IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.167 of 2003 alongwith CWP No.332 of 2003: Judgment reserved on: 16.7.2008 Date of decision: 24th, July, 2008. CWP No.167 of 2003: Inder Mohan Lal Sharma …..Petitioner Versus State of H.P. and others …..Respondents CWP No.332 of 2003: State of H.P. & another ..Petitioners Versus Inder Mohan Lal Sharma and others ..Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting?1 No For the petitioners.: Mr. K.D. Sood and Mr.B.N. Gupta, Advocates for the petitioner in CWP No.167 of 2003 & Sh.R.M.Bisht, Deputy Advocate General for the petitioners in CWP No.167 of 2003. For the Respondents: Mr.R.M.Bisht, Dy.A.G. for respondents 1&2 in CWP No.167 of 2003. M/s.K.D.Sood & B.N. Gupta, Advocates for Respondent No.1 in CWP No.332 of 2003. Sh.Sandeep Sharma, Assistant Solicitor General for respondent No.3 in CWP No.167 of 2003 and for respondent No.2 in CWP No.332 of 2003. Sh.Subhash Sharma, counsel for respondent No.4 in CWP No.167 of 2003 and for respondent No.3 in CWP No.332 of 2003. Deepak Gupta, J. The aforesaid two petitions are being disposed of by a common judgment since they arise out the same order of the learned H.P. State Administrative 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 Tribunal (hereinafter referred to as the Tribunal) dated 15.7.2002 passed in O.A/TA No.(D)84 of 1998. Briefly stated the facts of the case are that Sh.Inder Mohan Lal Sharma (hereinafter referred to as the petitioner) joined the Department of Food and Civil Supplies as Inspector in the year 1957. He received various promotions and in the year 1983 he was promoted as Deputy Director, Food and Civil Supplies. The State created an autonomous body known as the H.P. Civil Supplies Corporation ( hereinafter referred to as the Corporation). The petitioner was sent on deputation to the Corporation in the year 1984. He was absorbed in the Corporation on 20.5.1987 w.e.f the same date. The petitioner retired from service on attaining the age of superannuation on 30.4.1988. He requested for grant of pro-rata monthly pension instead of lump sum pension. On the retirement of the petitioner his entire pension was commuted and he was given full commuted pension. The case of the petitioner is that vide the decision of the Government of India dated 31st January, 1986 he had not exercised any option and therefore entitled to pro-rata monthly pension and retirement gratuity. The relevant portion of the said notification reads as follows: “Pensionary benefits: 3 (i)Resignation from Government service with a view to secure employment in a Central Public enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/ terminal benefits as admissible under the relevant rules applicable to him in his parent organization. (ii)The officer eligible for pension should exercise an option within six months of the date of his resignation for either of the following two alternatives: a)Pro rata monthly pension and retirement gratuity as admissible under the relevant rules. b)Pro rata gratuity and a lump sum amount in lieu of pension worked out with reference to the commutation tables applicable on the date of resignation. NOTE:-Where no option is exercised within the prescribed time limit, the officer will be governed by alternative (a) above. Option once exercised shall be treated as final.” The case of the petitioner is that since he did not exercise any option he was covered by sub-clause (a) of Clause (ii) as quoted hereinabove. The petitioners made various representations in this behalf which were rejected. Since the petitioner was granted lump sum pension and pro rata pension was not granted to him he filed the aforesaid O.A. The learned Tribunal came to the conclusion that the petitioner was not entitled to pro rata pension as he has opted for lump sum pension. It 4 however held that in view of the later decision of the Government, after completion of 15 years of retirement the plaintiff was entitled to 1/3rd pension. Aggrieved by this order of the learned Tribunal both the sides have filed the present petitions. In the present case, in our opinion, the aforesaid instructions will not apply. In the letter giving the option for absorption to the petitioner the condition with regard to pension is stated as follows: “(v)Option: The officer will be exercise an option, within six months of the date of issue of this order, for either of the alternatives indicated below:- (a)receiving the pro-rata monthly pension and Death-cum-retirement gratuity as admissible under clauses (ii), (iii) and (iv) above under the State Government Rules. Or (b)Receiving the pro rata Gratuity and a lump sum amount in lieu of pension worked out with reference to the commutation tables obtaining on the date from which pension will be admissible and the commuted value becomes payable. Where no option is exercised within the prescribed period the officer will automatically be governed by alternative (b) above, option once exercised shall be final. The option shall be exercised in writing.” A perusal of the aforesaid clearly indicates that an option has been given to the employee to either receive pro rata pension or a lump sum in lieu of pension. It has further been held that in case an option is not 5 exercised the Officer will be governed by alternative (b). Therefore, even if the petitioner had not exercised his option he would have been governed by sub-clause (b) of the aforesaid letter and not by the instructions of the Government of India. However, in the present case we find that in fact the petitioner had exercised an option specifically opting to receive lump sum pension. Reference may be made to the letter dated 5.5.1988 wherein the petitioner had given the following option: “2.I may submit here that I wish to receive lump sum amount of pension worked out with reference to the commutation table under alternate (b) as per the terms and conditions of pro-rata retirement benefits contained in Absorption orders dated 20.5.1987. The letter No.1883-86, dated 29.4.1988 may therefore be treated as cancelled.” Once the petitioner had opted to receive lump sum pension he cannot claim pro rata pension. We may however note that the Apex Court in Welfare Association of Absorbed Central Government Employees in Public Enterprises and others vs. Union of India and another, AIR 1996 SC 1201, has clearly held that even those employees who had opted for lump sum pension are entitled to restoration of 1/3rd pension after the expiry of 15 years of retirement. Consequently we find no error in the order of the learned Tribunal. However, it is made clear that the 6 direction to restore 1/3rd pension shall apply after 15 years of the retirement in accordance with the Rules. Both the petitions are disposed of in the aforesaid terms. No order as to costs. ( Deepak Gupta ), J. July 24, 2008 ( V. K. Ahuja ), J. PV