ORDER : 1. The present writ petition has been filed challenging the order dated 22.11.2021 (Annex.10) passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur wherein and whereby, the part of the claim of the applicant (respondent herein) for grant of pensionary benefits for the services rendered by her from 25.06.1976 to 03.08.1987 was directed to be considered upon the applicant refunding the retrenchment compensation amount as well as other provident fund benefits etc., if any, received by her and the authorities were also directed to inform the total amount under different heads granted to her. Aggrieved by the same, the present writ petition has been filed by the writ petitioners. 2. The learned counsel appearing for the petitioners submitted that the Tribunal, while passing the impugned order, did not consider the previous litigation between the parties, particularly S.B. Civil Writ Petition No. 7064/2008 (Smt. Shashi Mishra Vs. Union of India & Ors), decided on 18.05.2015 and D.B. Special Appeal (Writ) No. 725/2015 (Union of India & Ors. Vs. Smt. Shashi Mishra), decided on 19.12.2016 whereunder, the earlier claim of the respondent herein for absorption in the same school from which she was terminated and also continuity of service, grant of back wages and retirement benefits on account of superannuation and any other benefits which was initially allowed by the learned Single Judge vide order dated 18.05.2015 and subsequently that was set aside by the Division Bench vide order dated 19.12.2016. In the Special Leave Petition also, the same was confirmed, therefore, the learned Tribunal should not have ordered for consideration for grant of pension in the background of the finality to the earlier litigation. 3. The learned counsel appearing for the petitioner also further submitted that in pursuance of the directions given by the Hon’ble Supreme Court based on the undertaking, the respondent was offered employment by the petitioners by way of appointment order dated 09.05.2001 and directed the respondent to join in the Atomic Energy Cooperative Society, Kalpakkam on or before 26.06.2001. However, the respondent has chosen not to join at the school. In the background of the above facts, the respondent is not entitled to be considered for grant of any pension after inordinate delay of near about 33 years. Therefore, he prays to allow the writ petition and set aside the order impugned passed by the Tribunal. 4. However, the respondent has chosen not to join at the school. In the background of the above facts, the respondent is not entitled to be considered for grant of any pension after inordinate delay of near about 33 years. Therefore, he prays to allow the writ petition and set aside the order impugned passed by the Tribunal. 4. The learned counsel appearing for the sole respondent submitted that the limited prayer granted by the Tribunal was only to consider the eligibility of the respondent for the entitlement of pension in terms of the law then prevailing treating the respondent as a retired employee as the petitioners agreed to consider grant of pension from their own letter issued by the petitioners on 14.06.1993. He also submitted that in the said letter, they agreed to consider grant of pension to the respondent subject to refund of PF contribution and retrenchment benefits. He also submitted that the petitioners have been making the rounds to the respondent to intimate the amount of PF contribution, retrenchment benefits and other amount, if any, required to be deposited. However, the petitioners have been dodging the matter without taking any decision by intimating the required amount to be refunded so as to consider the case of the petitioner for grant of pension. The Tribunal has only granted the relief by giving direction to the petitioners to intimate the amount of retrenchment benefits, PF contribution and other benefits, if any, required to be refunded in terms of the Memo issued by the Department of Atomic Energy dated 01.06.1987. Therefore, he also submitted that the respondent is not harping upon any pecuniary benefits on account of deemed absorption which was subject matter of the previous litigation which attained finality. Her only grievance was limited to the entitlement of the pension for the past service rendered prior to her termination in the year 1987. The Tribunal has rightly given the direction and such a direction cannot be said to be suffered from any perversity so as to warrants interference by this Court. 5. In the light of the said contention, it is relevant to refer to the previous prayer in the writ petition filed by the respondent being S.B. Civil Writ Petition No. 7064/2008 whereunder, the following prayers were made which reads as under:- “(A) That the respondents may kindly be directed to absorb the petitioner in service with retrospective effect. 5. In the light of the said contention, it is relevant to refer to the previous prayer in the writ petition filed by the respondent being S.B. Civil Writ Petition No. 7064/2008 whereunder, the following prayers were made which reads as under:- “(A) That the respondents may kindly be directed to absorb the petitioner in service with retrospective effect. (B) That the respondents may kindly be directed to pay entire back wages and other consequential benefits to the petitioner. (C) That the respondents may kindly be directed to give all retiremental benefit as the petitioner has attained the age of superannuation. (D) Any other relief which this Hon’ble Court may deem fit may kindly be granted in favour of the petitioner’ (E) Cost of the writ petition may kindly be awarded to the petitioner.” 6. The operative part of the order of the learned Single Judge dated 18.05.2015 reads as follows:- “23. As a result of the aforesaid discussion, the instant writ petition deserves to be and is hereby allowed. The respondents are hereby directed to grant all monetary benefits accruing to the petitioner treating her to be in continuous service right from the date of her illegal termination by the order dated 3.8.1987. The petitioner shall be paid all service and pensionary benefits treating her to be in continuous service and as if her services were never terminated. However, in view of the fact that this Court has concluded that the petitioner has not offered a reasonable explanation for the delay in approaching the Court between the period of 9.5.2001 to September, 2008, she will not be entitled to the actual pay, salary and emoluments which she would have drawn during this period. For this period, she will be entitled only to notional benefits. 24. The due amount shall also carry simple interest at the rate of 6% per annum. The amount accrued shall be paid to the petitioner within a period of three months from the date of this order, failing which the interest shall stand enhanced to 9% per annum.” 7. It is also relevant to refer to the order of the Division Bench dated 19.12.2016 in which, challenge was made to the order dated 18.05.2015 passed by learned Single Judge which reads as under:- “An order of a Court in favour of a person creates a right to the extent that the relief is granted. It is also relevant to refer to the order of the Division Bench dated 19.12.2016 in which, challenge was made to the order dated 18.05.2015 passed by learned Single Judge which reads as under:- “An order of a Court in favour of a person creates a right to the extent that the relief is granted. If the order of the Court is not complied with, the aggrieved has two options. One would be to pursue the matter in Court by alleging non-compliance whether by way of contempt application or a fresh case. Simultaneously, one also has the option to waive the relief granted by the Court. Such waiver may be express or may be implied by conduct. Failure to pursue the matter when the relief does not flow in terms of the Court order even while others pursued matters and obtained relief will be construed as waiver by conduct. The Respondent by not pursuing the matter can well be said to have waived the rights that accrued in her favour by virtue of the earlier orders. If Smt. Nirmal Bhalla pursued matters further in IA No. 1/1991 leading to the order dated 16.08.1993 and consequent grant of relief to her it distinguishes the case of the Respondent in as much as she did not choose to follow matters further. Those who are vigilant and alert in pursuing matters before a Court for grant of relief and those who do not, sitting, waiting and watching the outcome of litigation by others and jump on the band wagon later can well be denied relief on basis of parity. After the order dated 16.08.1993 in the IA filed by Smt. Nirmal Bhalla, the authorities issued offer of appointment dated 14.06.1993 to the Respondent and denied parity in treatment with Smt. Nirmal Bhalla in writing on 2.09.1994. The Respondent still did not approach a Court of law but merely kept on submitting representations. The authorities made an offer of appointment at Kalpakkam School on 09.05.2001 which she did not accept alleging that it was in breach of the undertaking given by the authorities before the Supreme Court and made a counter representation leading to the withdrawal of the offer on 22.09.2001. Thereafter, she did not take any steps till the writ petition was instituted in 2008. In the meantime the Respondent had reached the age of superannuation in July 2007 itself. Thereafter, she did not take any steps till the writ petition was instituted in 2008. In the meantime the Respondent had reached the age of superannuation in July 2007 itself. The writ petition was silent on this vital aspect and did not contain any specific pleading that she had already crossed the age of superannuation though the Learned Single Judge has noticed this fact in his order. If the Respondent did not discharge any duties after termination and woke up seeking parity only after the order was passed in an IA filed by Smt. Nirmal Bhalla and preferred the writ petition for the first time in the year 2008 it has to be held that the claim itself was highly belated in nature and no relief could have been granted to her on basis of parity. In (2006) 11 SCC 464 (U.P. Jal Nigam v. Jaswant Singh) denying relief claimed on basis of parity because of delay which would also impose financial burden also it was observed:- “13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights, the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” The question if the writ petition could have been directly instituted before this Court need not be dwelt upon in the facts and circumstances of the case. The order under appeal is held to be not sustainable and is set aside. The appeal is allowed.” 8. It is undisputed that the Division Bench order dated 19.12.2016 was challenged by the respondent before the Hon’ble Supreme Court in Special Leave Petition and the same was dismissed by the Hon’ble Apex Court vide order dated 07.04.2017. 9. The above litigation clearly shows that initially the respondent was given fresh appointment by the proceedings dated 09.05.2001 and she was asked to join in Atomic Energy Cooperative Society, Kalpakkam. The respondent instead of choosing to join at Kalpakkam has been insisting upon to seek parity along with other similarly situated employees whose case was considered for fresh appointment in the same school from which they were earlier terminated. The subject matter of the previous litigation was only concerned to the absorption of the respondent in the same school from where she was terminated in the year 1987. She also sought other consequential benefits in the event of she being absorbed in the same school. It is also noticed that undisputedly in the year 2007, the respondent superannuated on attaining the age of superannuation. 10. Initially, the learned Single Judge allowed the prayer made by the respondent but the Division Bench, after taking into consideration the inordinate delay in seeking the relief based on parity was rejected on the ground that there was inordinate delay of nearly 8 years and that decision of Divison Bench was also confirmed by the Apex Court in the year 2017. After dismissal of the SLP by the Supreme Court, the respondent has been claiming the relief at least for grant of pension treating the respondent termination as a retirement as proposed by the proceedings dated 14.06.1993. For the said relief, the respondent has filed the Original Application No. 290/000185/2020 before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. After dismissal of the SLP by the Supreme Court, the respondent has been claiming the relief at least for grant of pension treating the respondent termination as a retirement as proposed by the proceedings dated 14.06.1993. For the said relief, the respondent has filed the Original Application No. 290/000185/2020 before the Central Administrative Tribunal, Jodhpur Bench, Jodhpur. Though the respondent has claimed various reliefs but ultimately, she has confined her relief that she shall be granted pension for the services rendered by her from 25.06.1976 to 03.08.1987, i.e. 11 years 39 days. The Tribunal considering the confinement of the relief sought by the respondent and while taking into consideration the letter dated 14.06.1993, granted the relief to the respondent, directing the petitioners to furnish the details of PF Contribution and the amount of retrenchment compensation which is a condition precedent for consideration of case of the respondent for grant of pension. 11. The contention of the learned counsel appearing for the petitioners that in light of the previous litigation, the Tribunal should not have granted the relief to the respondent has no legs to stand for the reason that the subject matter of the previous litigation was not with respect to the entitlement of the pensionary benefits/claims for the period of 11 years and 39 days, she rendered the services with the petitioners prior to her termination in the year 1987 which was admittedly not at all the subject matter of the previous litigation. In this view of the matter, the principles of res judicata are not attracted in the present case. It is an entirely different claim and this claim of the respondent is also being supported by the communication/letter issued by the petitioners on 14.06.1993. 12. We have gone through the relevant Rules with respect to grant of pension and Rule 49 of the Central Civil Service (Pension) Rules, 1972. The relevant applicable Rule 49 was substituted on 20.07.1988, which came into force with effect from 01.01.1986, reads as under:- “ 49. Amount of pension – (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six monthly period of gratuity qualifying service. Amount of pension – (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing service of ten years, the amount of service gratuity shall be calculated at the rate of half month’s emoluments for every completed six monthly period of gratuity qualifying service. (2) (a) In the case of Government servant retiring in accordance with the provision of these rules before completing qualifying service of ten years, the amount of service qualifying shall be calculated at the rate of half month’s emoluments for every completed six monthly period of qualifying service. (b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than rupees three hundred and seventy five per mensem. (c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54. (3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one-half year and reckoned as qualifying service. (4) The amount of pension finally determined under Clause (a) or Clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pension contains a fraction of a rupee it shall be rounded off to the next higher rupee.” 13. A close reading of the Rule 49 Sub-rule 2(b), it is clear that a person, who retired before completing the qualifying service of 33 years but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) of Sub-Rule (2) of Rule 49. This means that in the present case, the respondent’s past service was more than 10 years but less than 33 years, therefore, his case has to be considered in terms of Rule 49 Sub-Rule (2)(b) subject to the respondent refunding the amount of PF contribution, amount of retrenchment compensation and any other amount, if any, received by by her. This means that in the present case, the respondent’s past service was more than 10 years but less than 33 years, therefore, his case has to be considered in terms of Rule 49 Sub-Rule (2)(b) subject to the respondent refunding the amount of PF contribution, amount of retrenchment compensation and any other amount, if any, received by by her. The questioned amount shall be informed by the petitioners as directed by the Tribunal under the impugned order. It is not disputed that persons who retired in the same school prior to 1987 were granted pension. Therefore, we have found no merit in the present writ petition and the present writ petition is required to be dismissed. 14. In the result, the instant writ petition filed by the petitioners is dismissed with a cost of Rs. 50,000/- (Rupees Fifty Thousand) to be paid to the respondent (Smt. Shashi Mishra) within one month. 15. All pending applications, if any, shall stand disposed of.