IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 14483 of 2008. Reserved on: 29.08.2011. Decided on: 16.09.2011. _____________________________________________ Ashwani Kumar Gupta. … Petitioner. Versus The State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No.1 to 5. Mr. Varun Chandel, Advocate vice Mr. Sandeep Sharma, Assistant Solicitor General of India for respondent No.6. Rajiv Sharma, Judge: Petitioner joined the Indian Army on 23.8.1963. He was discharged from the Indian Army on 29.12.1969. Thereafter he was appointed as Clerk in the office of Deputy 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - Commissioner, Kangra on 11.3.1971 against the post reserved for Ex-serviceman. He was transferred to the office of Deputy Commissioner, Hamirpur in the month of January, 1974. He was promoted to the post of Senior Assistant in 1983. The petitioner made a representation for counting the approved military service to seek the benefits under Rule 5 of the Demobilised Armed Forces Personnel (Reservation of Vacancies in H.P. State Non- Technical Services) Rules, 1972 (hereinafter referred to as “the Rules” for brevity sake). Same was rejected by the State on 14.8.1986. The petitioner retired from service on 30.4.2001. The period of military service rendered by the petitioner w.e.f. 23.8.1963 to 29.12.1969 was not counted towards pension as per Rule 19 of the Central Civil Services (Pension) Rules, 1972. The case of the petitioner was taken up by the Deputy Commissioner, Hamirpur with the Deputy Commissioner, Kangra. The Deputy Commissioner, Kangra vide communication dated 26.8.2003 informed the Deputy Commissioner, Hamirpur that the petitioner was, in fact, appointed against the post reserved for Ex-Serviceman. Thereafter the Deputy Commissioner, Hamirpur took up the matter with the Divisional Commissioner, Mandi vide letter dated 29.5.2004. The Divisional Commissioner rejected the case of the petitioner on 23.8.2004 on the ground that the petitioner has not exercised the option under Rule 19 of the Central Civil Services (Pension) Rules, 1972. The petitioner - 3 - made two representations on 30.8.2005 and 2.3.2006 for counting the past military service for the purpose of pension on reemployment. It has come in the reply filed by respondent No.3 that the petitioner was, in fact, appointed against the post reserved for Ex-Serviceman. According to the averments contained in the reply that since the petitioner has joined the civil service on 11.3.1971 and the Demobilised Armed Forces Personnel (Reservation of Vacancies in H.P. State (Non-Technical Services) Rules, 1972 came into force on 28.3.1972, his case could not be considered for giving of benefits towards pension. The case of the petitioner as far as counting of military service for pension is concerned, it is averred that since the petitioner was not granted pension, he was not entitled to get the approved military service counted towards the pensionary benefits under Rule 19 of the Civil Services (Pension) Rules, 1972. 2. Mr. Ajay Sharma, learned counsel for the petitioner has strenuously argued that the military service rendered by the petitioner was to be counted for the purpose of seniority. He then argued that it was the duty cast upon the respondents to seek option of the petitioner to get the benefits of the period of military service towards pension. 3. Mr. Vikas Rathore, learned Deputy Advocate General has vehemently argued that the case of the petitioner is not - 4 - covered under Rule 19 of the Central Civil Services (Pension) Rules, 1972. 4. It is not in dispute now that the petitioner was appointed against the post reserved for Ex-serviceman, as Clerk in the office of Deputy Commissioner, Kangra, on 11.3.1971. He was promoted to the post of Senior Assistant in the year 1983. It was incumbent upon the respondents to seek option of the petitioner at the time of initial appointment and also at the time of his confirmation as per Rule 19, Instruction No.(1) appended below Rule 19, dated 26.2.1988. There is no material placed on record by the respondents that the option of the petitioner was sought as per Rule 19 and the instructions appended thereto at the time of his initial appointment and also at the stage of confirmation. It can safely be presumed that the petitioner was confirmed before his promotion as Senior Assistant since he was appointed as Clerk in 1971. The case of the petitioner has been recommended by the Deputy Commissioner, Hamirpur on 29.5.2004 and the same has arbitrarily been rejected by the Divisional Commissioner, Mandi on 23.8.2004 vide Annexure A-4. It was the duty of the employer to seek petitioner’s option whether he wanted to get the benefit of military service rendered before joining civil employment. Since the petitioner was not granted any pension by the military authorities, there was no occasion for him to refund the same. The applicability of - 5 - Rule 19 of the Central Civil Services (Pension) Rules, 1972 is also not dependent on whether the incumbent is granted pension when the incumbent is discharged from the Army. This legal point raised in this petition has also been gone into by this Court in CWP(T) No.10333 of 2008 titled Ranjit Chand Katoch versus State of Himachal Pradesh and another, decided on 24.3.2011 as under (paras 5, 6, 7, 8 and 9):- “According to the instructions issued on 26.2.1988, in order to facilitate compliance with the 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. 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. - 6 - 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 require in writing him to exercise the option within three months of the issuance of such order. 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. 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.” 5. It is clear from the judgment cited hereinabove that the State Government has issued notification dated 22.8.1994 - 7 - whereby the petitioner could give his option within a period of six months to get the military service counted for the purpose of pension. 6. So far as the relief of grant of benefit under the Demobilised Armed Forces Personnel (Reservation for vacancies in H.P. State Non Technical Services) Rules, 1972 is concerned, the same is belated and cannot be granted at this belated stage. In case the petitioner is granted the said benefit, it will affect the seniority of other incumbents, who have not been arrayed as party-respondents. 7. Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. Annexure A-4 dated 23.8.2004 is quashed and set aside. Respondents are directed to combine the military service and civil service rendered by the petitioner for the purpose of pension, within a period of eight weeks after the production of certified copy of this judgment by the petitioner before the competent authority. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. September 16, 2011. (sck).