Sarwan Ram Sharma vs Uoi & Ors.
2010 Latest Caselaw 5763 Del

1
*IN THE HIGH COURT OF DELHI AT NEW DELHI

     + CM Nos.21641-642/2010 and W.P.(C) 2722/2000

                               Date of Decision : 20th December, 2010

%
      SARWAN RAM SHARMA                 ..... Petitioner
                   Through : Mr. Chittaranjan Hati, Adv.

                      versus

      UOI & ORS.                              ..... Respondents
                           Through : Mr. Jatan Singh and
                                     Mr. Ashok Singh, Advs.
CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                  NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                 NO

3.      Whether the judgment should be                         NO
        reported in the Digest?

GITA MITTAL, J. (Oral)

CM Nos.21641-642/2010

Notice. Having regard to the prayer made in these

applications, no reply is necessary. We have accordingly heard

learned counsel for the parties.

For the reasons stated in the applications, the same are

allowed.

The petitioner is permitted to incorporate para-3(vi)

mentioned in CM No.21641/2010 as additional ground as well

as the additional prayer made as (i) in CM No.21642/2010 in

the writ petition.

W.P.(C)No.2722/2000

1. This writ petition has been filed by the petitioner

aggrieved by the failure of the respondents to give the benefits

of his previous service with the Indian Army for the purpose of

computation of pension which he would be entitled to upon

retirement from the Sashastra Seema Bal („SSB‟ hereafter)

which he joined on re-employment.

2. The factual narration giving rise to the present writ

petition is in narrow compass.

3. The petitioner is stated to have joined Indian Army on 26th

April, 1951 and retired therefrom after having rendered 16

years of service on 2nd May 1969 on attaining the age of 55

years. With effect from 29th August, 1970, the petitioner was

initially re-employed with erstwhile 5th HP SSB Battalion (later

known as GC SSB Shamshi) as Head Constable/GD in the pay

scale of `110-3-131-4-143-EB-4-155. According to the

respondents, by an order dated 5th June, 1970 his pay was fixed

at `110/- which was the minimum. It has further been stated

by the respondents that for the purpose of fixation of his pay,

the respondents had ignored the entire pension and pensionary

benefits which were admissible to the petitioner for the service

rendered by him in the army in keeping with the provisions of

the Central Civil Services (Fixation of Pay on Re-employment

Pensioner) orders.

4. So far as the further service of the petitioner is

concerned, it is an admitted position that the petitioner was

granted extension on yearly basis as well as annual increment

as per entitlement till 1976. The petitioner was also confirmed

as Head Constable/GD with effect from 1st May, 1976 in the SSB

against the post after having been found him so eligible by the

Screening Committee.

5. So far as the pension which the petitioner had received

from the military is concerned, it is also an admitted position

that the petitioner had exercised the option available to him

under Rule 19 (1)(b) of the Central Civil Services Rules and had

surrendered the service benefits which had enured to him upon

his superannuation from army service. The competent

authority is stated to have accepted such surrender.

6. So far as the pension which was admissible to the

petitioner upon his retirement from the SSB is concerned, the

respondents have proceeded in the matter based on the option

which was exercised by the petitioner under Rule 19 (1)(b) of

the Central Civil Services Rules. So far as Rule 19 (1)(b) is

concerned, the same provided thus:-

"Rule 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, may, on his confirmation in a civil service or post, opt either-

(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:

Provided that-

(i) the pension drawn prior to the date of re-employment shall not be required to be refunded,

(ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on re-employment shall be refunded by him.

(iii) the element of pension equivalent of gratuity including the element of commuted part of pension, if any, which was taken into account for fixation of pay shall be set off against the amount of retirement gratuity and the commuted value of pension and the balance, if any, shall be refunded by him."

7. The petitioner‟s grievance however is that upon

exercising the option available to him under Rule 19 (1)(b) of

the Central Civil Services (Pension) Rules, the respondents

were liable to re-fix the pay of the petitioner as an

ex-serviceman in terms of the office memorandum dated 22nd

January, 1991 which has not been done so.

8. For the purpose of effective adjudication in the matter,

the instructions contained in office memorandum deserve to be

considered in extenso and the same reads as follow:-

"OFFICE MEMORANDUM

Subject : Re-fixation of pay on opting for combined service for pension

under Rule 18 & Rule 19 of CCS (Pension) Rules, 1972.

The undersigned is directed to say that as per Ministry of Finance O.M.No.8(32)Est./60 dated 18.7.60 and para 6 of this Department O.M. No.3/1/85- Estt.(Pay.II) dated 31.7.86, the pay of Government servants who are in receipt of compensation/invalid pension and re- employed in civil posts and who submit option for combined service for pension (under Rule 18 of CCS (Pension) Rules, 1972), is refixed from the date of re- employment in terms of relevant provisions of Ministry of Finance O.M.No.8(34)/E.III/57, dated 25.11.58 or this Department O.M. dated 31.7.86, as the case may be, by assuming that they are not in receipt of any pension.

2. However, at present there are no orders on refixation of pay of ex- servicemen who can similarly give an option for combined service for pension under Rule 19 of the CCS(Pension) Rules, 1972 by surrendering their pensionery benefits. This issue has been considered and it has been decided that pay of such ex-serviceman who were re-employed prioer to 1.7.86 and who being eligible, have opted for combined service for pension in terms of Rule 19 of CCS(Pension) Rules, 1972, shall also be refixed from the date of re-employment in terms of Ministry of Finance O.M. dated 25.11.1958, as amended from time to time, by assuming that there were not in receipt of any pension. In respect of ex-servicemen re- employed on or after 1.7.86, and who have similarly opted for combined service for pension under Rule 19 of CCS (Pension) Rules, pay shall be refixed from the date of re-employment in the manner given in para 15 of this Department O.M. dated 31.7.86 ibid. However, this refixation will be done only after the pensionary benefits have been refunded in full as per provision of Rule 19 ibid of CCS (Pension) Rules, 1972.

In so far as persons serving in the Indian Audit & Accounts Department are concerned, this issues in consultation with

the Comptroller & Auditor General of India.

Sd/-

(T.O. Thomas) UNDER SECRETARY TO THE GOVT. OF INDIA"

It is noteworthy that this office memorandum related

specifically to cases such as that of the petitioner who had

exercised option under Rule 19 (1)(b) of the Central Civil

Services Rules.

9. We find that the respondents have taken a stand that the

petitioner‟s pay was fixed in terms with the recommendations

of the 3rd and 4th Pay Commission and that there was no

provision for granting increments taking into consideration the

service rendered by the petitioner.

10. Perusal of the office memorandum dated 22nd January,

1991 shows that so far as the re-fixation of pay of the Ex-

serviceman who had exercised the option under Rule 19 (1)(b)

of the Central Civil Services (Pension) Rules, 1972 by

surrendering the pensionary benefits is concerned, it was liable

to be re-fixed from the date of re-employment in terms of the

office memorandum dated 25th November, 1958 issued by the

Ministry of Finance as was amended from time to time. For this

purpose, it was further mandated that the respondents were

required to assume that the re-employed ex-serviceman was

not in receipt of any pension.

11. The petitioner having been re-employed as an Ex-

serviceman with the SSB on 29th August, 1970, his pension

was, therefore, liable to be re-fixed in terms of the mandate of

the office memorandum dated 22nd January, 1991 and he would

be entitled to all benefits as could be admissible to him

thereunder.

12. As per the counter affidavit, the respondents have

considered the fixation of the petitioner‟s pension premised on

the recommendations of the 3rd and 4th Pay Commission which

admittedly came in effect on 1st January, 1986. There is

admittedly no consideration on the petitioner‟s pension re-

fixation in terms of the office memorandum dated 22nd January,

1991. There is, therefore, substance in the petitioner‟s

grievance in the present writ petition.

13. We may note an objection taken by Mr. Jatan Singh,

learned Standing Counsel for the Union of India that the prayer

of the petitioner before this court is grossly delayed and the

writ petition deserves to be thrown out on the ground of delays

and laches. We may notice that so far as the fixation of pay

and pension is concerned, it remains the duty of the employer

to fix the same correctly. No employee should be compelled to

approach the court for seeking its fixation.

14. The petitioner has also placed before this court the

rejection of the petitioner‟s representations by the respondents

as late as on 9th April, 1999 and 30th June, 1999.

It is noteworthy that pension is payable monthly. Wrong

fixation and payment of such wrongly fixed pension would give

a recurring and continuous cause of action to the retired

personnel. The petitioner having approached the respondents

for rederssal of his grievance, they were bound to have

considered the same as per the applicable rules and corrected

the position without requiring him to come to court.

15. Even otherwise, the petitioner retired only in the position

of a soldier. There would be several issues relating to

impediment to access to justice. Even otherwise, there is

nothing on record to show that the petitioner was possessed of

adequate means; that he was placed in such a position that he

could have come to court and deliberately chose not to do so.

16. We also find that this writ petition was filed in the year

2000 and has also remained pending in court for a long period

of 10 years. Other than taking the plea in the counter affidavit,

the respondents ever have not pressed the aforenoticed

objection.

For all these reasons, we find no substance in the

objection of the respondents.

In view of the above, we direct as follows:-

(i) The respondents shall consider the case of the

petitioner for re-fixation of his pension in terms of

the office memorandum dated 22nd January, 1991

and any other applicable rules and regulations

within a period of six weeks from today. The order

which is passed as well as computation of the

petitioner‟s pension on such re-fixation shall be

immediately communicated to the petitioner.

(ii) In case, the petitioner is still aggrieved by the order

which is passed by the respondents, it shall be open

to him to assail the same by any appropriate legal

remedy.

(iii) In case, the respondents find any amount is payable

to the petitioner upon such re-fixation, the same

shall be forthwith released to the petitioner, in any

case within a period of four weeks from the passing

of the order.

(iv) The petitioner shall be entitled to costs of the

present writ petition which are quantified at

Rs.10,000/-

Dasti to the parties.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 20, 2010/mk