IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 563 OF 2001 (S/S) Chetan Lal ……Petitioner. Versus Union of India and others. ………Respondents. Present: Mr. Lokendra Dobhal, Advocate for the petitioner. Ms. Geeta Parihar, Advocate for the respondents. Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Lokendra Dobhal, Advocate for the petitioner and Ms. Geeta Parihar, Advocate for the respondents. 2. This writ petition was dismissed in default on 25.6.2003. Now a Restoration Application (MCC No. 04 of 2011) has been filed along with Delay Condonation Application (CLMA No. 12 of 2011) The reasons assigned for delay in filing the Restoration Application appears to be just and bona fide. Delay Condonation Application (CLMA No. 12 of 2011) is allowed. Delay is condoned. 3. The reasons assigned for recalling the order dated 25.6.2003 and restoring the case to its original number also appear to be just and bona fide. Therefore, Restoration Application (MCC No. 04 of 2011) is allowed. Order dated 25.6.2003 is hereby recalled and the case is restored to its original number. 4. This matter pertains to the year 2000. Subsequently, by virtue of the provisions of Section 35 of the U.P. Reorganisation Act, 2000 (Central Act 29 of 2000), the matter stood transferred from Allahabad High 2 Court to this Court, as the cause of action arises in the territory of Uttarakhand. 5. On perusal of the record, it is found that there was no counter affidavit, although Sri Lokendra Dobhal, learned counsel for the petitioner has very fairly stated that he has a copy of the counter affidavit, which he has received from the respondents. He has given a copy of the counter affidavit, which is made a part of record. 6. The principal contention of the petitioner is that he joined in I.T.B.P. in the year 1964-65 and was promoted to the post of Havildar in the year 1978 and discharged duty up to 16.1.1978, but vide order dated 16.1.1978, he was discharged from the service. The petitioner claims that he is entitled for pension but the pension was not given to him, hence the writ petition was filed by the petitioner with the following prayer:- “(i) Issue a writ, order, or direction in the nature of Mandamus directing the respondents to give the pensionery benefit like gratuity, pension etc. to pensioner forthwith highest interest. (ii) Issue a writ, order or direction as this Hon’ble Court may deem fit in the circumstances of the case. (iii) Award the cost of the writ petition to the petitioner.” 7. In counter affidavit, it has been stated in paragraph 4 that the petitioner took discharge from the service on his own request w.e.f. 15.1.1978 and he was recruited in this department on 21.6.1967 and at that time of discharge he had not completed 20 years of service and 3 as per CCS (Pension) Rules 1972 pension is applicable only after rendering 20 years of service. Relevant Rules relied upon by the respondents read as under:- “36. Retiring pension.—A retiring pension shall be granted,-- (a) to a Government servant who retires, or is retired, in advance of the age of compulsory retirement, in accordance with the provisions of [ ] Rule 48 [or 48-A] of these rules, or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations; and (b) to a Government servant who, on being declared surplus, opts for voluntary retirement in accordance with the provisions of Rule 59 of these rules. * * * * 48-A. Retirement on completion of 20 years’ qualifying service.—(1) At any time after a Government servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service : [Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is, -- (i) on assignments under the Indian Technical and Economic Cooperation (ITCE) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/Department, (iii) on a specific contract assignment as a foreign Government. 4 unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority ; Provided that where the appointing authority does not refuse to grant the permission fro retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. [(3) Deleted] ((3-A) (a) A Government servant referred to in sub- rule (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor. (b) On receipt of a request under Clause (a), the appointing authority subject to the provisions sub- rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the Government shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.] (4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, 5 shall be precluded from withdrawing his notice except with the specific approval of such authority : Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) The pension and [retirement gratuity] of the Government servant retiring under this rule shall be based on the emoluments as defined under Rules 33 and 34 and the increase not exceeding five years in his qualifying service shall not entitle to any notional fixation of pay for purpose of calculating pension and gratuity. (6) This rule shall not apply to a Government servant who,- (a) retires under Rule 29, or (b) retires from Government service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. 8. In view of the above, the petitioner was not entitled for pensionary benefit as is being claimed by him. The petition is therefore devoid of merit and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 5.1.2011 Rathour