IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 12495 of 2008. [OA (D) No.170 of 2005] Date of Decision: 15th September, 2011. _______________________________________________________ Shri Sarb Singh ….Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Ranjan Sharma, Advocate. For the respondents: Mr. A.K. Bansal, Additional Advocate General and Mr. P.M. Negi, Deputy Advocate General. _________________________________________________________ Surinder Singh, J. (Oral). The petitioner by means of present petition, which was initially preferred before the learned Administrative Tribunal and registered as OA (D) No.170 of 2005 and after its abolition it was transferred to this Court and registered as CWP (T) No.12495 of 2008, sought the relief to count the military service rendered by him as qualifying service towards the civil service for the purpose of pension and retiral gratuity. 2. The petitioner, infact, served in the Indian Army with effect from 31.1.1963 to 31.1.1991, i.e., for 28 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - years. After his discharge from Army service, he received gratuity amount to the tune of `41,350/-. Being an ex-serviceman, the petitioner was appointed as Senior Lab-Technician against a general (un-reserved post) in the pay scale of `1410- 2480 on 18.4.1994. He joined as such at PHC, Sainj (Kullu). The respondent-department vide order dated 23.8.1995 fixed him on the basic pay last drawn by him in the Army at `1900/- per month, which was protected as Senior Lab-Technician w.e.f. 18.4.1994. The petitioner was not confirmed, but as per Government of India’s circular dated 28.3.1988 which was adopted by the State Government vide OM No.PER (AP-II) B (15)2/75-Pt dated 14.6.1994, his confirmation was decided to be made from the availability of a permanent vacant post, whereas the confirmation was required to be made on the successful completion of the probation period to bridge-up the gap between permanent and the temporary post for the pensionary benefits. 3. The petitioner continued serving in the respondent-Department treating himself to be a confirmed employee against the civil post, but no formal order of his confirmation was issued. He was superannuated on attaining the age of retirement - 3 - and simultaneously the respondent-Department confirmed w.e.f. 1.4.2003, which deprived him of the right to count the military service rendered by him prior to the joining of civil post. 4. The respondents resisted the claim on the ground that the military service of the petitioner was not included against the service rendered in the civil post for the reason that he did not opt for getting the benefit of his military service nor the amount of pension and gratuity received from the Army was deposited by him and also that the petitioner was not appointed against the reserved post meant for the ex-serviceman. 5. Heard and gone through the record. 6. In so far as the objection of the respondents with respect to the second point, i.e., the petitioner was not appointed against the reserved post and that was one of the reasons that his previous service was not counted for the purpose of pension is concerned, for that Rule 5 of the Demobilized Armed Forces Personnel (Reservation of vacancies in HP State Non-Technical Services) Rules, 1972 needs to be noted, which says that only the period of approved military service rendered after attaining the minimum age prescribed for appointment to the - 4 - service concerned by the candidates appointed against reserved vacancies under the relevant rules, shall be counted towards fixation of pay and seniority in that service and not for retiral benefits. Therefore, this point taken by the respondents is rejected. 7. So far as non-exercise of the option as aforesaid, by the petitioner is concerned, for that sub-rule (2) of Rule 19 of the Central Civil Services (Pension) Rules, 1972 takes care and is quite relevant in this context, which reads as under: “19. Counting of military service rendered before civil employment:- (1)………. ……….. (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 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).” 8. The bare perusal of the above Rule makes it clear that it is for the authority issuing the order of substantive appointment to a civil post to require in writing from the Government servant to exercise his - 5 - option. It is also relevant to mention here that the State Government has 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. But there is, however, nothing on record to show that the Government servant was at any point of time during his service was asked by the respondent-Department to exercise his option. 9. The Government of India’s decision No.1 below Rule 19 issued on 26.2.1988, clarifies that in order to facilitate compliance with the requirement of exercising option in time, the Government has decided that the Administrative Authorities concerned shall incorporate 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 one year from the date of his re-employment. 10. The combined reading of both these circulars, vis-a-vis rule aforesaid makes it clear that the re- employed Government servant can opt to continue - 6 - to draw military pension or 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, as held by this Court in Ranjit Chand Katoch v. State of Himachal Pradesh and another, [CWP (T) No.10333 of 2008), decided on 24.3.2011 and Subhash Chand v. HP State Electricity Board and others, [CWP (T) No.12458 of 2008), decided on 25.8.2011. 11. In view of the afore-stated position, the petition is allowed and the respondent-Department is hereby directed to call for the option from the petitioner within a period of one month from the receipt of the copy of this judgment and the petitioner shall exercise his option within a period of two months thereafter. On the receipt of the option from the petitioner, the respondent-Department shall finalize the case of the petitioner and accord the pension and gratuity in accordance with rules within a period of two months thereafter. The aforesaid consequences shall follow from the date of retirement. Needless to say that the petitioner shall - 7 - deposit the pension and gratuity received from the Army in accordance with law. 12. The petition stands disposed of. September 15, 2011. (Surinder Singh), J. (rc)