JUDGMENT U.L. Bhat 1. Petitioners 1 to 4 and 6 are ex-servicemen who are since then working as regular employees of the 1st respondent, the Cochin Port Trust. 5th petitioner died pending the O.P. They claim to be entitled on superannuation, to be paid pension at a rate computed under R.19 of the Central Civil Service (Pension) Rules, 1972 (for short, the Rules) counting military service also and seek declaration to that effect and for a writ of mandamus directing 1st respondent to take steps for implementing the provisions of R.19. Petitioners 1 and 2 have about 25 years and 20 years service respectively in the Indian Navy. Petitioners3, 4 and 6 have about 23 years, 24 years and 16 years service respectively in the Indian Navy. After retirement from the Armed Forces, they were taken in the service of Cochin Port Trust; 6th petitioner was taken in such service when 1strespondent became an Autonomous Body under the Major Port Trusts Act (38 of1963) (for short the Act). Petitioners 1 to 4 are due to retire from the service of the Cochin Port Trust on superannuation in 1982. 6th petitioner retired in October1981, after the filing of the O.P. 2. The Chairman of the Cochin Port Trust has sworn to a counter affidavit stating that in working out R.19 of the rules, the appointment of the person will have to be made and agreed to by the Defence Department and in the instant case, inspite of letters addressed to it, the defence department has not agreed to bear the pension charges on account of counting the military service. The Ministry of Shipping and Transport has, in Ext. R1- letter clarified that proportionate pensionary charges have to be borne by the Defence Authorities. In an identical case relating to another employee, the Defence Authorities under Ext. R-2 letter have directed 1st respondent to raise the debit against the pensionary liability, though the liability has not been settled as yet in spite of reminders. 1strespondent has taken up that case as test case. There have been large number of ex-servicemen under the employ of Cochin Port Trust and pensionary liabilities will be enormous. The Indian Port Trusts Association has also taken up the matter with the Central Government. 1strespondent has taken up that case as test case. There have been large number of ex-servicemen under the employ of Cochin Port Trust and pensionary liabilities will be enormous. The Indian Port Trusts Association has also taken up the matter with the Central Government. The defence department has referred the matter to their Finance Wing which in turn has referred the matter to the Department of Personnel, Ministry of Home Affairs for decision. Unless the Defence Ministry arranges to meet their liability on account of the pension payment taking into account the Military Service, 1st respondent will not be in a position to give pension counting such service. There cannot be a book adjustment between the Defence Department and the Cochin Port Trust as in the case of different departments of Central Governments. 1st respondent did not make recovery to avoid hardship to petitioners. Petitioners, in spite of exercising option, have continued to draw pension from the Defence Authorities. Defence Department ought to have been made a party to the O.P. 3. Union of India, represented by the Secretary, Ministry of Shipping and Transport is the second respondent. The second respondent has not filed a counter affidavit. However, learned Additional Standing Counsel for Central Government disputed the liability of the Defence Department and contended that Defence Department should have been made a party in the O.P. 4. The contention that Defence Department should have been made a party is unacceptable. Defence Department and Department of Shipping and Transport are departments of the Central Government. Union of India has been impleadedas a respondent and it represents all the departments. 5. Under the provisions of the Major Port Trust Act, 1963, the Cochin Port Trusthas been made into an Autonomous Body. S.28 of the Act empowers the Cochin Port Trust to frame regulations regarding leave allowances, pension and gratuity benefits for its employees. S.120 states that the first regulations shall be made by the Central Government. Accordingly the Central Government have made the Major Port Trust (Adaptation of Rules) Regulations, 1964 and the same have been subsequently amended. S.28 of the Act empowers the Cochin Port Trust to frame regulations regarding leave allowances, pension and gratuity benefits for its employees. S.120 states that the first regulations shall be made by the Central Government. Accordingly the Central Government have made the Major Port Trust (Adaptation of Rules) Regulations, 1964 and the same have been subsequently amended. The material portion of Regulations No. 4 reads thus: "Existing rules and orders and subsequent amendments made thereto on or after the coining in to force of the Major Port Trust (Adaptation of Rules) Amendment Regulations 1976 relating to the following matters, shall, to the extent they are not in consistent with the provisions of the Act or any regulations made thereunder, continue in force namely:- (i) matters specified in clauses (b), (c) and (e) of S.28 of the Act, and (ii) matters specified in clauses (b) and (c) to (n) of S.23 of the Act." S.28(b) of the Act specifies, inter alia pension, gratuity etc. Thus the C. P. Trust, as also other major Port Trusts, have adopted the rules framed by the Central Government regarding pension etc. These rules are contained in the Central Civil Services (Pension) Rules, 1972. It is accepted on all hands that these rules apply to C. P. Trust and its employees. 6. R.19 of the Rules reads thus:- "19. Counting of military service rendered before civil employment. These rules are contained in the Central Civil Services (Pension) Rules, 1972. It is accepted on all hands that these rules apply to C. P. Trust and its employees. 6. R.19 of the Rules 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, had rendered regular military service after attaining the age of eighteen years, 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 service, shall not count as qualifying service; or 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, if any, and count the previous military service as qualifying service, in which case service, so allowed to count shall be restricted to a service, within or outside the employees 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 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. (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 being 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). (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 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 unrefined amount of pension or 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 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 services". 7. There can be no doubt by virtue of Regulation.4(i) of the first regulation, the rules are applicable to the C. P. Trust and its employees, in so far as the rules are not in consistent with the Act or any regulation made thereunder. No provision in the Act or any regulation inconsistent with R.19 of the rules has been brought to my notice. However, learned counsel for 1st respondent contended that the reference to "civil services" in R.19 would show that the rule will apply to persons in civil service and since service under the C. P. Trust is not civil service, the rule cannot apply to employees, such as the petitioners who are in the service of the C. P. Trust. R.19 gives an option to a Government servant who had rendered regular military service before his re-employment in a "civil service or post", subject to the other conditions in the rule. He may opt to continue to draw the military pension in which case his former military service shall not count as qualifying service. He may also opt to cease to draw his military pension and count his previous military service as qualifying service. He may opt to continue to draw the military pension in which case his former military service shall not count as qualifying service. He may also opt to cease to draw his military pension and count his previous military service as qualifying service. In such a case, the rule describes in what manner the qualifying service is to be computed. The rule requires refund of that part of military pension which was not taken into account for fixation of pay and re-employment and which was intermediately drawn. A time limit is prescribed for exercising the option. The refund mentioned already shall be in monthly instalments not exceeding thirty-six in number, beginning from the month after the month in which option was exercised. Right to count previous service shall not revive until the whole amount has been refunded. As already stated, the rules have been adopted by all the Major Port Trusts, including the C. P. Trust. By the process of adoption, the rules "continue in force" and apply to C. P. Trust, in so far as they are not inconsistent with provisions of the Act or any regulation. There is no such inconsistency brought out betweenR.19 of the rules and any provision of the Act or any regulation, rules, as framed, were originally intended to apply only to employees in the service of Central Government, i.e., "civil service". Naturally several of the rules refer to "Civil service". (See rules, 19, 20, 27, 28, 30 etc.) or "service or post to which the rules apply" (See R.4, 18 etc.). The rules deal with rights of and benefits due to "Government servant" (See R.5, 6, 7, 13, 14, 22, 23, 24, 35, 38, 39, 40, 41). It cannot be said that these rules do not apply to C. P. Trust employees merely because the words "civil service", "Government servant" etc., have been used. By the process of adoption, for these words, the words "service under C. P. Trust" or "C. P. Trust employee" must be deemed to have been substituted. Otherwise no rule can apply to Port Trust employees. By the process of adoption, for these words, the words "service under C. P. Trust" or "C. P. Trust employee" must be deemed to have been substituted. Otherwise no rule can apply to Port Trust employees. On account of the adoption, R.19 will apply to C. P. Trust employees as if the words "C. P. Trust service" are substituted for "civil service", I am unable to agree that use of the words "civil service" in R.19 will render the rule inapplicable to ex-military personnel who join employment under the Port Trust and retire as such. 8. The next contention urged by learned counsel for 1st respondent is that as long as the defence authorities do not agree to share the burden of pensionary benefit proportionate to military service, 1st respondent has no liability to implement R.19. The Central Government which framed the first regulation must certainly have been aware of the implications of R.19; and it was knowing the implications that the rules were adopted. The central Government is certainly responsible to the C. P. Trust so far as the pensionary benefit attributable to the military service is concerned. Defence department is only a part of the establishment of the Central Government and not independent of it. The Central Government has a duty to ensure that it (through the Defence Department) bears this burden. It is open to the first respondent to take appropriate measures to ensure this burden being borne by the 2nd respondent. However that is only a matter of adjustment between respondents 1 and 2 interse. The rights and privileges vesting in the petitioners are dependent in no way on such adjustment. The employees are entitled to enjoy the benefit of R.19 irrespective of any such adjustment between respondents. By virtue of the adoption of R.19, as between the C. P. Trust employees and the 1st respondent, the liability vests in 1strespondent to implement the rule. 9. There is no dispute that the surviving petitioners have opted for the benefit under sub clause (b) of clause (i) of R.19 of the rules. It is the duty of 1strespondent to take steps to get refund of pension intermediately drawn by the surviving petitioners stated in sub clause 3(a) and compute and pay the pension counting military service also as qualifying service, subject to the other conditions of the rule. It is the duty of 1strespondent to take steps to get refund of pension intermediately drawn by the surviving petitioners stated in sub clause 3(a) and compute and pay the pension counting military service also as qualifying service, subject to the other conditions of the rule. It was also the duty of the 1st respondent to inform the Defence Department of the option exercised by the employees to ensure cessation of drawl of military pension. Admittedly the employees have continued to draw military pension even after option. That is evidently because1st respondent has not informed the Defence Department about the option and because the latter continued to disburse the pension. This will not render invalid or ineffective the option exercised by the employees. Respondents may take steps to stop payment of military pension and obtain refund of pension paid. In the result, the O.P. is allowed as follows: - (a) It is declared that the surviving petitioners are entitled to pensionary benefits under R.19 of Central Civil Services (Pension) Rules, 1972. (b) 1st respondent is directed to take steps to obtain refund as contemplated inR.19(3)(b) of the rules. (c) Respondents are directed to take steps to stop payment of military pension to the surviving petitioners and to obtain refund of military pension irregularly paid to them. (d) Respondents are directed to take expeditious steps to ensure the previous military service of the surviving petitioners to be counted for the purpose of computing pensionary benefits due to them. (e) Directing the parties to bear costs of the proceedings.