IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 10333 of 2008. Reserved on: 11.03.2011. Decided on: 24.03.2011. __________________________________________________________ Ranjit Chand Katoch. … Petitioner. Versus State of Himachal Pradesh & another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, Judge: Petitioner was enrolled in the Indian Air Force on 26.6.1964. He was discharged on 30.6.1979. He was appointed as Excise and Taxation Inspector against the vacancy reserved for Ex-Servicemen on 28.3.1984. He was given the benefit of approved military service and seniority on 22.8.1986. He was confirmed on 28.1.1992 with effect from 5.6.1987. He made a representation for 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - counting his approved military service towards pensionary benefits on 2.5.2002. Same was rejected on 27.5.2003. He made second representation on 31.5.2003 and the same stood rejected on 6.11.2003. 2. Mr. Dilip Sharma, learned counsel for the petitioner has strenuously argued that his client was entitled to get the approved military service counted toward pensionary benefits under Rule 19 of the Central Civil Services (Pension) Rules, 1972. According to him, his client was neither given opportunity to exercise his option at the time of his initial appointment on 28.3.1984 nor when he was confirmed with effect from 5.6.1987 vide letter dated 28.1.1992. He lastly contended that his client’s option was also not sought on the basis of notification dated 22.8.1994. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that since the petitioner has not given his option, as per Rule 19 of the Central Civil Services (Pension) Rules, 1972, his approved military service could not be counted for qualifying service. 4. Petitioner is an Ex-Serviceman and was appointed against the vacancy reserved for Ex- Servicemen, as Excise and Taxation Inspector on 28.3.1984. His pay and seniority has been fixed as per - 3 - letter dated 22.8.1986 by considering his approved military service. It will be apt at this stage to take note of Rule 19 of the Central Civil Services (Pension) Rules, 1972, which reads thus:- “19. Counting of military service rendered before civil employment. (1) A Government servant who is re-employed in a civil service or post before attaining the age of superannuation and who, before such re-employment, had rendered military service may on his confirmation in a civil service or post, opt either – (a) to continue to draw the military pension or retain gratuity received on discharge from military service, in which case his former military services shall not count as qualifying service; or (b) to cease to draw his pension and refund– (i) the pension already drawn, and (ii) the value received for the commutation or a part of military pension, and (iii) the amount of [retirement gratuity] including service gratuity, if any, and count previous military service as qualifying service, in which case the service so allowed to count shall be restricted to a service within or outside the employee’s unit or department in India or elsewhere which is paid from the Consolidated Fund of India or for which pensionary contribution has been received by the Government: - 4 - Provided that – (i) the pension drawn prior to the date of re-employment shall not be required to be refunded, (ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on re-employment shall be refunded by him. (iii) the element of pension equivalent of gratuity including the element of commuted part of pension, if any, which was taken into account for fixation of pay shall be set off against the amount of [retirement gratuity] and the commuted value of pension and the balance, if any, shall be refunded by him. EXPLANATION.– In this clause, the expression ‘which was taken into account’ means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial re-employment, and the expression ‘which was not taken into account’ shall be construed accordingly. (2) (a) The authority issuing the order of substantive appointment to a civil service or post as is referred to in sub- rule (1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of date of issue of such order, if he is on leave on that day, within three months - 5 - of his return from leave, whichever is later and also bring to his notice the provisions of Clause (b). (b) If no option is exercised within the period referred to in Clause (a), the Government servant shall be deemed to have opted for Clause (a) of sub- rule (1). (3) (a) A Government servant, who opts for Clause )b) of sub-rule (1) shall be required to refund the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, the first instalment beginning from the month following the month in which he exercised the option. (b) The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. (4) In the case of a Government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the [death gratuity] which may become payable to his family. (5) When an order is passed under this rule allowing previous military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the military and civil services.” 5. According to the instructions issued on 26.2.1988, in order to facilitate compliance with the - 6 - requirement of exercising option in time, it has been decided that the Administrative Authority concerned should incorporate in writing in the order of re- employment itself a clause to the effect that if the re- employed Ex-Serviceman desires to take advantage of the retirement benefits based on combined military and civil services, he should exercise option within a period of one year from the date of his re-employment. The State Government has also issued instructions on 22.8.1994 to enable an ex-serviceman to take advantage of the retirement/pensionary benefits based on the combined military and civil service, for which the option was to be exercised within a period of six months. 6. What emerges from the plain reading of Rule 19 and the decision taken on 26.2.1988, is that the re- employed Government servant can opt to continue to draw military pension or he can get the previous military service counted as qualifying service. However, he will cease to get pension already drawn and the value received for the commutation or a part of military pension and the amount of retirement gratuity including service gratuity. 7. According to sub-rule (2)(a) of Rule 19, the authority while issuing order of substantive appointment to a civil service or post shall alongwith such order - 7 - require in writing him to exercise the option within three months of the issuance of such order. 8. In the instant case, the petitioner has been confirmed vide letter dated 28.1.1992 with effect from 5.6.1987. Respondents have not placed any material on record to establish that alongwith the letter dated 28.1.1992 the petitioner was called upon to exercise his option. The petitioner has also not been given the opportunity by bringing to his notice the notification dated 22.8.1994 issued by the State Government whereby he could also give his option within a period of six months. These provisions are benevolent and are required to be considered liberally. The objective of these Rules is to facilitate an ex-serviceman to combine Military and civil service for the purpose of pension. The petitioner has made a representation before his retirement on 2.5.2002 to get the benefit of approved military service towards pensionary benefits under Rule 19. Same was rejected on 27.5.2003 vide Annexure A-4 without a speaking order. Once the representation has been made by the petitioner, it should have been considered in accordance with law. 9. Mr. Dilip Sharma, learned counsel for the petitioner has brought to the notice of the Court the case of one Shri Bidhi Chand. In his case respondent-State - 8 - has permitted him to get the benefit of military service combined with civil service, on 4.7.1992 by granting relaxation in prescribed time limit. He was working as Junior Stenographer in the Excise and Taxation Department. In the instant case, the respondent-State should have considered the case of the petitioner for relaxation in order to get the benefit of Rule 19 of the Central Civil Services (Pension) Rules, 1972 at par with Shri Bidhi Chand. 10. What emerges from the observations and discussion made hereinabove, is that the respondent- department has not brought to the notice of the petitioner at the time of his confirmation in writing that he could opt for combining military service and civil service, as per sub-rule (2) of Rule 19. The respondents have also not taken into consideration the instructions issued on 26.2.1988 and 22.8.1994. Mr. Dilip Sharma submits that his client is ready and willing to refund the pension, gratuity etc. received from his earlier military service as provided in Rule 19. 11. Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. Annexures A-4 and A-7, dated 27.5.2003 and 6.11.2003 respectively are quashed and set aside. Respondents are directed to pay and release the petitioner the - 9 - pensionary/ retiral benefits by combining his military and civil service, within a period of two months after the production of certified copy of this judgment. The petitioner shall refund the pension, gratuity etc. received by him in respect of his earlier military service, within a period of one month. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. March 24, 2011. (sck).