IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1194 of 2008 ------ 1. The Union of India through the Secretary, Department of Posts, New Delhi. 2. The Chief Post Master General, Department of Post, Bihar Circle, Patna. 3. The Director, Postal Services, Bihar Circle, Patna. …. Petitioners… Respondents Versus Suresh Prasad Sharma, Ex-Sorting Assistant, O/O Superintendent, HRO RMS ‘P’ Division, son of Shri Rajendra Prasad, Mohalla Urja Nagar, Danapur Khagaul Road, P.O. Danapur Cantt.Patna. Applicant … Respondent. ----------- For the petitioners : Mr.Sarvadeo Singh, Central Government Advocate For the respondents : Mr. Sanjeev Ranjan, Advocate ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------- Dated, the 14th November, 2008. We heard counsel for the petitioner. 2. Rule 19 of Central Civil Services (Pension) Rules, 1972 reads thus: “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 after attaining the age of eighteen years, may, on his confirmation in a civil service or post, opt - 2 - 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 (b) to cease to draw his pension and refund- (i) the pension already drawn, and (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: Provided that (i) the pension drawn prior to the date of re-employment shall not be required to be refunded, (ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on re- employment shall refunded by him. (iii) the element of pension equivalent of gratuity including the element of commuted part of pension, if any, which was taken into account for fixation of pay shall be set off against the amount of [retirement gratuity] and the commuted value of pension and the balance, if any, shall be refunded by him. Explanation.____ In this clause, the expression `which was taken into account’ means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial re- employment, and the expression `which was not taken into account’ shall be construed accordingly. (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 - 3 - 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) (3) (a) A Government servant, who opts for Clause (b) of sub-rule (1) shall be required to refund the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, the first instalment beginning from the month following the month in which he exercised the option. (b) The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. (4) In the case of a Government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the [death gratuity] which may become payable to his family. (5) When an order is passed under this rule allowing previous military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the military and civil services. (2) Pensionary benefits received for the past service should be refunded with interest from the date of their receipt to the date of refund at the rate applicable on GPF accumulation from time to time. (3) Counting of service in the case of civilians working in lieu of combatants.—It has been decided that the service rendered by the civilians working in lieu of combatants in the three Service Headquarters and other Defence Establishments will count for pension when followed by other pensionable civil service, in the same manner as extra- temporary establishment/casual service, subject to the normal conditions for counting casual service when followed by pensionable civil service being fulfilled. - 4 - (4) Counting of service in the case of Ex-DSC personnel.—It has been decided that Ex-Defence Security Corps personnel on their re-employment in any civil post will be permitted to count in full of the former service rendered by them in the Defence Security Corps for the purpose of pension and gratuity. (5) Counting of non-regular/purely temporary military service for civil pension.—Continuous military (non- regular/purely temporary) service not rendered in conjunction with war service in the Army, the Navy and the Air Force will count in full towards civil pension if such service is followed without interruptions by appointment to and eventual confirmation in a pensionable post in civil service. The grant of this concession is subject to the following conditions:- (1) The officer concerned should not have earned a pension under the military rules in respect of the service in question. (2) In the case of services or posts in respect of which a minimum age is fixed for recruitment, no military service rendered below that age shall be allowed to count for pension. (3) If the officer has been granted any retirement gratuity in respect of such service, such gratuity shall be refundable. (6) Counting of Enlisted/Commissioned Military Service shown as non-pensionable/war-time engagement for the purpose of civil pensions.—A question has arisen as to whether the Enlisted/Commissioned Military service which is shown as non-pensionable by the Defence Authorities in the Certificate of Verification of Military Service, should count towards civil pension in the case of persons who are permanently appointed to civil posts. The position is that, in the Defence Services there are no non-pensionable establishments and the service officers/personnel are either on regular or non-regular terms. Those who are on regular terms are entitled to pension/gratuity after rendering the prescribed periods of service and others who are not on regular terms are entitled to gratuity as admissible under the rules/orders in accordance with which they are engaged. Non-regular Military service when followed by service on regular terms counts for Military pension. In the circumstances, the service which is shown as non-pensionable/war-time engagement is in fact non-regular (purely temporary) military service and will be allowed to count towards civil - 5 - pension. (7) No limitation on civil pension for re-employed military pensioners drawing separate military pension.— The Government employees who got re-employment after rendering civil service are governed by the provisions of Rule 18 and those who got re-employment in civil service after rendering military service are governed by Rule 19 of CCS (Pension) Rules, 1972. Rule 18(3) provides for limitation of pensionary benefits in the second spell of civil service. Rule 19 has no such provision for limitation. However, in the case of military pensioners re-employed in civil service, Rule 18(3) of CCS (Pension) Rules, 1972 was made applicable vide DP & AR’s O.M. No. 38/5/81 –PU, Dated 5-3-1982. 2. The matter has been re-considered in consultation with Ministry of Finance and it has been decided that Rules 18 and 19 shall apply respectively to the civil and military re- employed pensioners. In other words, in the case of re- employment of a military pensioner in civil service, the pensionary benefits for second spell of service shall not be subject to any limitation as per provisions of Rule 18(3) of CCS (Pension) Rules, 1972. 3. The cases of re-employed military pensioners who opted for separate military and civil pension and whose cases were earlier decided otherwise, may be re-opened and pensionary benefits for civil service may be re-fixed without limitation as provided in preceding para. 4. All Ministries/Departments are requested to bring provisions of this OM to the notice of all Attached/Subordinate Offices and Autonomous Bodies under administrative control of the concerned Ministries/Departments.” 3. The counsel for the petitioners does not dispute that the original applicant (respondent) did not receive any military pension. He also does not dispute that no gratuity was received by the original applicant. 4. If that be so, under rule 19, the claim of the original applicant (respondent) for counting of military service rendered before the civil employment cannot be said to have been wrongly accepted - 6 - by the Tribunal. 5. We find ourselves in agreement with the view of the Tribunal. 6. Writ petition has no merit. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil