~T' fl sr^— IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION .o_ N07"'7 OF 2009 L^ PETITIONER Dr. (Major) ThakurAjit Singh, M. S. (Orthopedics), son of Shri Thakur Yashwant Singh aged about 52 years, Medical Officer, Chhattisgarh State Power Holding Co .Ltd., Dispensary, Tifra, Bilaspur Dist. Bilaspur (Chhattisgarh) VERSUS NON-APPLICANTS RESPONDENTS ^i^-" 1. Madhya Pradesh Electricity Board through its Chairman/ Secretary, Shakti Bhawan, Jabalpur (Madhya Pradesh) 2. Additional Secretary, Madhya Pradesh Electricity Board, Shakti Bhawan, Jabalpur (MP) ^" ^' ^^'' % ^iS^ ^ — ^ r^.<% |R/K^shiI< |-/s ^' ^ ^ Chhattisgarh State Power Holding Co. Ltd., through its Managing Director, Dangania, Raipur (Successor Company Of Chhattisgarh State Electricity Board). Executive Director (HR), Chhattisgarh State Power Holding Co. Ltd., Dangania, Raipur (Successor Company of Chhattisgarh State Electricity Board). 5. General Manager (HR), Chhattisgarh State Power Holding Co. Ltd., Dangania, Raipur (Successor Company of Chhattisgarh State Electricity Board). ^•" 6. State of Chhattisgarh Through the Secretary, General Administration Department, Mantralaya, D.K.S. Bhawan, Raipur (CG) v 4 A_ 7. Union of India, through the Defense Secretary, Ministry Of Defense, Government of India, New Delhi WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS, AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: 1 AP^ HIGH COURT OF CHHATTISGARH : BLLASPUR WRIT PETITIO'N (S) N0.5070^F2009 PETITIONER Dr. (Major)ThakurAjitSingh Versus ^ RESPONDENTS Madhya Pradesh Electricity Board & Others. (Writ Petition under Article 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Rajeev Shrivastava, Advocate for the petitioner. Shri Pramod Verma, Sr. Advocate with Shri Raghvendra Verma, Advocate for the respondent No. 3, 4 & 5. Shri A.V. Shridhar, Panel Lawyer for the State. Shri K.R. Nair, Advocate forthe intervener. ORDER (ORAU (Passed on this 14th day ofJuly, 2010) 1. Challenge in this petition is to the order dated 25/06/2009, passed by the respondent No.4, wherein the period spent in military services by the petitioner was not counted for grant of annual grade increment and seniority on the post. 2. The indisputable facts in nutsheil is thatthe petitionerjoinedShort Service Commission in the military service and on being relieved from Short Service Commission on 1/8/1989, he was re-employed in M.P.E.B. as ex-military personnel. The period spent in military services was not counted for the purpose of pension and gratuity. Thus, the petitioner filed a writ petition, being W.P. No. 1218/95 praying that: (i) The Hon'ble Court be pleased to quash the order dated 16-3-1993 (Annexure A/12) and dated 29-9-1993 (Annexure A/14). (ii) The Hon'ble Court be pleased to issue the writ in the nature of mandamus and direct the respondent to give relief to the petitioner in respect of advance increments and in his pay fixation equal to the number of completed years of service in armed forces and counting of this period for pension purposes in accordance with the Government circulars Annexure ~ A/6 and Annexure A/7. This Court after hearing all the parties disposed of the matter on 20/3/2009 (Annexure P-26) observing that after the petitioner .>/ 3. 5. refund a sum of Rs. 25,750/- as gratuity granted by the office of the Controller Defence Account to the respondent CSEB, the ^^ petitionerwoutd thereafter become entitled for counting of service rendered in the Army for fixation of pension and gratuity. The respondents accordingly passed the order on 25/6/2009 (Annexure P-1) counting the period of 5 years service w.e.f. 1/8/1984 to 31/7/1989 as qualifying service for the purpose of "Pension & Gratuity" only. The petitioner was denied 5 years of service spent in Army Medical Corps for the purpose of grant of annual grade increment and seniority in the post.-Thus, this petition. Shri Rajeev Shrivastava, learned counsel appearing for the petitioner submits that it is indisputable that the M.P. Civil Services (Pension) Rules, 1976 (for short "the Rules, 1976) has been adapted by the respondent Board. Rule 18 of the Rules, 1976 provides for counting of military service rendered before civil employment for grant of seniority and annual increments. Denial of counting of military service for grant of annual grade increment and seniority is violative of provisions of Rule 18 of Rules, 1976. Learned counsel relies on a decision of the High Court of M.P. rendered by learned Single Judge in Sudhir Jaisani Vs. State of M.P. and others 1. Shri Shrivastava further submits that several Doctors appointed in Government service after being relieved from military service, have been granted continuity in service by the State Government. On the other hand, Shri Pramod Verma, Sr. Advocate with Shri Raghvendra Verma appearing for the respondents and Shri Nair learned counsel appearing for the intervener would submit that Rule 18 of Rules, 1976, does not contemplate counting of military service rendered before civil employment for the purpose of grant of annual increments and seniority on the post. The time spent in military service is counted only for the purpose of grant of pension and gratuity. There is no provision, which prescribes for counting of military service before entering into civil employment for the ' (2005)2MPu 162 purpose of grant of annual increment and continuity in service. No ex-military personnel employed in the Board after rendering military service has been granted benefit as there is no provision in the Rules, Acts, Notifications or Instructions issued by the Board from time to time. Only the war service rendered in World War-11 is counted for the purpose of continuity in service as provided under Rule, 19 of Rules, 1976. 6. Having heard learned counsel appearing for the parties, perused pleadings and documents appended thereto, it is crystal clear that the provisions of Rule 18 of the Rutes, 1976 is applicable only for the purpose of pension and gratuity not for any other purpose i.e. grant of annual increment or continuity in service rendered in military before employed. Rule 18 of Rules 1976 is reads as under: "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 Consotidated 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 ^ ^ 7. day, within three months of his return from leave, whichever is later and also bring to his notice the provisions of clause (b)". Note- The case of persons who were in pensionable civil service on 7-7-69 and applied for counting of their Army Service for purpose of civil pension before 7-10-69 may also be considered underthis rule. (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- rute(1). (3)(a) A Government servant who opts for clause (b) of sub-rule (1) shalt be required to refund the pension 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 fottowing the month in which he exercised the option. (b) The right to count previous sen/ice as qualifying service shall not revive until thewhole amount has been refunded. (4) In the case of a Government servant who, having elected to refund the pension or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension for gratuity shall be adjusted against the death-cum-retirement gratuity which may become payabl.e to his family. (5) When an order is passed under this rute 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 civit service, but the period of interruption shall not quatify for civil pension. On bare reading of rules, it appears that sub rute 1 (a) & (b) clearty provides that the benefit of counting of military service Would available only to those persons who had rendered regular military service, after attaining the ageof 18 years, may, on his appointment in a civil service or post, can opt either to continue to draw the military pension or retain gratuity received on discharge from military service, in which case his formal military service shall not counted as quatifying service for the purpose of pension and gratuity. In second option, if the ex-military man cease to draw the pension or, refund the gratuity including the death-cum-retirement gratuity. The previous military service would be counted as quatifying service for the purpose of pension and gratuity. ^J ^^ v >: 9. 10. 11. ashok Reading of sub-rule 3, 4 &5 of Rule 18 of the Rules, 1976 together, further make it clear that the previous regular military service rendered is counted only as part of service quatifying for civil pension not more than that. Reliance of Shri Shrivastava, counsel for the petitioner upon the decision ofthe High Court of Madhya Pradesh rendered in Sudhir Jaisani (supra), where it has been held that under sub rule 1(b) of rule 18 service rendered in Army shall be counted for the purpose of fixation of pay allowance and seniority is concemed. 1 respectfully disagree with the conclusion. Thus, the impugned letter dated 25/6/2009 is just and proper and the petitioner is not entitled to grant of annuat grade increment and seniority in the post on counting service spent in military services under the provisions of law. The Supreme Court In Ram Jaman Singh Vs. State of U.P. and another obsen/ed that seniority of an officer in service is determined in reference to the date of his entry :n the service. However, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but the same should not face the test of Article 14 & 16 of the Constitution of India and the same should be strictly by statutory rule or rules framed underArticle 309 ofthe Constitution of India. In the case on hand, no rule (s) has been shown, which provides for grant of annual increment and seniority, counting service spent in mititary services, as qualifying service. For the reasons mentioned hereinabove, the petition has no merit and is dismissed. No order asto costs. Sd/- SatishK.Agnihotri Judge (1994) 2 SCC 622