IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 9584 of 2008. Reserved on: 23.02.2011. Decided on: 24.03.2011. __________________________________________________________ Gulzar Singh Parmar. … Petitioner. Versus State of Himachal Pradesh & others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Ms. Ranjana Parmar, Advocate. For the Respondents : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. Rajiv Sharma, Judge: Petitioner joined the Indian Army on 20.12.1964. He was discharged on 8.3.1973. He joined the respondent-department on 23.10.1973. He made a representation for counting his military service with civil service on 11.2.2003. The representation was rejected 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - on 21.4.2003. The petitioner has superannuated on 30.4.2003. 2. Ms. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that the respondents should have granted pension to the petitioner by counting the military service and civil service as per Rule 19 of the Central Civil Services (Pension) Rules, 1972. She further contended that the respondents have not sought petitioner’s option as per Rule 19 and the instructions issued by the Government of India on 26.2.1988 as well as on the basis of instructions issued by the Finance Department on 22.8.1994 to opt for combining the military service and civil service. She further contended that the representation made by the petitioner has been rejected without a speaking order. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that since the petitioner has not opted within the stipulated period, his case for combining the military and civil service could not be considered. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The petitioner has joined the respondent- department on 23.10.1973. He has been given the benefit of pay fixation and seniority as per provisions of - 3 - the Demobilised Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972. He was confirmed as Inspector Grade-II on 11.7.1991 with effect from 1.10.1988. 6. The case of the petitioner has been rejected only on the ground that he has not given option. It was necessary for the respondent-department to inform the petitioner in writing to give his option as per sub-rule (2) of Rule 19 at the time of confirmation. He was confirmed on 11.7.1991 with effect from 1.10.1988. The petitioner has also not been given any opportunity on the basis of instructions issued by the Finance Department on 22.8.1994. It is not the case of the respondent-department that these instructions were ever brought to the notice of the petitioner. Petitioner was also made to deposit the gratuity received from Indian Army. He has also paid interest on the same vide Annexures A-4 and A-5. 7. It will be apt at this stage to take note of Rule 19 of the Central Civil Services (Pension) Rules, 1972, which reads thus:- “19. 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, - 4 - had rendered military service may on his confirmation 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 services shall not count as qualifying service; or (b) to cease to draw his pension and refund– (i) the pension already drawn, and (ii) the value received for the commutation or a part of military pension, and (iii) the amount of [retirement gratuity] including service gratuity, if any, and count 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: Provided that – (i) the pension drawn prior to the date of re-employment shall not be required to be refunded, (ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on re-employment shall be refunded by him. (iii) the element of pension equivalent of gratuity including the element of - 5 - commuted part of pension, if any, which was taken into account for fixation of pay shall be set off against the amount of [retirement gratuity] and the commuted value of pension and the balance, if any, shall be refunded by him. EXPLANATION.– In this clause, the expression ‘which was taken into account’ means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial re-employment, and the expression ‘which was not taken into account’ shall be construed accordingly. (2) (a) The authority issuing the 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 date of issue of such order, if he is on leave on that day, within three months of his return from leave, whichever is 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, bonus or gratuity received in respect of his earlier military service, in monthly - 6 - 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) In the case of a Government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the [death gratuity] which may become payable to his family. (5) When an order is passed under this rule allowing previous 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 services.” 8. According to the instructions issued on 26.2.1988, in order to facilitate compliance with the requirement of exercising option in time, it has been decided that the Administrative Authority concerned should incorporate in writing in the order of re- employment itself a clause to the effect that if the re- employed Ex-Serviceman desires to take advantage of the retirement benefits based on combined military and civil services, he should exercise option within a period of one year from the date of his re-employment. The State Government has also issued instructions on - 7 - 22.8.1994 to enable an ex-serviceman to take advantage of the retirement/ pensionary benefits based on the combined military and civil service, for which the option was to be exercised within a period of six months. 9. What emerges from the plain reading of Rule 19 and the decision taken on 26.2.1988, is that the re- employed Government servant can opt to continue to draw military pension or he can get the previous military service counted as qualifying service. However, he will cease to get pension already drawn and the value received for the commutation or a part of military pension and the amount of retirement gratuity including service gratuity. 10. According to sub-rule (2)(a) of Rule 19, the authority while issuing order of substantive appointment to a civil service or post shall alongwith such order require in writing him to exercise the option within three months of the issuance of such order. 11. In the instant case, the petitioner has been confirmed vide letter dated 11.7.1991 with effect from 1.10.1988. Respondents have not placed any material on record to establish that alongwith letter dated 11.7.1991 the petitioner was called upon to exercise his option. The petitioner has also not been given the opportunity by bringing to his notice the notification - 8 - dated 22.8.1994 issued by the State Government whereby he could also give his option within a period of six months. These provisions are benevolent and are required to be considered liberally. The objective of these Rules is to facilitate an ex-serviceman to combine Military and civil service for the purpose of pension. The petitioner has made a representation before his retirement on 11.2.2003 to get the benefit of approved military service towards pensionary benefits under Rule 19. Same was rejected on 21.4.2003 vide Annexure A-7 without a speaking order. Once the representation has been made by the petitioner, it should have been considered in accordance with law. 12. What emerges from the observations and discussion made hereinabove, is that the respondent- department has not brought to the notice of the petitioner at the time of his confirmation in writing that he could opt for combining military service and civil service, as per sub-rule (2) of Rule 19 to get the pension. 13. Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed. Annexure A-7, dated 21.4.2003 is quashed and set aside. Respondents are directed to pay and release the petitioner the pensionary/retiral benefits by combining his military and civil service, within a period of two - 9 - months after the production of certified copy of this judgment. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. March 24, 2011. (sck).