IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP-T No. 3064 of 2008 Date of decision: 25.8.2010 Tulsi Ram … Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Tarlok Chauhan, Advocate. For the respondents No. 1 to 4: Mr. Vivek Singh, Addl. Adv. General. For the respondent No.5: Mr. Varun Chandel vice Mr. K.B.Khajuria, Central Govt. Counsel. Deepak Gupta, J. (Oral) 1. The main relief claimed by the petitioner is that his past military service should be taken into consideration and his salary on re-employment to civil service should have been fixed in terms of Rule 19 (1) (b) of the CCS (Pension) Rules and consequently his pensionary benefits be determined in terms of sub rule 2 of Rule 19. 2. The undisputed facts of the case are that the petitioner joined the Indian Army in the year 1963 and was discharged therefrom in the year 1970. He joined service under the respondents-State as a Pharmacist 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 on 23rd September, 1972 and retired from service on 30th November, 2000. While determining his pension the military service rendered by him from 1963 to 1970 was not taken into consideration. The applicant filed various representations requesting the respondents to take into consideration his military service for determining his pension. However, his prayer was not accepted which led to the filing of the petition. 3. The stand of the respondents is that the petitioner did not exercise option in terms of Rule 19 of the CCS (Pension) Rules and therefore, he was permitted to continue to draw military pension and has in fact drawn the same. 4. Relevant portion of Rule 19 of the CCS (Pension) Rules read as follows:- “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 3 (b) to cease to draw his pension and refund – (i)…. (ii) the value received for the commutation of 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 : xxx.. xxx… xxx…. (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).” 5. It is contended by Shri Tarlok Chauhan, learned counsel for the petitioner that in terms of sub-rule 4 (2)(a) of Rule 19 when the order was issued offering substantive appointment to the civil post the respondents were required to ask for the option of the petitioner in writing. Admittedly, no such option was sought and therefore, the petitioner even at this stage can exercise such option. The CCS (Pension) Rules came into force on 1st March, 1972 and the petitioner was offered appointment on 23rd September, 1972. In terms of Rule 19(a) it was incumbent upon the respondents to have asked for the option of the petitioner in writing. This has admittedly not been done since even in the supplementary affidavit filed on behalf of the Director, Health Services, it is clearly stated that no such option was called for. 6. The petitioner has not only deposited the amount of pension which he has received but has also deposited interest thereupon. It is not disputed that the full amount alongwith interest has been deposited. Therefore, there is no reason why the petitioner should be denied the benefit of counting the military service rendered by him for the purpose of working out his pension. 7. In view of the above discussion, the writ petition is allowed. The respondents are directed to rework the pension and other retiral benefits of the petitioner by 5 giving him benefits of his past military service. The entire arrears payable on this account shall be worked out and paid to the petitioner alongwith interest @ 6% per annum w.e.f. 21.11.2005 i.e. the date of filing of the petition before the Administrative Tribunal till date of payment of amount. The amount be paid on or before 28th February, 2011 failing which the petitioner shall be entitled to interest @ 12 % per annum. The petition is disposed of in the aforesaid terms. No order as to costs. 25th August, 2010 ( Deepak Gupta ) ™ Judge.