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2023 DIGILAW 1287 (AP)

Union of Indiad v. P. V. Subba Rao

2023-09-12

K.MANMADHA RAO, RAVI NATH TILHARI

body2023
JUDGMENT RAVI NATH TILHARI, J. - Heard Sri.T. Ashok Srivastava Reddy, learned Counsel representing Sri. N. Harinath, learned Deputy Solicitor General of India, for the Petitioners and Sri. Mahanthi Regulagadda, learned Counsel representing Sri. A. Tata Rao, learned Counsel for the Respondent No. 1. 2. This Writ Petition under Article 226 of the Constitution of India has been filed by the Union of India and its authorities, challenging the Order, dtd. 29/7/2009, passed by the Central Administrative Tribunal, Hyderabad, ('CAT) in Original Application No. 146 of 2004 ('O.A.') filed by the Respondent No. 1, which was allowed to the extent indicated in the judgment of which reference would be made shortly. 3. The 1st Respondent herein is the Applicant and the Petitioner Nos.1 to 4 are the Respondent Nos. 4, 3, 2 and 1 respectively in O.A. The present 2nd Respondent is the CAT. The parties shall be referred as in the O.A. 4. The Applicant (1st Respondent herein) was initially recruited as Store Keeper Technical Class-III Rank Sapper in Madras Engineer Group and Center, Bangalore, on 7/7/1969 and was discharged from the military service on 1/4/1979 on compassionate ground. The Military pension was not granted to him as he did not fulfill the criterion of qualifying service. However, pension equivalent to service gratuity was granted while discharging him from the military service. At the time of his discharge, he was drawing pay of Rs.252.50 per month. 5. The Senior Superintendent of Post Offices, Prakasham Division, Ongole, 1st Respondent sent requisition to the District Employment Exchange, ['DEE'] Ongole, for sponsoring the candidates for the post of Short Duty Postal Assistants [in short 'SDPA'], Prakasam Postal Division, to utilize their services as and when required, till regularly absorbed. The Notification was issued for Open Category ['OC'] only. The Applicant was sponsored by the Employment Exchange, along with other candidates. After the selection process, he was selected as SDPA. His services were utilized as SDPA during the years 1981 and 1982. He was appointed as Time Scale Postal Assistant in the scale of Rs.260.008-300-EB-8-340-10-360-12-420-EB480 with effect from 19/4/1983 on regular basis. His pay was worked out and fixed at Rs.277.68 (initial pay in time scale 260.00 + pension equivalent service gratuity @ 17.68 per month given for his military service by the military authority). He retired from service on superannuation on 31/5/2004. He made representation, dtd. His pay was worked out and fixed at Rs.277.68 (initial pay in time scale 260.00 + pension equivalent service gratuity @ 17.68 per month given for his military service by the military authority). He retired from service on superannuation on 31/5/2004. He made representation, dtd. 20/12/1984, to count his past military service and for re-fixation of pay on entry into civil service and for the purpose of pension as per Rule 19 of Central Civil Services (Pension) Rules, 1972 ['Pension Rules 1972']. His request was not acceded by the authorities. 6. The Applicant filed O.A. No.146 of 2004 seeking direction to count his military service period of nine years 143 days towards qualifying service for civil pension and to count his SDPA service as full time Postal Assistant service for payment of arrears as well as pensionary benefits. 7. The CAT allowed the O.A. to a limited extent by Judgment and Order, dtd. 29/7/2009. 8. The CAT rejected the claim of the Applicant that, his services as Short Duty Clerk should be taken as full time Postal Assistant for payment of arrears as well as pensionary benefits, being barred by laches and limitations. The Applicant's qualifying service had been reckoned from the date of his regular appointment i.e., 19/4/1983 as Postal Assistant. 9. The CAT allowed the Applicant's claim for counting his armed service for fixation of his pay in the Civil Post and for pensionary benefits, as indicated in paragraph 39 of its judgment, on merits, after rejecting the objection of the respondents that such claim was barred by limitation. 10. The CAT held as under in para 39 of its judgment: "39. The applicant was clearly an Ex-serviceman and the respondents have not been able to give any sound reason for denying his claim. He had exercised his option for counting of his military service in civil employment and this option had to be accepted by the respondents. Of course, as a result of acceptance of the applicant's claim, the respondents shall have to give an opportunity to the applicant to refund the amount received by him as commuted value of military pension, if any, and the retirement gratuity including the service gratuity. Of course, as a result of acceptance of the applicant's claim, the respondents shall have to give an opportunity to the applicant to refund the amount received by him as commuted value of military pension, if any, and the retirement gratuity including the service gratuity. After considering the entire material on record and following our orders in the OAs mentioned above, we hold that the applicant's military service had to be counted for the purpose of fixation of his salary and also pensionery benefits. Following the order of this Bench in O.A. No. 587 of 95, we direct the respondents to fix the applicant's pay when he joined as Postal Assistant at a higher stage granting him the number of increments equal to the number of completed years of service in the Armed Forces i.e., 9 years. Of course, this shall be subject to the refund of the amount received by the applicant as commuted value, military pension, if any, and the retirement gratuity including service gratuity. The applicant shall also be entitled for all consequential benefits like arrears of pay and allowances and re-fixation of pay in the reemployed post with all further consequential benefits like pensionary benefits. However, we may clarify that so far as the arrears of pay and allowances are concerned, the applicant shall be entitled to the said arrears only for a period of three years prior to the date of filing of this O.A. i.e., 3/2/2004 and for subsequent arrears, from the date of filling of this OA till his retirement. For the prior period, there shall be only notional fixation of pay, but actual arrears shall be paid only for the period indicated. The reason for this is that the applicant's claim for the arrears for the prior period is treated by us as barred by limitation, though notional fixation shall be done for the entire period to work out arrears for the period for which they are to be actually paid. We direct the respondents to comply with this order within a period of six months of the receipt of this order. The respondents are also directed to count 9 years 143 days Armed service for pensionery benefits." 11. We direct the respondents to comply with this order within a period of six months of the receipt of this order. The respondents are also directed to count 9 years 143 days Armed service for pensionery benefits." 11. Thus, the claim of the Applicant for counting his past military service for fixation of his salary in the civil post and for pensionary benefits was allowed on the ground that the Applicant was an Ex-Serviceman and he exercised his option for counting his military service in civil employment, which option had to be accepted by the Respondents. 12. Further, the CAT observed that, the case of the Applicant should be decided by following its previous orders in O.A. Nos. 1281 of 1994, 587 of 1995 and 1162 of 2002. It rejected the contention of the Respondents that in Writ Petition No.2986 of 2004 filed against the Judgment in O.A. No. 1162 of 2002, there was stay of operation of the Tribunal's order and consequently the same be not followed, observing that the order of the CAT was not set aside by the High Court in W.P.No.2986 of 2004. 13. The applicant has not challenged the judgment of the CAT to the extent of rejection of his claim. 14. The Petitioners have challenged the judgment of the CAT to the extent the O.A has been allowed. 15. Sri. Ashok Srivastava Reddy, learned Counsel for the Petitioners submitted that the Order of the CAT, dtd. 31/7/2003, in O.A. No.1162 of 2002 was challenged in W.P. No. 2986 of 2004, in which initially the operation of the order of the CAT was stayed and finally the Writ Petition was allowed by the Division Bench of this Court on 24/2/2014, setting aside the Order of the CAT. His submission is that, the present Writ Petition also deserves to be allowed as the CAT decided the claim of the Applicant, also following its previous orders, including the one passed in O.A. No. 1162 of 2002. 16. Learned Counsel for the Petitioners further submitted that, the Applicant in O.A. No. 1162 of 2002 was also discharged from the military service on his own request. He had also not completed the required period in the military service to become eligible for any pension. After discharge from the military service, he was appointed as driver (MMS) by way of direct recruitment through employment exchange. He had also not completed the required period in the military service to become eligible for any pension. After discharge from the military service, he was appointed as driver (MMS) by way of direct recruitment through employment exchange. He submitted that, in the judgment in W.P. No. 2986 of 2004, it was held that, since the services rendered by the Applicant therein, were a non-pensionary services, as he had served only for six [06] years and six [06] months, and had received only gratuity, his past services rendered in the military services could not be counted as qualifying service in the civil re-employment, as that applicant could not be termed "Ex-Serviceman" under Rule 2(c) of the Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 [in short 'Rules 1979']. He submitted that, the same is the case of the present Applicant, herein, as he was also discharged on his request; had not completed the qualifying service for pension and was entitled to and received only the gratuity. 17. Learned Counsel for the Petitioners placed reliance in the case of The Director General, Posts, Department of Posts Dak Bhavan, New Delhi Vs. Sk. Muzibul Hussain [W.P. No.2986 of 2004, decided on 24/2/2014, arising out of O.A. No. 1162 of 2002, referred to above]. 18. Learned counsel for the petitioner emphasized that the Applicant herein was re-appointed in Civil Employment not as "Ex-Serviceman", but only as OC candidate. 19. Learned Counsel for the 1st Respondent, referring to Rule 2(c) of the Rules, 1979, submitted that, the 1st Respondent is covered in the definition of "Ex-Serviceman" as he made request for discharge on medical grounds. 20. Placing reliance on Sansar Chand Atri Vs. State of Punjab and Another, (2002) 4 Supreme Court Cases 154. he submitted that, the definition of "Ex-Serviceman" has to be given a broader meaning. There is no rationale to exclude those released from service, like the applicant/1st Respondent. 21. He submitted that, the 1st Respondent's reappointment was only as "Ex-Serviceman". If it is taken as general (OC) Candidate, the re-appointment could not have been made at all, as by that time the 1st Respondent was over-age and the reappointment could only be by granting relaxation in age. Such relaxation could be granted only to an Ex-Serviceman, under the Rules 1979 and not to an OC candidate. 22. If it is taken as general (OC) Candidate, the re-appointment could not have been made at all, as by that time the 1st Respondent was over-age and the reappointment could only be by granting relaxation in age. Such relaxation could be granted only to an Ex-Serviceman, under the Rules 1979 and not to an OC candidate. 22. Learned Counsel for the 1st Respondent further submitted that, the appointment letter of the 1st Respondent, dtd. 1/12/1980, did not contain the information of submitting the option under Order 16 of the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986, [in short 'the Order, 1986'] and under Rule 19 of the C.C.S. (Pension) Rules, on reemployment. Consequently, such option could not be exercised within time. The same however, was submitted on 24/12/1984 to the Senior Superintendent Post Offices, Ongole, for taking into account his past services of 9 years 143 days in Army, before the Order of confirmation dtd. 19/4/1986. The 1st Respondent had also submitted the declaration and "Form-B" vide letter, dtd. 1/11/1989. So there was compliance with the rules and if any delay was caused it was due to the fault of the authorities, for which the applicant could not be denied the benefit of exercise of option. The order of the C.A.T, therefore is perfectly legal and justified. 23. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record. 24. The points which arise for our consideration and determination are as under:- i) Whether the applicant-1st respondent is ExServiceman under Sec. 2(c) of the Ex.Serviceman (Reemployment in Central Civil Services and Posts) Rules, 1979 and his past military service deserves to be counted on re-employment in civil post for pay and pension fixation? ii) Whether the judgment of the Tribunal calls for any interference? Consideration of Point No.(i). 25. It is admitted to both the sides that the applicant was given re-employment after he had served in Army, from where he was discharged on his request on 1/4/1979. It is also undisputed that his Military Service was short of 10 years and he was not eligible for Military Pension, which was not granted, but the gratuity was allowed by discharging him from Military Service. 26. The entire submission of both the sides centers round the definition of 'Ex-serviceman' under Rule 2(c) of the Rules, 1979. It is also undisputed that his Military Service was short of 10 years and he was not eligible for Military Pension, which was not granted, but the gratuity was allowed by discharging him from Military Service. 26. The entire submission of both the sides centers round the definition of 'Ex-serviceman' under Rule 2(c) of the Rules, 1979. So the applicability of the Rules, 1979 is undisputed. Besides, the matter pertains to reemployment of a person discharged from military service, on which subject, except the Ex-serviceman (Reemployment in Central Civil Services Post) Rules, 1972, no other rule has been pointed out. 27. Learned counsel for the petitioners submitted that the applicant was not Ex.Serviceman under Rule 2(c) of the Rules, 1979. The definition of Ex.Serviceman under Sec. 2(c) upon which he placed reliance, giving emphasis on Clause-(iv) is as under: 2. In rule 2 of the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, for clause (c), the following clause shall be substituted, namely (c) 'ex-servicemen' means a person, -who has served in any rank (whether as a combatant or as a non-combatant) in the Regular Army, Navy and Air Force at the Indian Union hut does not include person who has served in the Defence Security Crops. the Genera? Reserve - Engineering Force, the Lek Sahayak Sena and the pate military forces; and (i) who has retired from such service after earning his/her pension; or (ii) Who has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (iii) who has been released, otherwise than on his own request, tram such service as a result at reduction in establishment -; or (iv) who has been released from such service after completing the specific paned of engagement, otherwise than at his own request or by way of dismissal or discharge - on account of misconduct or inefficiency, and has been given a gratuity; and includes personnel of the Territorial Army of the following categories, namely: (i) pension holders for continuous embodied service; (ii) persons with disability attributable to military service; and (iii) gallantry award winners. Explanation : The persons serving in the Armed Forces of the Union, who on retirement from service, would come under the category of ex-servicemen' may be; permitted to apply for reemployment one year before the completion of the specified term of engagement arid avail themselves of all concessions available to exservicemen but shall not be permitted to leave the uniform until they complete the specified term of engagement in the Armed Forces of the Union. Note : The principal rules were published vide notification No. GSR 1530, dated the 29/12/19/9 in the Gazette of India, Part II. Sec. 3, Sub Sec. (i) at pages 3004-3005." 28. Considering the aforesaid definition W.P.No.2986 of 2004 was allowed. The order of the Tribunal in O.A.No. 1162 of 2002 was set aside. Petitioner's counsel placing reliance, on above definition and the judgment, submitted that the applicant was also discharged from Military Service on his own request and had been allowed gratuity but not pension, therefore he was not covered in the definition of 'Ex.Serviceman'. His past service rendered in Military could not be counted as qualifying service in civil employment. 29. Learned counsel for the 1st respondent referred to Rule 2(c) of the Rules, 1979, to submit that since the applicant was relieved from Military Services on medical ground attributable to Military service or circumstances beyond his control, he shall be Ex.Serviceman. Rule 2(c) as referred by him is as under: "2. 29. Learned counsel for the 1st respondent referred to Rule 2(c) of the Rules, 1979, to submit that since the applicant was relieved from Military Services on medical ground attributable to Military service or circumstances beyond his control, he shall be Ex.Serviceman. Rule 2(c) as referred by him is as under: "2. Definitions In these rules, unless the context otherwise requires- (c) An 'ex-serviceman' means a person:- (i) who has served in any rank whether as a combatant or noncombatant in the Regular Army, Navy and Air Force of the Indian Union, and (a) who either has been retired or relieved or discharged from such service, whether at his own request or being relieve by the employer after earning his or her pension: or (b) who has been relieved from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or (c) who has been released from such service as a result of reduction in establishment: Or (ii) who has been released fromsuch service after completing the specific period of engagement, otherwise than at his own request, or by way of dismissal, or discharge on account of misconduct or inefficiency and has been given a gratuity; and includes personnel of the Territorial Army, namely, pension holders for continuous embodied service or broken spells of qualifying service; or (iii) personnel of the Army Postal Service, who are part of Regular Army and retired from the Army Postal Service without reversion to their parent service with pension, or are released from the Army Postal service on medical grounds attributable to or aggravated by military service or circumstances beyond their control and awarded medical or other disability pension; or (iv) Personnel, who were on deputation in Army Postal Service for more than six months prior to the 14/4/1987; or (v) Gallantry award winners of the Armed Forces including personnel of Territorial Army; or (vi) Ex-recruits hoarded out or relieved on medical ground and granted medical disability pension, Explanation: The persons serving in the Armed Forces of the union, who on retirement from service, would come under the category of "Exservicemen" may be permitted to apply for re-employment one year before the completion or the specified terms of engagement and avail themselves of all concessions available to ex-servicemen but shall not be permitted to leave the uniform until they complete the specified terms of engagement in the Armed Forces of the Union." 30. In our view, none of the definitions of 'Ex-serviceman' as are being relied upon by the learned counsel for the petitioners and applicant/1st respondent herein, are applicable. The reason is that the 1st definition is as was amended on 27/10/1986 and the 2nd definition is as was amended on 4/10/2012. The applicant-1st respondent was re-employed during the years 1981-82. So the definition of 'Ex-serviceman' as it stood at that time, should be taken into consideration and not the subsequently amended definitions. 31. 'Ex-serviceman' as defined under rule 2(c) of the Rules, 1979, unamended, reads as under: "2. Definitions - In these rules, unless the context otherwise requires- (c) "ex-serviceman" means a person, who has served in any rank(whether as a combatant or as non-combatant), in the Armed Forces of the Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles. Defence Security Corps, General Reserve Engineering Force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation, and (i) has been released, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency, or has been transferred to the reserve pending such release; or (ii) has to serve for not more than six months for completing the period of service requisite for becoming entitled to be released or transferred to the reserve as aforesaid; or (iii) has been released at his own request after completing five years' service in the Armed Forces of the Union." 32. Thus, Rule 2(c) as quoted above, provides that Ex-Serviceman means a person, who has served in any rank whether as a combatant or as non combatant, in the Armed Forces of the Union, including the Armed Forces of the former Indian States, but excluding the Assam Rifles, Defence Security Crops, General Reserve Engineering force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation, and, as per Clause-(iii), "has been released at his own request after completing five years in the Armed Forces of the Union." 33. It is not the petitioner's case that the applicant did not serve for continuous period of not less than six months after attestation. It is also not their case that he served in Assam Rifles, Defence Security Crops, General Reserve Engineering Force, Lok Aahayak Sena and Territorial Army. It is not the petitioner's case that the applicant did not serve for continuous period of not less than six months after attestation. It is also not their case that he served in Assam Rifles, Defence Security Crops, General Reserve Engineering Force, Lok Aahayak Sena and Territorial Army. The applicant was released at his own request, but it is not the petitioner's case that the release was before completion of five years in the Armed Forces of the Union. 34. Consequently, in our considered view the applicant even if released at his own request, after completing five years in the Armed Forces of the Union, would be covered under Rule 2(c) read with its Clause-(iii). Even if he did not complete eligible service period for pension i.e 10 years and was not granted military pension but was granted gratuity, it cannot be said that he is not an Ex-Serviceman. The question that the applicant was not getting the military pension, but only the gratuity, is not relevant at all for considering him ex-serviceman under the Rules, 1979 as it stood at that relevant point of time. 35. The language of Rule 2(c), unamended, is plain and simple. It does not admit of any other interpretation. 36. The judgment by a Coordinate Bench in W.P.No.2986 of 2004 decided on 24/2/2014, is based on rule 2(c) as amended in 1986. Consequently petitioners cannot have any help of that judgment in the present case. 37. In Sansar Chand Atri (supra), upon which learned counsel for the applicant placed reliance for the expression 'ExServiceman', the Hon'ble Apex Court held that the mere fact that after long period of service if Ex-Serviceman voluntarily quits service with the consent of the employer, he should not be placed in a disadvantageous position for claiming the benefit of reservation of Ex-Serviceman. 38. There the expression 'Ex-serviceman' as defined under the Punjab Recruitment of Ex-serviceman Rules, 1982, was under consideration, which is different from the Rules, 1979. In the present case, we have observed in the earlier part of this judgment that on the plain and simple reading of Rule 2(c) of Rules, 1979, the applicant is an 'Ex-serviceman'. 39. The next submission of the learned counsel for the petitioners that the 1st respondent was appointed in OC category and not as an 'Ex-serviceman' deserves rejection. In the present case, we have observed in the earlier part of this judgment that on the plain and simple reading of Rule 2(c) of Rules, 1979, the applicant is an 'Ex-serviceman'. 39. The next submission of the learned counsel for the petitioners that the 1st respondent was appointed in OC category and not as an 'Ex-serviceman' deserves rejection. The vacancies might have been of General Category (OC) that does not mean that Ex-serviceman could not be appointed. The reemployment of the applicant is referable to the Rules, 1979 only. Otherwise, he could not be appointed, as by that time, he was 43 years of age and was overage. 40. At this stage we may briefly, refer to Rules, 1979. Rule 3 provides that they shall apply to all the Central Civil Services and Group-C and Group-D and the post of the level of Assistant Commandant or Para-military Forces. Rule 4 provides for reservation of vacancies to certain percentage in each of the categories. Rule 5 provides for special provision regarding the age limit, according to which every Ex-Serviceman shall be eligible to deduct the specified period, in terms of Rule 5, and after such deduction, if the resultant age does not exceed the maximum age limit prescribed for the post for which he seeks appointment by more than three years, he shall be deemed to satisfy the condition regarding age limit. We are of the considered view that the applicant's re-employment was considering him an 'Ex-serviceman'. 41. Now coming to the point of computation of the Military Service of the applicant for fixation of pay and pension, the Tribunal has recorded that the past Military services should be counted. 42. So far as the fixation of pay is concerned, Order 16 of the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986, provides as under: 16. FIXATION OF PAY OF EX-COMBATENT CLERKS/STOREMEN: (1) In partial modification of the provisions contained in orders 4 and 5 above, ex-combatant clerks on their reemployment as Lower Division Clerks or Junior Clerks in the Civil posts and Ex-storemen in the Armed Forces on their reemployment as storemen in Civil Posts) shall have the option to get their pay fixed under orders 4 and 5 above in accordance with the procedure indicated in sub-para (2) below. EXPLANATION: (i) The option once exercised is final. EXPLANATION: (i) The option once exercised is final. The reemploy pensioner should be asked to exercise the option within the period of three months from the date of his reemployment. (ii) Ex-combatant clerks and Storemen referred to in this order will include reservists released at their own request or on compassionate or medical grounds. (2) Services rendered as Combatant Clerks and Storemen in Armed Forces shall by treated as equivalent to service as Lower Division Clerks / Junior Clerks and Storemen respectively in civil posts respective of the pay drawn in those posts in the Armed forces. The initial pay in such cases shall be fixed in the time scale of the reemployed posts at a stage equivalent to the stage that would have been reached by putting in the Civil posts in the Armed forces The pay so fixed will not be restricted to the pre-retirement pay. The fixation of pay in these cases shall be done by invoking the provisions of Fundamental Rules 27. EXPLANATIONS: (i) For the purpose of calculation of completed years of services rendered in the Armed Forces the non-qualifying service in the Armed Forces will not be taken into account. (ii) Pension as defined in order 3(1) above shall be deducted from the pay fixed under this rule after ignoring Rs.15.00 thereof and only the net is payable. (iii) If the resultant amount does not correspond to a stage in the scale applicable to the reemployed post, pay may be fixed at the next lower stage and the difference allowed as personal pay to be absorbed in future increases of pay. (iv) Where the pay in such cases is fixed below the minimum of the pay scale of the reemployed post as a result of adjustment of amount of pension drawn by him from the Army in excess of Rs.15.00 per month, increases in pay may be allowed after each year of service at the rate of increment admissible as if the pay has been fixed at the minimum till the minimum of the scale is reached. Thereafter, subsequent increments may be granted in the scale of the reemployed post in the usual manner." 43. Order 16(1) of the Order, 1986, provided for pay fixation. This order was in partial modification of orders 4 and 5. Thereafter, subsequent increments may be granted in the scale of the reemployed post in the usual manner." 43. Order 16(1) of the Order, 1986, provided for pay fixation. This order was in partial modification of orders 4 and 5. This provided, to have the option to get the pay fixed under Orders 4 and 5 or in accordance with the procedure indicated in sub para (2) of Order 16. So even if order 4 and 5 were not applicable as they relate to reemployed pensionars, the applicant not being pensioner from Military service, he had the option to get his pay fixed in accordance with the procedure indicated in sub para 2 of order 16. 44. Now we may refer to Rule 19 of the C.C.S Pension Rules, 1972 which provides for counting of Military Services rendered before Civil Employment. It reads as under: "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 suparannuation 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 em discharge from military service, in 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 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 from the Consolidated Fund of India or for which pensionary contribution has been received by the Government and the pension immediately drawn shall not be required to be refunded but the element of pension which was not taken into account for fixation of pay on reemployment shall be refunded. (2) (a) The authority issuing the order of substantive appointment to a civil service or post as is referred to in subrule (1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of the 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 bring to his notice the provisions of clause (b) If an 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 installments not exceeding thirty-six in number, the first installment 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, h2-, fing elected to refund the pension, bonus or gratuity, dies before the entire amount is refund, the un refunded amount of the 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. Note.-The provisions of this sub-rule shall apply to an employee who had rendered continuous temporary non-regular military service along or in conjunction with war service and any interruption in service between the temporary non-regular military service and civil service may be condoned in accordance with the provisions of rule 28." 45. Note.-The provisions of this sub-rule shall apply to an employee who had rendered continuous temporary non-regular military service along or in conjunction with war service and any interruption in service between the temporary non-regular military service and civil service may be condoned in accordance with the provisions of rule 28." 45. Sub Rule 2(a) of rule 19 of the 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 to the Government servant to exercise the option under that sub-rule within three months of date of issue of such order, and if he is on leave on that date, within three months from return from leave, whichever is later and also bring it to his notice the provisions of Clause-(b). Sub Rule(2) (b) provides that if no option is exercised within the period referred in Clause-(a), the Government servant shall be deemed to have opted for Clause-(a) of sub-rule(1). Rule 3(a) provides that the 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. 46. The applicant's clear stand has been that his appointment letter dtd. 1/12/1980 did not have any instructions/information about submission of option form on reemployment or regarding option clause. He came to know about the option clause compliance, from Bhartiya Post in November, 1984 and then he submitted his option to the Senior Superintendent of Post Office, Ongole on 24/12/1984. Again, vide his representation dtd. 22/8/1985, he communicated to the Director General, Postal Services that he exercised his option without any delay and also requested that the delay if any was liable to be condoned. Further, in response to the letter of the Senior Superintendent of Post Office dtd. 19/12/1985, the applicant also submitted declaration in the prescribed form vide letter dtd. 1/11/1989. 47. A perusal of the applicant's reemployment order does not show the compliance with Rule 19(2)(a) of CCS Pension Rules, requiring the applicant to exercise the option under that sub rule. Further, in response to the letter of the Senior Superintendent of Post Office dtd. 19/12/1985, the applicant also submitted declaration in the prescribed form vide letter dtd. 1/11/1989. 47. A perusal of the applicant's reemployment order does not show the compliance with Rule 19(2)(a) of CCS Pension Rules, requiring the applicant to exercise the option under that sub rule. The question that the Government servant shall be deemed to have opted for clause(a) of sub rule(1), would arise if no option is exercised within the period referred to in clause(a) of sub rule(2), but in the absence of compliance with sub rule 2(a) by the authorities the consequences under sub rule(2)(b) would not follow. The period for option clause compliance would start only after the compliance by the authorities of rule 19(2)(a), which compliance was not made. 48. Further the Director General, Posts, New Delhi vide office letter No.2-35/2001-PAP dtd. 1/5/2003 addressed to the Postmaster-General, Vijayawada Region, Vijayawada also issued clear instructions in column No.vii that "the reasons for nonexercising the option within stipulated period may be ascertained from the official and sent to this office with your comments." And in column No.viii that "whether the option clause was introduced in the appointing letter, if not, the responsibility for this administrative lapse be fixed and the nature of action taken against the defaulter be intimated." Consequently for the said reasons also, we are of the considered view that the petitioners ought to have considered the option of the applicant submitted in the year 1984. 49. We are therefore of the considered view that the applicant could not be deprived of pay fixation as per order 16 of order 1986 nor fixation of pension in accordance with rule 19 of the C.C.S. Pension Rules, 1972, neither on the ground that he was not Ex.Serviceman nor that he was not the pensioner. It could also not be on the ground that he did not submit the option for such fixation in time. 50. The direction by the Tribunal granting the number of increments equal to the number of completed years of service in Armed Forces i.e 9 years, is justified. The Tribunal has also directed the applicant to refund the amount received by him as commuted value, Military Pension, if any, and retirement gratuity including service gratuity. 50. The direction by the Tribunal granting the number of increments equal to the number of completed years of service in Armed Forces i.e 9 years, is justified. The Tribunal has also directed the applicant to refund the amount received by him as commuted value, Military Pension, if any, and retirement gratuity including service gratuity. The grant of consequential benefits like scale of pay and allowances and fixation of pay in the reemployment posts with all further consequential benefits like pensionary benefits can also not be faulted. The Tribunal has also rightly awarded the arrears only for a period of three years prior to the date of filing of the O.A and for the subsequent years from the date of filing of the O.A till his retirement. For the prior period, the Tribunal has granted only notional fixation of pay as the claim for the arrears of the prior period was barred by limitation. 51. On point No.(i) we hold that the application ((1st respondent) is an ex-serviceman under Rule 2 (c ) of the Rules, 1979 and his past military service deserved to be counted on re-employment in civil post for pay and pension fixation. Consideration of point No.(ii): 52. In view of determination of point No.(i) in favour of the applicant-1st respondent, we hold on point No.(ii) that the order of the Tribunal is perfectly legal and justified and calls for no interference by this Court. 53. The writ petition lacks merit and is dismissed. 54. The petitioners are directed to comply with the direction of the Tribunal, affirmed by us, within a period of three months from today. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.