Ex. Hav. Dharam Singh vs Union Of India (Uoi) And Anr.
2000 Latest Caselaw 1194 Del

JUDGMENT

A.K. Sikri, J.

1. This is a review petition filed by the applicant PWD(respondent No. 2 in the main petition) seeking review of order dated 8th December, 1999 passed in CWP No. 581 of 1997. By the said order, CWP was allowed and applicant herein was directed to fix the pension and release pension order of the petitioner and pay arrears of pension w.e.f. 1st April, 1996 till date within a period of two months from the date of the order with direction that he should also start getting future pension regularly. On arrears of pension, interest at the rate of 12 per cent per annum was also allowed. It was noted in the order that since the petitioner had served for 22 years and 8 months with respondent No. 2 this period should be taken into consideration while fixing the pension.

2. It is a matter of record that petitioner before joining applicant/PWD, was serving in Army as Combatant soldier. He had joined army in the aforesaid capacity on 29th January, 1956 and was invalidated from Army on 2nd, November, 1971 as he suffered injury and was granted war injury pension. He is receiving that war injury pension on the basis of his service of 17 years in the Army. Thereafter, he joined PWD and UDC on 16th July, 1973 and worked till 31st March, 1996 i.e. for a period of 22 years and 8 months. There is no dispute that petitioner is entitled to get the pension from PWD. However, in this review petition, review is sought of the order dated 8th December, 1999 on the ground that petitioner can be given pension for a total service of 33 years in all and since he is getting pension from the Army on the basis of his service of 17 years, in PWD his service for the purpose of pension should be limited to 16 (33 years-17 years) and not 22 years and 8 months. In support of the stand taken by the applicant, applicant has filed office noting wherein, referring to the provisions of Rule 19 (1) of the CCS (Pension) Rules, 1972 matter was referred to Department of Pension and Pensioners Welfare for clarification and the said department has given the clarification on the" lines adopted by the applicant in this review petition.

3. On the other hand, learned counsel for the petitioner submitted that petitioner is entitled to two pensions; one he is getting from the Army and the other he is entitled to get from PWD and the service rendered in Army is not to count for the pension which he has to receive from PWD while calculating his pension in PWD. His submission is that Rule 19(1) of CCS(Pension) Rules, 1972 does not lay down any such proposition as advanced by the applicant in review petition. He further submitted that Rule 19(1) entitles ex-serviceman to continue to draw the military pension at his option, and therefore, the 2nd pension which he would receive on the basis of service rendered in civil employment is totally independent of the military pension being received by him.

4. I have given my utmost consideration to the respective submissions made by the parties. Before proceeding to deal with these submissions, it would be appropriate to reproduce the relevant portion of Rule 19 as it is the interpretation of this Rule which would determine the controversy n;

"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 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 service 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 employee's 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.

5. A reading of the aforesaid Rule would show that an ex-serviceman who is drawing military service pension may opt either to draw the military pension or retain gratuity received on discharge from military service or opt to cease to draw his pension, refund the same and get the period served in military service counted as qualifying period in civil employment. If an ex-serviceman opts to cease to draw his pension, such a situation would pose no difficulty. Then his military pension would be stopped; whatever pension he has already drawn, he would refund the same and the period spent by him in military service will count as qualifying service in the civil employment. Accordingly on his retirement from civil employment total military service as well as civil service rendered by him would be clubbed together and pension would be fixed. If the total service counted in this manner comes to more than 33 years, then the period would be restricted to 33 years.

6. However, what would be the position in case an ex-serviceman opts to continue to draw the military service pension while taking civil employment? No specific provision is made in Rule 19. All that if mentioned is that he would continue to draw military service pension. Obviously in such an eventuality his military service is not counted as qualifying service for the purpose of pension in civil employment. Thus if his civil employment is for a period which is less than qualifying period to earn pension, he cannot claim pension on the ground that the period spent by him in military service be counted to make him eligible/qualify for pension in civil employment. When that is the position and period spent by him in military service cannot come to his aid while determining whether such a person qualifies for pension in civil employment, how the period spent by him in military service an act to his prejudice and can be counted in determining the maximum qualifying service for the purpose of pension i.e. for the purpose of fixing the ceiling? Answer has to be in the negative. It may be mentioned that normally a person is not entitled to two pension except in those cases provided under Rules 18 and 19. Thus an exception is carved out for persons belongings to defense services and a person who rendered military service before taking civil employment or vice versa can continue to draw two pensions. When that is the scheme under pensions Rules, there is no reason to club the period rendered in two services, if an ex-serviceman opts to draw the military pension. It may be significant to point out that although Rule 19 specifically mentions that if after rendering military service, an ex-serviceman takes up civil employment and opts to cease to draw his pension, his previous military service has to be counted as qualifying service in the civil employment, nothing is stated in Rule 19 about counting of such service if he opts to continue to draw the military pension to cap the overall limit of 33 years for pension in civil employment. The learned counsel for the applicant/PWD admitted that this eventuality is not specifically, dealt with under Rule 19 or any other Rules. However, reliance was placed on the clarification given by Department of Pension and Pensioners Welfare when the case of the petitioner was forwarded to the department for clarification. This clarification, according to me, is not legally correct. Once the petitioner exercised his option to draw the military pension, then the periods spent by him in military service is totally divorced from the service rendered in civil employment and is not to be taken into consideration for any purpose. The entitlement of the petitioner for pension in PWD has to be on the basis of service rendered in PWD. This can be the only possible construction of Rule 19. It may be added here that these Pension Rules are the benevolent provisions for the benefit of employees and even in case of doubt, the interpretation which is beneficial to the employee has to be given.

7. In the result, this review petition seeking review of order dated 8th December, 1999 is dismissed with cost quantified at Rs. 2,000/-