IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 11481 of 2008 Date of decision: 01.09.2011 ________________________________________________________________ Hakim Chand. .....Petitioner. Versus Chaudhary Sarwan Kumar Krishi Vishvavidyalay & another. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. G.R. Palsra, Advocate. For the respondents: Mr. Lokender Thakur, Advocate. V.K. Sharma, J. (Oral). Thought the petition has been filed on the following prayers vide para 7(i to v), yet at the time of hearing, the learned counsel for the petitioner states at the bar that the claim covered under prayer (iii) has since been settled by the respondent- University and as such the same does not survive: “7(i) That the respondents may be further directed to fix/refix and revise the pension of the applicant on the basis of the last pay drawn by him i.e. Rs. 9475/-, which comes to Rs. 2153/- P.M. w.e.f. 1-2-2003 and to pay the difference alongwith interest at the rate of 15% per annum from the due due till the actual date of payment thereof. (ii) That the respondents may be further directed to refix the other retiral benefits i.e. commuted value of pension, etc. and to pay the balance amount alongwith interest at the rate of 15% per annum from the date due till the actual date of payment thereof. 1 Whether reporters of Local Papers may be allowed to see the judgment? No. ...2... (iii) That the respondents may be further directed and ordered to release the amount of pay/salary for the un-utilized period of 273 days of earned leave alongwith interest at the rate of Rs. 15% per annum from the date due till the actual date of payment thereof. (iv) That the respondents may be further directed to permit the applicant to avail of the open medical reimbursement facility after his retirement from service as has been opted by him well within time, which facility he has been enjoying and allowed to avail of while in service under the respondents. (v) That the impugned orders of the respondents dated 28-1-2003, 22-11-2003 and 29-1-2004 may be quashed and set aside.” 2. In reply, the respondents have taken the following stand vide para 6(v) (vi) and 6(x)(d): “6(v). That the contents of this para are wrong and hence denied. The payment of leave encashment of unutilized leave of 273 days amounting to Rs. 1,33,643 has already been paid to the applicant by the University vide cheque No. 0772657 dated 31.3.04. The other retiral benefits have also been paid as per the rules. So far as medical allowance/reimbursement is concerned, being an ex- serviceman, same can not be made applicable till an undertaking and certificate from Military authorities is given to the effect that he is not receiving free medical facility from Military. In the absence of the required documents, the medical facility can not be extended to the concerned retiree and the case will be considered as and when these are submitted by the applicant as was requested to the applicant (Annexure A-5). The option for open medical allowance furnished by the applicant can be considered only after the above undertaking/certificate from the competent authority is received by the respondent. (vi) The position has been made clear under sub para iv & v of para 6 above. The legal notice was replied as per rules. The calculation sheet of pensionary benefits as vetted by the Audit is at Annexure R-II. Against the claim of the applicant of Rs. 2153/- p.m. for Average Basic Pay, the respondent university has alredy calculated Rs. 2225/- p.m. (Annexure R-II), which is Rs. 72/- higher as per the ...3... rules than what the applicant is claiming. But the applicant is concealing the basic fact that his pension has to be restricted after merging both the pensions i.e. Army and University. After adding Rs. 3401/-, which he is drawing from Army, the total pension comes to Rs. 5626/-, which has to be restricted to 50% of the average emoluments as drawn in the University. Since his average emoluments are Rs. 9475/-, therefore the pension comes to Rs. 4738/- which is the restricted limit from the university. Had he served the university for 33 years, then the university, under CCS Pension Rule 18 and 19 (Counting of military service), had to restrict the pension at Rs. 4738 further subject to the condition of capitalized value vide CCS Pension rule 18(3) of the CCS Pension rule. Under this capitalized value, the pension of Rs. 4738 has to be restricted to Rs. 4711 (Rs. 3401 from Army and Rs. 1310 from University). Thus, the only difference of Rs. 27 for which the applicant is agitating, is due to capitalized values under rule 18.3 and its calculation sheet as vetted by the Statutory Authorities is at Annexure R-II. 6(x)(d) That the pension case has been decided on the basis of capitalized value(s) and the pension has been restricted under Rules 18 & 19 of CCS Pension Rules and this rule has been uniformly applied by the University in all cases pertaining to military service including the applicant. The contents on the rules concerning state government cannot be commented for want of knowledge. However, the applicant while replying legal notice (Annexure A/3) was requested to get his doubts, if any clarified. But he did not avail this opportunity. The relevant part of the letter is read as: 'It is intimated that case has been correctly decided. However, if there is doubt anywhere, he is most welcome to seek any clarification direct from this office therefore serving of legal notice has not been appreciated.'” 3. In view of the above reply, in case the petitioner still has any surviving grievance with regard to the factual and legal position, he may certainly point out the same before the respondents/competent authority by way of detailed representation supported by documents, if any, alongwith copy of this judgment within a month from today, who shall consider the same and take a ...4... final decision in the matter within further three months in accordance with law, after affording an opportunity of being heard to the petitioner, if so desired. 4. The petition stands disposed of in the above terms, so also pending CMP(s), if any. Copy dasti. (V.K. Sharma) Judge 1st September, 2011 (virender)