1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.10007/2005 Hari Singh Arya Vs. State & Ors. Date of order : 25/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri S.K. Singodiya for the petitioner. Ms. Priyanka Pareek, Dy. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioner who was serving on the post of Teacher and has retired as such on 28.2.2001 with the prayer that the respondent Education Department be directed to count his services rendered in the Indian Army from 5.1.1963 to 3.12.1964. It has further been prayed that thereafter petitioner joined the training course for the period from 4.12.1964 to 22.11.1966 and it be also counted. Petitioner joined the services of the respondent Government as Teacher Gr.III on 22.11.06. According to the petitioner, he was earlier also appointed as Teacher with the respondents vide order dated 10.10.1962, but in the meantime china war started and therefore he left that appointment to join Indian Army. Contention of the learned counsel for the petitioner is that Rule 19 of the Civil Services (Pension) Rules provides that the service which was followed by appointment in civil services was required to be counted 2 for the purpose of qualifying period of service subject to revision of pension, gratuity received in earlier period of service in 36 installments together with interest @ 6% per annum. Learned counsel submits that Rule 19(1)(iii) of Rajasthan Civil Service (Pension) Rules, 1996 provides that the order for allowing such service as part of the qualifying service shall also be deemed to include the condition of interruption in service, if any, in the military service if it does not exceed two years. In the present case, learned counsel submitted that his entry to the military service and civil service is less than two years from 4.12.1964 to 27.11.1996, therefore, this Rule should have not been applied in the case of the petitioner. It is contended that petitioner is ready to pay / deposit whatever amount received from the military service with the Government. Ms. Priyanka Pareek, learned Deputy Government Counsel opposed the writ petition and submitted that no such option was submitted as envisaged in Rule 19 at the time of joining the service. There was no entry in the service book about his previous military service. The military service rendered by the petitioner is therefore not entitled to be counted. Upon hearing the learned counsel for 3 parties and perusing material on record, I find that so far the period from 5.1.1963 to 3.12.1964 rendered by the petitioner in military service is concerned, the same is substantiated from the certificate issued by the Secretary, Zila Sainik Board, District Jhunjhunu dated 11.3.87. Counsel for the petitioner has produced for perusal of the Court copy of the discharge certificate, which also proves this fact. Learned counsel for petitioner has contended that such military service is counted as part of his qualifying service for the purpose of pension in civil employment as per Rule 19 because interruption between the two is less than two years. However, learned counsel for the petitioner could not show that he exercised such option or refunded the amount. It is therefore presumed that he did not do so, but then, in the facts of the case, I find him entitled to count such military service towards qualifying service for grant of pension in civil services because he has actually rendered such service. For non-exercise of option in time, he may not be granted interest, due to consequential increase in the pension/retiral benefit of the petitioner. At the same time, the respondent may also not charge any interest on the amount which he received from the Indian army for his military service and which he may now deposit. 4 In the result, this writ petition is allowed. Petitioner is directed to deposit the amount of gratuity or any other amount which he received from Indian army in view of the service rendered by him within a period of one month and on his doing so, the respondent shall process his case for counting his military service towards qualifying service of pension and accordingly redetermine his pension and other retiral dues which shall be paid within two months therefrom. (MOHAMMAD RAFIQ), J. RS/-