^^Ss^ ,,.'-^113^" •^•^ ^' ? f.-^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) W.P.(S) No. ^ 3^ 2009 PETITIONER r Ramdeo Gupta, aged 57 years, S/o Late Shri M. L. Gupta, Assistant Grade II, District Sainik Welfare, near BSNL Tower, Raipur Naka, Durg (C.G.) VERSUS RESPONENTS :A. Govt. of Chhattisgarh, Through - Principal Secretary (Home), Police Department, D.K.S. Bhawan, Raipur (C.G.) 2. Director, Sainik Welfare Chhattisgarh, Behind Home Guards Collectorate Campus, Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF MANDAMUS OF WRIT/DIRECTION OR ANYOTHER APPROPRIATE WRIT. .^"'^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S} N0. 6975 of 2009 AFt^ PETITIONER RESPONDENTS Ramdeo Gupta Versus Govt. of Chhattisgarh & Another •^ Post for pronouncement ofjudgment & order on ...^.Uayof March, 2011. Sd/- Satish K.Agnihotri Judge !.:^?^ ,7^r""^ ii ^;%-£^,, 1 ^^m.^ | \^/ ^^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0. 6975 of 2009 PETITIONER RESPONDENTS Ramdeo Gupta Versus Govt. of Chhattisgarh & Another (Writ Petitionunder Article 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Sameer Kujur, Advocate for the petitioner. Shri Ajit Singh, Panel Lawyer for the State/respondents. (Delivered on .2^ day of March, 2011) 1. By this petition, the petitioner seeks a direction to the respondent authorities to pass an appropriate order pursuant to the communication dated 30.9.2008 (Annexure P-1) to count the entire army service i.e. from 30.8.1972 to 31.5.1983, as continuation in present service for the purpose of pension, gratuity etc. 2. The indisputable facts, in nutshell, as projected by the petitioner, for proper adjudication of the case, are that the petitioner entered into the army service on 30.8.1972 and continued in the said service till 31.5.1983. Thereafter, the petitioner joined in the District Sainik Welfare and presently workingon thepost ofAssistant Grade-11 at Durg. According to the petitioner, the petitioner is going to retire from his service on 31.5.2012. The petitioner on knowing that the services rendered in the army will be countedwith the present service, he moved a representation dated 7.11.2001 (Annexure P-2) before the respondent authorities and requested for counting his past services rendered in army with the present service. Again, the District Sainik Welfare Officer, Durg, by letter dated 4.11.2009 ^\ ^ 1 M^ (Annexure P-3) sent a reminder to the higher authorities, but till date the same has not yielded any result. Thus, this petition. Shri Kujur, learned counsel appearing for the petitioner, would submit that in view of Rule 18 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short "the Rules, 1976"), a government servant re-employed in a civil service or post, after rendering regular military service, may opt either to continue to draw the military pension or to cease to draw the military pension and count the previous military service as qualifying the service for the purpose of pension and gratuity. The petitioner is willing to abide by the terms and conditions under Rule 18 of the Rules, 1976 for counting the military service rendered as civil service. Shri Kujur, would further submit that earlier the claim of the petitioner has been rejected by the respondent authorities on the ground of delay; whereas the respondent authorities granted the similar benefit to one Mr. S. Gabriel,who preferred a representation after eight years of his re-employment. He would next submit that the petitioner is ready and willing to return back the gratuity and pensionary amount to the concerned military department, to avail second option as provided under Rule 18(1)(b) ofthe Rules, 1976. Learned counsel, in support of his contention, placed reliance upon the decision ofthis Court rendered in Dr. (Major) Thakur Ajit Singh v. Madhya Pradesh Electricity Board & Others , and would submit that several employees appointed in government W.P.No.1218/1995 decided on 20.03.2009 "\\ ^a 8. service after being relieved from military service have been granted continuity in service by the State Government. On the other hand, Shri Ajit Singh, learned Panel Lawyer appearing for the State, would submit that the provisions of the Rule, 1976 provides that the employee should have submitted his representation within a period of three months; whereas in the present case, the petitioner entered into the present service on 12.12.1988 and the application was moved on 7.11.2001 for counting his past service with the present service. The recommendation was made by the authorities concerned on 30.9.2008, illegally and unauthorisedly. Thus, the case of the petitioner suffers from inordinate delay and laches, therefore, the petitioner is not entitled to any relief and the petition deserves to be dismissed. Having heard learned counsel for the parties, there is no denial on the part of the petitioner to the fact averred by the State/respondents that the petitioner joined government service on 12.12.1988 and the application for opting clause (b) of sub- rule (1) of Rule 18 of the Rules, 1976 was exercised on 7.11.2001. Sub-rule (2) of Rule 18 of the Rules, 1976 clearty provides that the option has to be exercised within three months of the date of issue of such order. Clause (b) of sub-rule (2) of Rule 18 further provides that if no option is exercised within a period of 3 months as provided in clause (a) of sub-rule 2,it shall be deemed that the government service as opted for clause (a) of sub-rule (1 ) of Rule 18. In view of the abovestated unambiguous and clear legal provision, the Court cannot condone the delay against the ^ ^7 provisions of law. The petitioner, thereafter, has also approached this Court not immediately, but in the month of November, 2009. In such a case, the decision of the State Government cannot be faulted with, thus, reliance of Shri Kujur on Dr. (Major) Thakur Ajit Singh (supra) is misplaced, as the delay in exercise of option under the provisions of Rule 18 was not in question in the said case. 9. It is useful to refer relevant provisions of Rule 18 of Rutes, 1976: "18. 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 regular military service after attaining the age of eighteen years, may, on his appointment 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 service shall not count as qualifying service; or (b) to cease to draw his pension or, refund the gratuity including death-cum-retirement gratuity, if any, and account the 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 of India and the pension intermediately drawn shall not be required to be refunded but the element of pension which was not taken into account for fixation of pay on re-employment shall be refunded to the Defence Department of the Government of India. (2)(a) The authority issuing 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 the date of issue of such order, if he is on leave on that day, within three months of his return from ^ 10. leave, whichever js 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 of 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)1nthe case of a'Government servant who, having elected to refund the pension or gratuity, dies before the entire amount is refunded, the unrefundedamount of pension for gratuity shall be adjusted against the death-cum-retirement gratuity which may become payable to his family. (5) When an order is passed under this rule by the Government allowing previous regular 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 service, but theperiod of interruption shall not qualify for civil pension. Grant of benefit to one Mr. S. Gabriel after eight years of hisre- employment as alleged hy the petitioner cannot be held as a ground to issue a writ or direction to the State Government. Except self-same statement, there is no material to establish asto whether application for exercising option was made within a prescribed period of three months and the decision has taken a long time or the application was made beyond the period of three months. Even otherwise, it is a trite law that if an illegal order was made, thatcannot be a ground for grant of relief on the basis of equality under the provisions of Article 14 of the Constitution of India. <s ^ 11. In Uttaranchal Jal Sansthan v. Laxmi Devi & Others , the Supreme Court laid down legal position of law that "/Y /"s now well settled that Article 14 of the Constitution of India carries with it a positive effect. Equality clause cannot apply in a case where it arises out of illegality." 12. The petitioner has not done the needful and waited for a long period to come to this court after such a long unexplained, inordinate delay. Thus, this petition cannot be entertained and the same deserves to be dismissed on the ground of delay and laches also. 13. On perusal of the abovestated provisions dealingwith reckoning of service and continuity of service of the ex-military servant, the State/respodnents have rightly rejected the application of the petitioner, as the same was made after the prescribed period of three months. Thereafter, under the provisions of clause (b) of sub-rule (2) of Rule 18 of the Rules, 1976, it is deemed to have opted for clause (a) of sub-rule (1) of Rule 18 oftheRules, ,1976. 14. Applying well settled principle of law to the facts of the case, the petition deserves to be and is accordingly dismissed. 15. No order asto costs. Sd/- Satish K. Agnihotri Judge Ashok ' (2009)7 SCC 205