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2004 DIGILAW 515 (DEL)

RAVINDER KUMAR SHARMA v. UNION OF INDIA

2004-07-20

MANMOHAN SARIN

body2004
Manmohan Sarin, J. ( 1 ) RULE. WITH the consent of counsel for the parties the petition is taken up for final disposal. The petitioner by this writ petition seeks quashing of the orders dated 11. 8. 1997, 2. 1. 1998 and 16. 7. 2002 passed by the respondents by which the respondents declined to give to the petitioner the benefit of his 9 years regular service with the Air Force for computation of pensionary benefits. ( 2 ) THE facts dealing to the filing of the petition are as under. The petitioner Mr. Ravinder Kumar Sharma, who served with the Air Force continuously during the years 1961-70. He retired from the Air Force. Upon retirement, he was not entitled to any pension. However, he received gratuity in the amount of Rs. 1200/- approximately. ( 3 ) IN the year 1975, the petitioner joined the Department of Tele-communications as a Technician. The petitioner was confirmed on 31. 5. 1987 along with 86 other personnel. The order of confirmation appears at page 56 of the paper book. The said order as filed by the respondents is in Hindi. The substance of the first para of the said memorandum as translated into English would be somewhat as under:- "the under-mentioned technicians are appointed in substantive capacity in the grade of Rs. 975-1660. In case any of the employees happens to be an ex-serviceman and is desirous of having the service in the Armed Forces counted towards the civil pension then he ought to exercise the option by making a prayer within three months. Upon expiry of the period of three months, no request would be entertained. " ( 4 ) IT is not in dispute before the court that the petitioner did not exercise the option within three months or even within a year in terms of relaxation granted subsequently. The gratuity amount was also not refunded and is retained by the respondent. ( 5 ) MR. Dahiya, learned counsel for the petitioner urges that the above order was never notified or communicated to the petitioner. It is noticed from the order itself that it was required to be communicated to the employees mentioned therein through their heads of the department. Parties are at variance on whether the said order requiring exercise of option by the confirmed employees was communicated to the petitioner or not. It is noticed from the order itself that it was required to be communicated to the employees mentioned therein through their heads of the department. Parties are at variance on whether the said order requiring exercise of option by the confirmed employees was communicated to the petitioner or not. Learned counsel for the petitioner claims that it was not, but respondents have filed an affidavit stating that it was duly communicated. It is pointed out that there are 86 other employees also from the same department, but none ever made a grievance with regard to non-communication of the order. Be that as it may, the records of the respondent regarding its communication through the dak register are not available. It is stated that being more than 15 years old the same have been weeded out under the record retention schedule. ( 6 ) MR. Dahiya, learned counsel for the petitioner urged that the petitioner learnt of the requirement of option in the year 1997, when the petitioner heard of OM No. 28/50/87-P. and P. W. Dated 23. 5. 1994, by which the benefit of counting of the military service was extended also to temporary employees. Petitioner claims that accordingly he could have exercised the option only in the year 1997. Learned counsel submits that the petitioner had all been willing to refund the gratuity. ( 7 ) MR. Dahiya has placed reliance on a number of judgments which may be noticed in support of his contention that where option was not communicated, the Administrative Tribunal and in some of the cases the Supreme Court has granted the benefit of computation of military service on the ground that the respondents had failed in their duty to communicate the option and the concerned employee be not penalized for no fault of his. ( 8 ) RELIANCE is first placed on Union of India and others Vs. DRR Sastri, (1997) 1 SCC 514 ,. This was a case where a railway employee had resigned and joined the Heavy Engineering Corporation. The Railway Board in this case had directed the General Manager to bring the provisions of liberalized pension scheme to the notice of retired railway servants. The respondent had not been informed of the scheme and he retired from the Heavy Engineering Corporation, which did not have any such scheme. The Railway Board in this case had directed the General Manager to bring the provisions of liberalized pension scheme to the notice of retired railway servants. The respondent had not been informed of the scheme and he retired from the Heavy Engineering Corporation, which did not have any such scheme. The court allowed the benefit to be granted even though the stipulated time for option had expired. This was done upon the petitioner undertaking to refund the amount of gratuity he had already received. ( 9 ) RELIANCE is next placed on a decision of Central Administrative Tribunal Shri M. P. Limaye Vs. Union of India and Another. The benefit of counting the military service had been denied on the ground that the petitioner therein had not completed 10 years of service. Further that he had not complied with the provisions of Rule 19 (1) of CCS (Pension) Rules. This was a case where the Tribunal found the respondents to be in clear breach of Rule 19 (1) of CCS (Pension) Rules. The respondents could not place anything on record to show that they had themselves complied with the requirements of Rule 19 (1) of CCS (Pension) Rules. It was held that the respondents could not take advantage of their own wrong. ( 10 ) RELIANCE is next placed on the case decided by Central Administrative Tribunal, Shri Jagadish Chandra Dutta Vs. Union of India and others. Here again the Administrative Tribunal had issued directions for benefit of service being counted for pension on the basis of OM which relaxed the requirement of 10 years of qualifying service. In this case it was not certain whether the amount of Rs. 200/- was paid by way of pension or gratuity. The respondents had also failed to produce any material on record, regarding the intimation of option being extended to the petitioner. ( 11 ) MR. Dhayani in opposition to the arguments and pleas raised by Mr. Dahiya submits that this is a case of gross delay. The petitioner had joined service as a temporary employee in the year 1985, was confirmed in 1987. He retired from service in the year 2002. The present writ petition has been filed after his retirement. ( 11 ) MR. Dhayani in opposition to the arguments and pleas raised by Mr. Dahiya submits that this is a case of gross delay. The petitioner had joined service as a temporary employee in the year 1985, was confirmed in 1987. He retired from service in the year 2002. The present writ petition has been filed after his retirement. He submits that the petitioner made the representation regarding non-counting of his service only in the year 1997, when the confirmation order in 1987 itself had notified that option was required to be exercised within three months which period subsequently extended to one year. The option is sought to be exercised after 10 years. The petitioner retained the gratuity amount. He submits that the cited cases are distinguishable and do not advance the petitioner s case. It is stated that the petition is also bad on count of delays and laches as the petitioner approached the court in the year 2002, while the rejection had taken place as far back as in 1997. ( 12 ) MR. Arvind Nayar, learned counsel for respondent No. 1 supports the arguments of Mr. Dhyani and states that such circulars are circulated by the departments in the normal course. It was extremely unlikely that the petitioner would not have known of it. ( 13 ) THE crux of the controversy in the present case is whether the petitioner was notified and given the option to opt for the benefit of service being counted for pension in the year 1987, when he was confirmed. A perusal of the confirmation letter shows that it was not only the petitioner there were 86 other employees who were to be notified through their respective heads of departments of their confirmation and the availability of the option for counting the military service towards the pensionary benefits. The respondents case is that the confirmation order of all these 87 employees was duly circulated through the heads of the departments. In the natural order of things, it appears to me that where the appointment or confirmation of such a large number of employees is entailed and the body of the circular itself requires its communication through the heads of the department or the concerned section heads, it would have been so circulated. In the natural order of things, it appears to me that where the appointment or confirmation of such a large number of employees is entailed and the body of the circular itself requires its communication through the heads of the department or the concerned section heads, it would have been so circulated. Moreover, confirmation of an employee from temporary to a permanent employee is a significant event in the life and career of any employee. It is, therefore, extremely unlikely that the employee concerned would not know of such an order. In these circumstances when respondents say on affidavit that the order was circulated but the proof of dak register is not available on account of the weeding out of records it would be improper in my view to draw an adverse interference to hold that it had not been served and communicated to the concerned employees including the petitioner. In the cases cited by the petitioner the court gave relief when the option was not communicated. These cannot advance petitioner s case. Considering the matter from another prospective, such a disputed question or fact would require evidence and trial and is not amenable to writ jurisdiction. ( 14 ) LEAVING that apart, from the year 1987, there is complete silence till the year 1997, when the petitioner claims he came to know of the relaxation granted by the OM. The OM is of 1994. Herein again in 1997, the petitioner after rejection of his request failed to move the court immediately thereafter and filed petition only in 2002. Hence there is undue delay in moving the court. The petitioner in view of the foregoing discussion has failed to make out a case for interference in the exercise of writ jurisdiction. ( 15 ) THE petition is accordingly dismissed.