of Proclamation of emergency and not earlier or later. The matter was, however, not free from difficulty and arose for consideration before this Court in Indraj Singh v. The State of Haryana and Ors., (1979) 3 S.L.R. 441. Therein the firm stand taken on behalf of the Respondent -State was that the Petitioner was not entitled to the benefit as he had joined the military service earlier to the declaration of emergency. However, this stand of the Respondent -State was not accepted and Justice A. S. Bains ruled that under existing rules the benefit was available to persons who had rendered military service during the period of emergency whether they were enrolled earlier to the Proclamation of emergency or during the period of emergency. Apparently because of this judgment the Respondent State of Haryana on the 4th of August, 1976, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India promulgated the Punjab Government National Emergency (Concession) Haryana Second Amendment Rules, 1976. Thereby the definition of Rule 2 in the existing rules was entirely substituted in order to give effect to the intent of the Respondent -State that the benefit of military service. should be confined to persons who had been enrolled or commissioned during the period of operation of the emergency and not to others. This amendment was deemed to have come into force on the 1st day of November, 1966.;