IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 5183 of 2008(P) ------------------------- PETITIONER: ------------------ LT. COL.V.C. POULOSE, ARMY POSTAL SERVICE (RTD.), H.NO.1717D,VALAKKATTU JANATHA ROAD, SOUTH END, VYTTILA, COCHIN-682019. BY ADV. MR. C.S.GOPALAKRISHNAN NAIR RESPONDENTS: --------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI-110 001. 2. CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI. 3. ADDL. DIRECTOR GENERAL, ARMY POSTAL SERVICE, ARMY HEAD QUARTERS,NEW DELHI. 4. PRINCIPAL COMPTROLLER OF DEFENCE ACCOUNTS (PENSION), ALLAHABAD. 5. DIRECTOR GENERAL OF POSTS, SANCHAR BHAVAN, PARLIAMENT STREET, NEW DELHI-1. 6. DIRECTOR OF ACCOUNTS (POSTAL), APS ACCOUNTS, DEPARTMENTS OF POSTS, NAGPUR-400001. R1 TO R6 BY ABRAHAM THOMAS, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5183 of 2008(P) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DATED 10.06.1971 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF THE ORDER DATED 18.10.1979 ISSUED BY THE 1ST RESPONDENT. P3: COPY OF THE APPOINTMENT ORDER DATED 18.10.1979. P4: COPY OF THE EXTRACT FROM THE 'GAZETTE OF INDIA' PUBLISHED BY THE MINISTRY OF DEFENCE, NEW DELHI ON 26.02.1977. P5: COPY OF THE ORDER NO. 02592/01/31/APS/MS-16B DATED 05.05.1995 PROMOTING THE PETITIONER AS LT. COLONEL ISSUED BY THE 2ND RESPONDENT. P6: COPY OF THE SPECIAL ARMY INSTRUCTIONS NO.1/S/71 DATED 04.03.1971. P7: COPY OF THE ORDER NO.90007/APS 1A DATED 26.08.1996 ISSUED BY THE 3RD RESPONDENT. P8: COPY OF THE COMMUNICATION NO. 90051/APS 1A/R-63 DATED 20.05.1998 ISSUED BYTHE 2ND RESPONDENT. P9: COPY OF THE ABOVE LETTER NO. 90024/APS 1A DATED 11.06.1999. P10: COPY OF THE ORDER NO. 90024/APS-1A(I) DATED 07.10.1999 ISSUED BY THE 3RD RESPONDENT. P11: COPY OF THE ARMY INSTRUCTION 29 OF 1985. P12: COPY OF THE ARMY INSTRUCTION 107/1953. P13: COPY OF THE LETTER NO. 90029/TC-31291/APS 1A DATED 28.10.1999 ISSUED BY THE 3RD RESPONDENT. P14: COPY OF THE ORDER NO. 90024/APS/1-A DATED 10.04.2000 ISSUED BY THE 3RD RESPONDENT. P15: COPY OF THE MOVEMENT ORDER 30.04.2000. P16: COPY OF THE JUDGMENT IN C.W.P.NO.7369/2000 DATED 11.07.2000 OF THE HON'BLE HIGH COURT OF PUNJAB AND HARYNANA. P17: COPY OF THE ORDER C.M.NO.19122/2000 IN C.W.P.NO.7369/2000 DATED 02.03.2001 OF THE HON'BLE HIGH COURT OF PUNJAB AND HARYANA. P18: COPY OF THE INTERIM ORDER DATED 26.05.2003 IN C.W.P.NO.12467/2000. P19: COPY OF THE INTERIM ORDER DATED 16.12.2003 IN C.W.P.NO.12467/2000. P20: COPY OF THE PENSION PAYMENT ORDER NO. PEN I /TRF-4696/PO- 572/2000-2001/CII DATED 13.08.2003 ISSUED BY THE 6TH RESPONDENT. P21: COPY OF THE ORDER NO. 7350/PEN/GEL I/SSA IN 91/03-04 DATED 13.01.2004 ISSUED BY THE DEPUTY DIRECTOR OF POSTAL ACCOUNTS, KERALA CIRCLE, THIRUVANANTHAPURAM. P22: COPY OF THE LETTER DATED 2.01.2004 ISSUED BY THE SUB POST MASTER, VYTTILA, KOCHI-682 019. P23: COPY OF THE ORDER DATED 18.11.2005 ISSUED BY THE HON'BLE HIGH COURT OF PUNJAB AND HARYANA. P24: COPY OF THE LETTER DATED 07.08.2000 ADDRESSED TO THE ADDITIONAL DIRECTOR GENERAL, MANPOWER. P25: COPY OF THE LETTER NO. 13301/TC-31291/APS/MP-6(E)/419/DP/2004/AG PS 4 (IMP-II) DATED 30.06.2005. P26: COPY OF THE PPO NO.M/DIS/31/2006 DATED 03.03.2006. P27: COPY OF THE LETTER NO. B/40431/MISC/DP/2006/AG/PS-4/(IMP-II) DATED 21.04.2006 ADDRESSED TO THE 4TH RESPONDENT. P28: COPY OF THE CORRIGENDUM NO.13301/TC-31291/APS/MP-6(E)/ 092/CORRIGENDUM/2006/AG/PS4 (IMP-II) DATED 29.09.2006 ISSUED BY THE 4TH RESPONDENT. P29: COPY OF THE LETTER DATED 10.02.2006 SUBMITTED TO THE 2ND RESPONDENT. P30: COPY OF THE LETTER NO. 90029/TC-31291/APS-1 A DATED 03.03.2006 ISSUED BY THE 2ND RESPONDENT'S OFFICE. P31: COPY OF THE LETTER DATED 05.11.2000 SUBMITTED TO THE 5TH RESPONDENT. P32: COPY OF THE LETTER NO. GPF/IV/BASE/TC.31291 DATED 13.11.2000 ISSUED BY THE 5TH RESPONDENT. P33: COPY OF THE REPRESENTATION DATED 07.05.2007 ADDRESSED TO THE 4TH RESPONDENT. P34: COPY OF THE LETTER DATED 23.07.2007 ADDRESSED TO T HE OFFICER- IN-CHARGE OF DEFENCE PENSION LIAISON CELL, ALLAHABAD. P35: COPY OF THE LETTER NO.10054/FP/G/135/DPLC DATED 17.08.2007 ISSUED BY THE OFFICER-IN-CHARGE OF DEFENCE PENSION LIAISON CELL, ALLAHABAD. P36: COPY OF THE LETTER DATED 06.09.2007 TO THE OFFICER-IN-CHARGE DEFENCE PENSION LIAISON CELL, ALLAHABAD. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // P.A. TO JUDGE kkms/ V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 5183 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 29th day of September 2009. JUDGMENT Petitioner entered service as a Time Scale Clerk in the Kerala Postal Circle under the Department of Posts on 14.02.1963. He volunteered for field service in the Army and he was selected and enrolled as Warrant Officer by the Army Branch Recruiting Office, Ernakulam. By Ext.P1, he was regularly appointed as a Warrant Officer. He was then appointed as a Junior Commissioned Officer (JCO) in the rank of a Naik-Subedar. 2. Responding to notification inviting applications from serving Junior Commissioned Officers for appointment as Commissioned Officers, petitioner applied. He was selected and appointed as a Commissioned Officer in the rank of a 2nd Lieutenant. He was then promoted to the post of Captain, Major and finally as Lieutenant Colonel as evidenced by Ext.P5. 3. The Army Postal Service (APS) was constituted as per Army Instructions No.1/S/71 dated 04.03.1971. The petitioner W.P.(C). No. 5183 OF 2008 2 became an Army Postal Service Personnel. It was while so, he was appointed as a Commissioned Officer, he continued in the Army for 34 years and he retired as a Lieutenant Colonel. 4. He applied for army pension on the strength of his 34 years of service. It seems that he was only granted disability pension. He has been directed to approach the parent department, namely, the Postal Department for pension there from. He had earlier, while in service as a Lieutenant Colonel approached the Punjab and Haryana High Court inter alia aggrieved by the direction to report to his parent department namely, the Postal Department. By Ext.P16 judgment, a Bench of the Punjab and Haryana High Court declared that he must be deemed to retire in the rank of a Lieutenant Colonel from his position with effect from 30.04.2000. Reading of Ext.P16 order shows that the same was practically passed on consent. The Court directed that the petitioner shall get the retirement benefits as admissible under the rules. It was further observed that so far as the Army is concerned, he would retire with effect from 30.04.2000. The petitioner is now claiming army pension W.P.(C). No. 5183 OF 2008 3 on the strength of retirement as a Lieutenant Colonel with effect from 30.04.2000. 5. There is no counter by the respondents. There is a statement filed by the Counsel which refers to Army Instruction No. 29/1985 and Para 6, which says that APS Officers shall be governed by civil rules of service pension from the Department of Posts. The Army Instruction No.29/1985 is produced along with the petition as Ext.P11. Para 12 thereof reads as follows:- “ 12. OPTION:- All officers of the department of Posts at present serving in the APS will be allowed to opt for the terms and conditions contained in Annexure 'A' to this Army Instruction from the date of its issue provided that they satisfy the conditions laid down therein. On exercising such option, they will be regarded as newly commissioned for purposes of the option to draw civil or military rates of pay under para 3(b) of Annexure A. The existing orders will continue to apply to other serving officers.” 6. It is contended that the petitioner had not opted to the Department of Posts and therefore, the orders regarding pension which was then existing will continue to apply to him. 7. I find force in the submission. I also take note of the fact that though the petitioner had joined the Department of W.P.(C). No. 5183 OF 2008 4 Posts and had thereafter been appointed as a Warrant Officer, subsequently he was appointed as a Commissioned Officer in the Army after a selection from among the Junior Commissioned Officers. He was then promoted as Captain, Major and finally as Lieutenant Colonel and Ext.P16 judgment of the Punjab and Haryana High Court judgment the petitioner was declared to have retired as Lieutenant Colonel on 30.04.2000. Petitioners initial entry as a Warrant Officer was with effect from 21.09.1965. 8. Apart from the applicability of Exts.P11 and P12 what is also significant is the fact that appointment of the petitioner as a Commissioned Officer was pursuant to a selection by the Service Selection Board and he was therefore recruited in the rank of a Second Lieutenant. He had continued till the year 2000. To now require the petitioner to receive pension as a civilian from the Department of Posts is clearly not justified or warranted. 9. In the result, the 4th respondent shall, within three months from the date of receipt of a copy of this judgment, compute the pension and other benefits due to the petitioner by W.P.(C). No. 5183 OF 2008 5 treating him as having retired from the Army as a Lieutenant Colonel with effect from 30.04.2000, in terms of Ext.P16 judgment of the Punjab and Haryana High Court. The pensionary benefits due to the petitioner shall be accordingly disbursed within three months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. (V.GIRI) JUDGE kkms/