JUDGMENT 1. - The petitioner who is an Ex-Army Official having served in the Indian Army in Rajputana Rifles as Naib Subedar (1.C.O.), has moved this Court by way of instant writ petition for issuance of appropriate writ, order or directions for release of his pensionary benefits from the respondents consequent upon his retirement from the Army service on attaining the age of superannuation w.e.f. 18.8.1973 after having served for more than 23 year~in the Jat Regiment and Recruiting organisation of the Indian Army. 2. The facts which are relevant for deciding the controversy between the parties, briefly stated, are that the petitioner was enrolled in the Rajputana Rifles of the then Indian Army under the British Rule on 20.5.1936 wherein he had served for the period of ten years ranging from 20.5.1936 to 27.1 1.1946 (First phase) consequent upon his release from Army Service after the second World War when he was offered mustred out pension at the rate of Rs. 45/- per month vide (Annexure I) wherein his date of enrolment in the Indian Army (Unit MMG Bn.) Rajputana Rifles is indicated as 20.5.1936 and the date of discharge from the said unit as 27.1 1.1946 after having rendered ten years and 192 days service in the department. The services of the petitioner were again requisitioned for re-joining the Army as Subedar during the period w.e.f. 31.8.1948 to 19.5.1951 in active operations which were launched by the Government of India against Pak occupied Kashmir (for short POK) (second phase) when he was released from defence services following the declaration of cease-fire on conclusion of Indo-Pak conflict in Jammu & Kashmir and thereafter the petitioner resumed his services again with the Army for the 3rd time on re-employment in recruiting organisation as Asstt. Recruiting Officer (for short ARO) in the Corps of Recruiting Organisation as (now re-designated as Naib Subedar in third phase) w.e.f. 28.7.1952 to 18.8.1973 when he was finally discharged from the defence services on attaining the age of superannuation, i.e., 58 years after completion of about 21 years of service. It has been contended by the learned counsel for petitioner that neither pension nor gratuity was granted to the petitioner by the respondents notwithstanding his having rendered valuable service to the Nation on completion of more than qualifying period of service of 21 years for his entitlement to post retrial benefits, i.e., pension, gratuity etc. It has been contended by the learned counsel for petitioner that neither pension nor gratuity was granted to the petitioner by the respondents notwithstanding his having rendered valuable service to the Nation on completion of more than qualifying period of service of 21 years for his entitlement to post retrial benefits, i.e., pension, gratuity etc. The petitioner has sought the relief of his entitlement to the grant of pensionary benefits as admissible to the civilian staff of the Army in accordance with C.C.A. Pension Rules, 1952 by which his case is governed. 3. Being aggrieved by the impugned action of the respondents in having denied him consequential post retiral benefits as aforesaid, the petitioner was constrained to move this Court by way of instant writ petition which he filed on 30.3.1994 and which is now being finally decided by this order. 4. The petitioner has sought the relief from this Court for his entitlement to the payment of consequential benefits as admissible to the petitioner on his attaining the age of superannuation w.e.f. 18.8.1973 on the ground inter-alia that the first spell of service of the petitioner in the Army as Naib Subedar 'JCO' was for the period 20.5.1936 to 27.11.1946, about I I and half years when he was relieved from Army Service after the Second Would War on mustered out pension at the rate of Rs 45.00 per month as aforesaid and thereafter he was re-called for joining the Army as Subedar during the period 31.8.1948 to 19.5.1951 in operations against POK (second phase) for a period of 22 years and 252 days in Jat Regiment and thereafter on his re-employment in Recruiting Organisation of the Army as Jamadar now re-designated as Naib Subedar (third phase) w.e.f. 28.7.1952 to 18.8.1973 when he was finally discharged from Army after having rendered about 21 years of service. If the total period of service as rendered the petitioner to the Army in three phases is to be calculated together it comes to about 35 years and 4 months. 5. The petitioner has also placed on the record of this Court all the relevant documents including the certificates of service vide (Annexures I and 2). certificate of re-employment dated 5.9.1973 (Annexure 3), restoration of former service pension vide (Annexure 4) and other relevant documents. 6. 5. The petitioner has also placed on the record of this Court all the relevant documents including the certificates of service vide (Annexures I and 2). certificate of re-employment dated 5.9.1973 (Annexure 3), restoration of former service pension vide (Annexure 4) and other relevant documents. 6. From the perusal of the aforesaid documents it is apparent that the petitioner was entitled to payment of enhanced pension in case his former services rendered to the Army on re-employment is also taken into consideration as per the Army Order No. 504/64 which reads as under - "AO 504/64 Counting of former service for pension and Gratuity JCOs/OR & NCSEs. In accordance with Regulation 126, Pension Regs. For the Army Part I (1961), an individual who has elected to count his former service for pension on re-enrolment is required to refund the gratuity received by him in respect of such service within a period of three years from the date of his re-employment/ re-enrolment in not more than 36 instalments from his pay. The first instalment is payable within three months from the date of re-employment re-enrolment." 7. On the interpretation of the above rule it is apparent that an individual who has opted for his re-employment in Defence Services consequent upon his release from Army and in case he exercises his option to count the period of his former service rendered the Defence Forces for the purposes of pensionary benefits, the said individual on re-enrolment/re-employment with the Army is under an obligation to refund the gratuity if received by him in respect of such services within a period of three years from the date of his re-employment/re-enrolment in not more than 36 instalments to be deducted from his pay. 8. In case the concerned employee does not wish to opt for computing his past services rendered by him to the Army for his entitlement to pensionary benefits and if his consequent and final phase of service in Army on computation comes to qualifying period of more than the same service rendered by him to the Army for his entitlement to the grant of pensionary benefit i.e., more than 21 years or more than the same. Then in that even he need not opt for computing the period of his former service rendered by him to the Army consequent upon his re-employment/re-enrolment in Army. 9. Then in that even he need not opt for computing the period of his former service rendered by him to the Army consequent upon his re-employment/re-enrolment in Army. 9. Thus, it is apparent from the above that even if the earlier two phases of service rendered by the petitioner to the Army are not computed together for the purposes of computing petitioner's entitlement to grant of pension, gratuity etc., notwithstanding the same, the petitioner would still be held entitled for payment of consequent benefits, i.e., pension and gratuity consequent upon his attaining the age of superannuation w.e.f. 18.8.1973 for having rendered more than the qualifying period of service, i.e., about 22 years in the third phase. 10. I have heard learned counsel for the parties at length, examined their rival claims and contentions, perused the relevant documents on the record and also ascertained the legal position on the subject. Prima facie I am of the considered opinion that since the petitioner has rendered more than qualifying period of service to the Army, he is fully justified as regard his entitlement for the grant of benefits which are lawfully admissible to him consequent upon his attaining the age of superannuation, i.e., stepped up pension, gratuity etc. consequent upon refusal by the respondents as per the Government of India's orders from time to time and other consequential benefits as admissible to him in accordance with the rules. This is all the more just and necessary that with a view to avoid hardship to the pensioners they must be paid their dues as admissible to them immediately on their retirement from Defence Services consequent upon their attaining the age of superannuation with a view to mitigate their financial hardships and also to enable them to lead a comfortable and happy life with their family. 11. During the course of hearing learned counsel for the petitioner has vehemently contended at the bar that the petitioner has adversely suffered on account of denial of his service benefits such as pension gratuity etc. the payment of which has been inordinately delayed for the reasons best known to the respondents. He has further contended that the respondents had no authority, jurisdiction or justification to do so in gross violation of the Rules. 12. the payment of which has been inordinately delayed for the reasons best known to the respondents. He has further contended that the respondents had no authority, jurisdiction or justification to do so in gross violation of the Rules. 12. From the perusal of the reply filed by the respondents to the show cause notice issued by this Court it is apparent that the petitioner has rendered the final spell of service to the Army for a period of 23 years and 72 days which is apparent from para 7 of the reply which had been ignored for the reasons best known to the respondents and this fact has not been disputed by the respondents which by itself establishes petitioner's legitimate claim for payment of pensionary benefits. 13. I am fortified in my observations from the decisions of the apex Court as well as this Court in the matter of D.S. Nakara v. Union of India, 1983 (1) SCC 305 : 1983 (2) SLR 246 (SC) , Ramswaroop Gupta v. State, S.B. C.W.P No. 6586/1991, decided on 19.3.1997 , Bhagwan Sahai Pareek v. State, S.B.C.W.P No. 5120/1997, decided on 22.5.1997 and Bhagwani Devi v. State, S.B. C.W.P No. 5174/1992 decided on 26.5.1997 , wherein it has been held that pension is neither a bounty nor charity nor grace but a property right in accordance with Articles 300-A & 21 of the Constitution of India to which an employee is legitimately entitled consequent upon his attaining the age of superannuation from service. It does not depend upon the sweet will of the department. During the course of. hearing Mr. Rafiq learned counsel for the respondents had placed reliance upon Annexures R/2 and R/5 in support of his contentions on the ground that since the petitioner on re-employment again with the Army as A.R.O. for the 2nd time was already getting the pensionary benefits, he is not entitled to get the benefit of pension on re- employment again with the Army in accordance with Regulation 7 as referred to in Annexure R/2. 14. 14. Learned counsel for the respondents was consequently directed by this Court vide its order dated 18.3.1997 to convey definite instructions to this Court as to whether if he foregoes the benefit of past service with the Army as J.C.O. in Rajputana Rifles for alternatively the said period of service on being merged with the IIIrd and final phase, the feasibility of giving enhanced pensionary benefits so that he may get one set of consolidated pension in accordance with the Rules. 15. Thereafter, the writ petition came up for final hearing on 16.9.1997, when the arguments as advanced by the learned counsel for the parties stood concluded. 16. As a result of the above discussion, the writ petition is allowed and the respondents are directed to release the consequential benefits such as to gratuity and pension including the arrears of pension and revised pension to the petitioner to which he is entitled consequent upon his retirement from defence services on attaining the age of superannuation w.e.f. 18.8.1973 in accordance with the Rules. As regards the pension he will be entitled to payment of the same including the arrears from due after calculating revised pension at the rate of Rs. 375.00 per month w.e.f. 1.1.1986 onwards. There will be no order as to costs. The said amount admissible to the petitioner in accordance with the Rules as applicable to petitioner's case shall be payable within a period of eight weeks from the date of receipt of certified copy of this order. It is further directed that while computing the arrears of pension including the benefit of stepped up or enhanced pension, the amount as admissible to the petitioner on account of pensionary benefits for the period of three phases as referred to above shall not be separately calculated on phase-wise basis but shall be consolidated and merged together and thereafter the final figure shall be arrived at after calculating the benefits of all the three phases as take together and as admissible to the petitioner in accordance with the Rules. The petitioner shall be entitled to the benefit of past service rendered to the respondents in this regard.Petition allowed. *******