Andhra Pradesh High Court - Amravati

Deendayal, vs Tiumala Tirupati Devasthanams, on 10 January, 2024

         THE HON'BLE SRI JUSTICE HARINATH.N

            WRIT PETITION No.26757 of 2003

ORDER:

The petitioner is aggrieved by the inaction of the

respondent in granting pension for the service rendered by

the petitioner as Security Guard in respondent

Devasthanam. The petitioner was appointed as a Security

Guard on 30.03.1982 with the respondent Devasthanam and

his service were regularised on 19.04.1988. The petitioner

attained the age of superannuation on 28.02.1997, prior to

his employment with the respondent Devasthanam the

petitioner served in Army and retired from Army. The

petitioner submits that his case for grant of pension for the

service rendered with the respondent Devasthanam was not

considered on account of the petitioner not having minimum

qualifying service of ten (10) years with the respondent.

Aggrieved by the same the petitioner filed W.P.No.18224 of

1998 and this Court vide order dated 16.02.2000 has

ordered that the entire service of the petitioner from

01.04.1982 to 28.02.1997 has to be taken into account for

the purpose of counting the qualifying service and also held HN,J

that as the petitioner has completed ten (10) years of

qualifying service, he is entitled for pension under Rule 19.

This Court has also observed that in the event the petitioner

exercising his option in accordance with Rule 19 within a

period of two (02) weeks from the date of receipt of copy of

the order, the respondent Devasthanam shall consider the

case of the petitioner for payment of pension and accordingly

disposed of the Writ Petition with the said observation.

2. The learned counsel for the petitioner submits that the

petitioner is drawing pension from his earlier service with

Indian Army and submits that he would be entitled for

pension from the respondent Devastham and that there is no

bar for being entitled to draw duel pension.

3. The learned counsel for the petitioner has placed on

record the proceedings of Ministry of Defence dated

17.01.2013, it was clarified with respect to grant of duel

family pension from Military as well as Civil employment, the

operative portion of the circular reads as follows:

"In order to consider various issues on pension of Armed Forces personnel and Ex- Servicemen, the Government had constituted a Committee of Secretaries headed by Cabinet HN,J

Secretary. The Committee in its Report has recommended that NOK of a pensioner who gets second employment in the Government after discharge from military service would be entitled to draw two Family Pensions.

       The        above    recommendation            of     the
Committee          has    been         accepted     by      the

Government and the President is pleased to decide that the families of Armed Forces pensioners who got re-employed in Civil Departments/PSUs/Autonomous bodies/Local Funds of Central/State Governments after getting retired from military service and were in receipt of military pension till death, shall be allowed to draw Family pension from military side in addition to the family pension, if any, authorized from the re-employed civil department subject to fulfillment of other prescribed conditions as hithertofore.

The provisions of this letter shall be applicable to the Armed Forces personnel who got discharged/retired/invalided out from service with effect from 24th September 2012 or thereafter. Benefit of these provisions shall also be allowed in past cases however the financial benefit shall be granted from 24th September 2012 only.

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Pension Regulations of the three Services shall be amended in due course.

There issues with the concurrence of Finance Division of this Ministry vide their I.D.No.PC1/10(12)/2012/FIN/PEN dated 10.01.2013."

4. The learned counsel for the petitioner also placed

reliance on judgment of Hon'ble High Court of Punjab and

Haryana in the matter of Union Territory of Chandigarh

and Another Vs. Jaswinder Kaur and Others 1 and

submits that the case of the petitioner therein was

considered for grant of duel pension. It is also submitted that

the petitioner is entitled for grant of pension from the

respondent also and prays for a direction to the respondent

to pay the pension for the petitioner services rendered as a

Security Guard in respondent Devasthanam.

5. The learned Standing Counsel for respondent

Devasthanam has drawn the attention of the Court to para-6

of the counter, he also submits that the petitioner's case

cannot be considered and placed reliance on Rule 19 of the

Andhra Pradesh Revised Pension Rules, 1980. He also

submits that the petitioner failed to exercise the option as is

1 2016 LawSuit(P&H) 39000 HN,J

mandated under Rule 19 and as such, the petitioner would

not be entitiled for grant of duel pension. The learned

Standing Counsel also submits that the circular categorically

has clarified as to who would be eligible for grant of pension

and that it is clear that the provisions of the circular is

applicable to armed forces person who got

discharged/retired/invalidated out from service with effect

from 24.09.2012 or thereafter. The benefit of these provisions

would also be allowed in past cases however, the financial

benefit shall be granted from 24.09.2012 only. It is submitted

that the petitiner retired from service with respondent

Devasthanam on 28.02.1997 and as such, the said circular

cannot be made applicable to the petitioner.

6. Considering the submissions of both the learned

counsel, this Court has no hesitation to find that the circular

relied upon by the petitioner cannot be made applicable to

the petitioner. The judgment of Hon'ble High Court of Punjab

and Haryana cannot also aid the petitioner's case for

considering this case for grant of family pension for the

service rendered by the petitioner with the respondent

Devasthanam. Rule 19 reads as follows:

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"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 superannuation and who, before such re-

employment, had rendered regular military service after attaining the age of eighteen years, may, on his regular appointment to 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 service shall not count as qualifying service, or

(b) to refund the pension or gratuity 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 he 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.

(2)(a) The option under sub-rule (a) shall be exercised within six months of the date of issue of the order of regular appointment to a civil service or post on re-employment, or if the HN,J

Government servant is on leave on that day, within three months of his return from leave, whichever is later.

(b) If no 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 (I) shall be required to refund the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, the first instalment 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, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded the unrefunded amount of 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 HN,J

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."

6. Rule 19, 2(b) mandates that if no option is exercised

then the Government servant shall be deemed to have opted

for clause (a) of sub-rule (1) which amply clarifies that the

petitioner cannot expect pension for the services rendered for

respondent Devasthanam having failed to exercise the option

as mandated under Rule 19 of the Andhra Pradesh Revised

Pension Rules 1980.

7. Accordingly, the Writ Petition is dismissed holding that

the petitioner cannot be granted pension for the service

rendered with the respondent Devasthanam. There shall be

no order as to costs.

As a sequel miscellaneous application, pending, if any,