Gokal Chand Mittal, J. - (1.) THE point involved in this writ petition is whether an ex serviceman who having once availed of concession under sub -rule (3) of rule 3 of the Punjab Government National Emergency (Concession) Rules 1965, as amended upto date (hereinafter referred to as the Rules), at the time of his initial appointment in a civil post would be entitled to another concession/benefit under rule 4 (ii) of the Rules For the decision of this matter, it would be useful to reproduce rule 3 (3) and rule 4 (ii) of the Rules hereunder: - 3(3). In case a person who has rendered military service does not possess the minimum qualifications prescribed for any service or post, he shall be deemed to possess these qualifications if the appointing authority certifies that such a person has acquired by experience or otherwise qualifications equivalent to those prescribed for that service or post. 4. Increments, seniority and pension: - Period of military service shall count for increments, seniority and pension as under: (i) - - - - - (ii) Seniority : - The period of military service mentioned in clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service. Provided that a person who has availed of concession under sub rule () of rule 3 shall not be entitled to the concession under this clause.
(2.) THE petitioner had joined the Indian Army on October 8, 1965, during Emergency and was released from the Army service on October 27, 1967. According to the petitioner, he was appointed as a clerk in the office of the Director, Public Instruction, Haryana, on the basis of an application which he submitted on the advertisement made by the Haryana Subordinate Services Selection Board as he fulfilled the requisite qualifications for the post. He joined the civil post on April 19, 1973. After joining the civil post, the petitioner made a representation for the grant of benefit of military service rendered by him during the period of National Emergency for purposes of fixing seniority, granting him increments and pension in accordance with the Rules, and in particular he sought the fixation of his seniority at the position of March 30, 1971, a copy of which has been annexed as annexure P 2 to the writ petition. That representation of his was rejected by the Director, Public Instruction, Haryana, vide order annexure P -4, in view of the notification of the State Government dated March 22, 1976, by virtue of which proviso was added to clause (ii) of rule 4 of the Rules. A copy of the added proviso is annexed with the petition as Annexure P -3 The petitioner has challenged the amended rule P3 and the order P -4 on the grounds, firstly, that he did not avail of any concession at the time of his initial appointment and secondly that the amendment contained in annexure P -3 is unconstitutional, illegal ultra vires and is a breach of faith on the part of the respondents towards the ex servicemen
(3.) AS regards the first ground, the petitioner has alleged in his petition that he fulfilled the requisite qualifications for being appointed as a clerk in the office of the Director, Public Instruction, and, therefore, he had not availed of any concession under rule 3 (3) of the Rules and as such he was entitled to the benefit of the military service for purposes of seniority, increments and pension under rule 4 (ii) of the Rules. The State of Haryana and the Director, Public Instruction, have controverted the allegation of the petitioner that he fulfilled the requisite qualification for the post on which he was initially appointed and have submitted that he did not fulfil the requisite qualification for that post as he was not a first class matriculate The requisite qualification prescribed for the post of a Clerk in that office is as under: - He has passed the S.L.C Exam, or is a Matriculate or post matriculate of the 1st Division or has other equal or higher qualification. It is the case of the State Government that it had issued circular letter dated June 19, 1972, taking "policy decision to the effect that where a particular division is a necessary minimum qualification such division should not be insisted upon while filling up the vacancies reserved for ex -servicemen and the minimum qualification in their cases may be deemed to have been relaxed to that extent. In para 4 of the written statement, the stand of the respondents is that since the petitioner did not fulfil the minimum qualification with regard to the division, the minimum qualification in his case was deemed to have been relaxed in accordance with the aforesaid Government instructions, read with sub -rule (3) of rule 3 of the rules, and that is how he was appointed as a clerk in the civil post on April 19, 1973. Faced with the written statement of the respondents and the policy circular dated June 19, 1971, the learned counsel for the petitioner sought to argue that although the petitioner or did not fulfil the requisite qualification of having first division, still he was not granted the benefit of rule 3 (3) of the rules as no certificate granting the concession was issued in his favour by the appointing authority and as much it cannot be said in this case that the petitioner has availed benefit of concession under rule 3 (3) of the Rules. As such, not having availed of the concession under the aforesaid rule, he would be entitled to the concession and the benefit under rule 4 (ii) of the Rules In reply to the above argument of the learned counsel for the petitioner, the learned Advocate General, Haryana, has argued that rule 3(3) is a directory provision and the word used therein is 'certifies' and it is not necessary that there should be a separate certificate in each case relaxing the qualification before the issue of the appointment letter. According to him, this would have not only delayed the appointment of ex servicemen but would have created problems for the appointing authorities of taking a separate decision in the case of each ex -servicemen which would have meant increase of unnecessary work for the appointing authorities and to overcome this difficulty, the State Government issued the policy decision to all the Heads of different Departments to make appointments of ex -servicemen by deeming the minimum qualification to have been released with regard to division. On the basis of the aforesaid policy decision of the State Government, it is submitted before us by the learned Advocate -General that the petitioner was appointed to the civil post after relaxing the minimum qualification with regard to division. This was done precisely to give the concession of rule 3(3) of the Rules to the petitioner failing which he would not have been appointed as a clerk. He goes on to argue that if this reasonable interpretation is not placed on rule 3(3), then the appointments of all ex servicemen who have been appointed in the State without a certificate in each case would be bad and void an initio and it would be open for the State Government to terminate their services on this short ground and whenever those persons will seek fresh appointments in the civil posts, they will be appointed after specifically giving the benefit of rule 3(3) of the Rules by certifying in each case as to relaxation. According to him, this course would Father harm the petitioner then help him. It is submitted that she Government took the policy decision in order to avoid different interpretations and mis -understanding of rule 3(3) by various Heads of Departments in the State. In support of his argument that rule 3(3) is directory and that liberal interpretation to placed on the same, he has relied on Guru Nanak University v. Dr. (Mrs. Iqbal Kaur Sandhu and others : A.I.R. 1976 P&H. 69, a Full Bench Judgment of this Court and has invited our attention particularly to para 29 at page 81 of the report, and the decision of this Court in C.W. No. 3102 of (1976) (Ram Datt Sharma and others v. State of Haryana C.W. No. 3102 of 1976) decided by J.M. Tandon, J., on April 12. 1979;