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Himachal Pradesh High Court · body

2006 DIGILAW 211 (HP)

MATBAR SINGH CHAUHAN v. STATE OF H. P.

2006-07-27

VIJAY PAL SINGH

body2006
JUDGEMENT Mr. Vijay Pal Singh Member (A): In this application the applicant has prayed for the following reliefs: a) To quash the impugned order dated 9.2.2004 (Annexure A-4) being arbitrary, malafide and illegal. b) Direct the respondents to grant all the consequential benefits to the applicant in pursuance to his name having been shown at sr. No.2-A of the seniority letter; c) Direct the respondents to afford an opportunity to the applicant to exercise his option to count his entire military service for the purpose of pensionary benefits from the present employment. d) Direct the respondents to count whole military service of the applicant for pension and grant pension and other allied benefits to the applicant at the time of his retirement and complete all the codal formalities for the same forthwith. 2.( I) In brief the case of the applicant as made out in this original application is that the applicant joined Indian Army on 8.1.1963 and retied on 2.2.1988 after putting in 25 years of service (Annexure A-1) and is receiving pension from the Army. The applicant was offered an appointment vide order dated 28.1.1995 (Annexure A-2) in the respondent department against the post of Mail Staff Nurse against the reserved vacancy for ex-servicemen and the applicant was accordingly given the benefits of Ex-servicemen for the purpose of seniority and pay (Annexure-A-3) (ii) That Rule 19 of CCS (Pension) Rules provides for counting of military service rendered before civil employment for the purpose pensionary benefits in civil. The applicant is also desirous of counting his military service for the purpose of pension and other allied benefits from the present employer. For this purpose the employee is required to exercise his option after being confirmed in the civil post. When the applicant submitted his documents for pension he was informed that he can not be permitted to count his military service as he has not been confirmed by the respondent department. The applicant was going to superannuate from service on 31.12.2002 and by that time he could put in only 8 years of service in the civil employment and thus not entitled for the pension. However, if the applicant is permitted to count his military service he will have 33 years of service to his credit for the purpose of pensionary and other allied benefits. However, if the applicant is permitted to count his military service he will have 33 years of service to his credit for the purpose of pensionary and other allied benefits. (iii) That the applicant filed OA No. 1553/2002 on 27.7.2002 before this Tribunal and the respondent department filed reply on 26.4.2003 wherein they placed on record two letters dated 8.1.2003 and 29.1.2003 (Annexure A-6 and A-7) whereby the applicant was given seniority at Sr. No.2 for the first time and was confirmed respectively. This Tribunal vide order dated 29.10.2003 (Annexure A-5) directed the respondents to treat the original application as representation and decide the same. The respondent Director has rejected the case of the applicant without appreciating the provisions contained in Rule 19 of CCS (Pension) Rules properly and the impugned order (Annexure A-4) is illegal, arbitrary and ultra virus. (iv) It is further submitted that the applicant has also not been given the benefit as a result the applicant being assigned seniority at Sr. No.2-A. (v) The application has been contested by the respondents. In the reply filed by the respondents it has been stated that though the confirmation order of the applicant was made on January 29,2003 whereby confirming the applicant from September 1, 2001 but the case of the applicant has not been found justified and covered under Rule 19 CCS (Pension) Rule 1972. Under the aforesaid rules, the elements of option and refund of pension, gratuity ete. are the essential conditions. The option can however be exercised/tendered by the civil Government employee within a period of one year only from the date of joining the civil post. The applicant who joined civil post in the respondent department on February 6,1995 did not exercise and tender his option timely as provided under the rules ibid, though he had applied for his pay fixation in September, 1995.The benefit to such an extent of pay fixation was given to the applicant at the time he applied for the same, ii) It is further submitted by the respondents that the case of the applicant was examined in view of relief No. (b) of para 7 of his OA No. 1553/02/representation as per order of the Tribunal passed in the said OA but the same was not found covered under the Rule 119(1) of CS (Pension) Rules, 1972 and was rejected as per order (Annexure A-4). 4.1 have heard learned counsel for the applicant as well as Ld. Law Officer for the respondent/State and perused the record carefully. 5. It is admitted position that the applicant served in Indian Army for 25 years till his retirement on 2.2.1988. In pursuance to an offer of appointment dated 28.1.1995 he joined as Male Staff Nurse in respondent department on 6.2.1995 (F.N) and served for about eight years till his retirement on superannuation on 31.12.2002. The mistake regarding omission of the name of the applicant in the tentative seniority list of staff nurse as it stood on 31.12.1999, issued/circulated vide letter dated 11.2.2000 of Director of Health Services Himachal Pradesh was rectified by the respondent No.2 vide order dated 8.1.2003 where after the name of the applicant appeared below seniority No.2 as 2-A. The applicant was confirmed against the post of Male Staff Nurse w.e.f. 1.9.2000 vide order dated 29.1.2003. 6.Rule 19(2)(a) CCS (Pension) Rules 1972 provides that "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 date of issue of such order, if he is or 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)". 7. This provision enjoins on the respondent department to ask an ex- serviceman to exercise his option either to opt to retain his military pension or to opt for civil pension at the time of issuing order of appointment to a civil service or post. Nothing has been shown by the respondent that they have complied with these directions and asked the applicant specifically to give his option. As the respondent department itself has failed to discharging its duty in asking for the option thus respondents cannot take the plea that the applicant did not exercise and tender such option timely. 8. Nothing has been shown by the respondent that they have complied with these directions and asked the applicant specifically to give his option. As the respondent department itself has failed to discharging its duty in asking for the option thus respondents cannot take the plea that the applicant did not exercise and tender such option timely. 8. Sub Rule 1 of Rule 19 CCS (Pension) Rules of 1972 further provides that "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 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 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 of 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 employees unit or department in India or elsewhere which is paid form the Consolidated Fund of India or for which pensionary contribution has been received by the Government; 9. In the present case the applicant was not confirmed on due date because of wrong preparation of seniority list of Staff Nurse as it stood on 31.12.1999. This mistake was rectified by the respondents vide order dated 8.1.2003 and the applicant was assigned seniority at Sr. No.2-. The applicant was confirmed w.e.f. 1.9.2000 vide order dated 29.1.2003. Since the applicant was confirmed w.e.f. 1.9.2000 the date when he was in service so the respondent! department was required to ask the applicant to exercise his option while issuing the order of confirmation. Thus the provisions of Rule 19 (1) ibid have not been complied with by the respondents. 10. From the foregoing and the facts noticed from the pleadings, it is amply evident that the respondents at no point of time asked the applicant to exercise his option. 11. Thus the provisions of Rule 19 (1) ibid have not been complied with by the respondents. 10. From the foregoing and the facts noticed from the pleadings, it is amply evident that the respondents at no point of time asked the applicant to exercise his option. 11. In view of above discussions, facts and circumstances of the case, the present original application is allowed with the following directions:- (a) Respondents to ask the applicant to exercise his option for counting his military service for the purpose of pensionary benefits as required under Rule 19 (1) ibid with in a period of one month form the date of this order and (b) If such option is exercised by the applicant within 15 days, the respondents shall grant him pensionary benefits with all consequential benefits after releasing all the due amount from the applicant in one lump-sum as per provisions of Rule 19 of CCS (Pension) Rules, 1972 within three months from the date of receipt of option of the applicant. (c) Respondents to grant all the consequential benefits to the applicant as may be due to him in pursuance to his name having been brought at Sr. No. 2-A of the seniority list. In the facts and circumstances of the case, this original application is disposed of with no orders as to costs.