CIVIL WRIT JURISDICTION CASE No. 7222 OF 2003 ---------- In the matter of an application under Articles 226 & 227 of the Constitution of India. -------- Prakash Chandra Kakkar, son of Late Uma Shankar Kakkar, resident of Village-Sukhrouli, P.O. Barauli, District Bhojpur, presently residing at Madhuban Colony, Rukunpura, P.O. B.V.College, Bailey Road, Patna -------------------- Petitioner Versus 1. The Union of India through the Controller General of Defence Accounts, West Block, V.R.K. Puram, New Delhi-110066 2. The Controller General of Defence Accounts, West Block, V.R.K. Puram, New Delhi 3. The Principal Controller of Defence Accounts, (Pension) Draupadi Ghat, Allahabad (U.P.) 4. The Controller of Defence Accounts, Patna 5. The Registrar, Central Administrative Tribunal, Patna. ------------- Respondents ------ For The Petitioner : Mr. Lalit Kishore, Sr. Advocate with M/s Sudhir Singh and Arbind Kumar Singh, Adocates For Union of India: Mr. Dharmeshwar Mishra, Advocate -------- P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON’BLE MR. JUSTICE DINESH KUMAR SINGH Navin Sinha, & Dinesh Kumar Singh,JJ. Heard learned Counsel for the petitioner and the learned Counsel for the respondents. 2. The petitioner was holding the post of Auditor under the Controller of Defence Accounts. He was sent on deputation on 19.6.1981 to the Mica Trading Corporation (hereinafter called ‘MITCO’), a Government of India Undertaking, for a limited duration. Subsequently he came to be absorbed in the services of MITCO with the concurrence of the Central Government on 17.10.1984 with effect from 19.6.1984. In pursuance thereof he exercised his option for commutation of pension in 1991 which came to be accepted by the Central Government and his commuted pension was paid to him. He 2 then agitated shifting of his date of absorption before the Central Administrative Tribunal, Patna Bench, registered as O.A. No. 29 of 1992. By order dated 15.2.1994 the date of his absorption was shifted from 19.6.1984 to 1.6.1985. Subsequently the Central Government issued a notification dated 14.6.1994 notifying his date of absorption as 1.6.1985. The petitioner then came to this Court in C.W.J.C. No. 1517 of 2001 with the claim that he had a right to re-exercise his option again as to whether he would opt for pro-rata pension or commutation of pension in view of the fresh date of absorption fixed. The writ petition was dismissed on 14.12.2001 on grounds of remedy available before the Central Administrative Tribunal, Patna Bench, Patna. He then filed O.A. No. 189 of 2001 which has been dismissed leading to institution of the present application. 3. Counsel for the petitioner contended that notwithstanding the fact that the petitioner had exercised his option for commutation of pension in context of absorption with effect from 19.6.1984 no sooner that the date of absorption was changed to 1.6.1985 the petitioner was entitled to be given the option afresh whether he wanted to go opt for pro-rata or commuted pension. The scheme for pro-rata pension and commuted pension were different for the two dates of absorption i.e. 19.6.1984 and 1.6.1985. While the former date of absorption gave him a better choice of commuted pension, the latter gave him a better choice of pro-rata pension. Therefore, before he was to be denied a more advantageous position he was required to be given notice for fresh exercise of option. In absence of any fresh option exercised in terms of the fresh date of absorption he automatically came in the category of a person who has opted for pro-rata pension. Strong reliance has been placed on the orders in O.A. No. 29 of 1992 that the respondents were required to treat him as absorbed with effect from 1.6.1985 with all 3 consequential benefits of salary and pension etc. flowing therefrom. The contention, therefore, was that if the petitioner is a person absorbed from 1.6.1985 he has to be treated as a person absorbed from that date for all practical purposes as the date of absorption cannot be 1.6.1985 for certain other purposes and for the purpose of commutation his date of absorption would be 19.6.1984. That creates an anamolous position. 4. Counsel for the Union of India opposing the application emphasized that the option for commutation was exercised by the petitioner in 1991 after absorption on 19.6.1984. He accepted the monetary benefits. In O.A. No. 29 of 1992 he did not stake any claim for his right to revision of his option from commuted pension to pro-rata pension but only sought change in the date of absorption. The issue of commutation of his pension especially after payment made and accepted attained finality and was not questioned before the Tribunal also. The date of absorption may change but that would not necessarily vest in him a claim for exercise of fresh option. Even if he had a right to do so, he consciously opted not to exercise such right. Moreover consequent to the order of the Tribunal consequential orders were issued by the Central Government on 14.6.1994. The petitioner continued to receive his commuted pension in accordance with his option exercised in 1991 even thereafter and belatedly nearly seven years later he sought to question the same firstly before this Court and then before the Tribunal. 5. The petitioner consequent to his absorption with effect from 19.6.1984 consciously decided to have commuted pension. He may have had his reasons for the same with which the Court is not concerned because as a matter of fact he chose one of the two options available to him. This was acted upon when his commuted pension is acknowledged to have been paid and received in 1991. Quite obviously 4 the petitioner had a limited grievance in O.A. No. 29 of 1992 for shifting of the date of his absorption. If the petitioner had desired reopening of the entire issue with regard to his right to have an option again in context of commutation and pro-rata pension after shifting of the date of absorption to 1.6.1985 it was for him to consciously raise that issue before the Tribunal. He chose not to do so. Any attempt to do so in a fresh O. A. NO. 198 of 2001 is therefore barred by the principles of constructive resjudicata. The claim of a netter pro-rata pension scheme under the date of absorption dated 1.6.1985 did not create a vested right in him. The earlier exercise of option by him being a conscious act, we are satisfied that a conscious act was again required on his part to relinquish the benefit of earlier commuted pension given to him by a positive act of returning the monetary benefit that he may have received and simultaneously submitting a fresh option. He did no such thing. Retaining the benefit of commuted pension granted earlier because he had not perceived certain additional benefits he seeks to relinquish the earlier option. That too nearly seven years after the respondents officially informed him that his date of absorption presently had been shifted. O.A. No. 198 of 2001 preferred by him subsequently does not appear to have had the occasion to consider any explanation why such a claim was raised by him belatedly nearly seven years later. This arrangement between the parties with regard to payment of commuted pension has remained operative since 1991 and is now stated to be not relevant with effect from 2009 when he shall start receiving pension again under the relevant circulars of the Central Government noticed in Para 5 of O.A. No. 189 of 2001. 6. Even in the memo of appeal no explanation has been given for this studied silence on the part of the petitioner for nearly seven years. 5 7. In the facts and circumstances of the case, the Court is satisfied that the claim sought to be raised by the petitioner is barred by gross and inordinate delay also apart from merits and warrants no interference. 8. The writ petition is dismissed. (Navin Sinha,J.) (Dinesh Kumar Singh,J.) Patna High Court The 3rd May 2010 Snkumar/- (NAFR)