Delhi High Court
Rasil Chand vs The Union Of India And Ors on 19 November, 2012
Author: Gita Mittal
12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1292/2012
% Date of decision: 19th November, 2012
RASIL CHAND ..... Petitioner
Through Mr. H.S. Kathuria, Adv.
versus
THE UNION OF INDIA AND ORS ..... Respondents
Through Ms. Barkha Babbar, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
GITA MITTAL, J. (Oral)
1. The petitioner had served with Indian Army w.e.f. 13th
September, 1969 to 1st October, 1993, rendering 24 years and 7
days service from the discharge book issued to him by the
respondents. It is undisputed that the petitioner has been receiving
his pensionary benefits which included service, gratuity, etc. from
the Army and has been regularly drawing his monthly pension
from the Army.
2. The petitioner was re-employed with CISF on 5th August,
1996. During this re-employment, after having rendered 11 years 5
months and 27 days of service, the petitioner submitted an
application dated 10th October, 2007 seeking voluntary retirement
from service in the CISF w.e.f. 31st January, 2008. This request
was erroneously favourably considered by the respondents
resulting in issuance of an order dated 16th October, 2007
provisionally accepting the request for voluntary retirement of the
petitioner w.e.f. 31st January, 2008 in accordance with the
provisions of Rule 48A of the CCS Pension Rules, 1972. It was
noticed subsequently that petitioner's request for voluntary
retirement could be accepted only after completion of twenty years
of qualifying service which fell on 30th April, 2012 and the order
dated 16th October, 2007 was cancelled.
3. While rejecting the petitioner's representation by the order
dated 18th/19th October, 2007, the respondents have pointed out that
in terms of Rule 48A of the CCS Pension Rules, 1972, a Govt.
servant could retire voluntarily from service only after completion
of 20 years of qualifying service. As the petitioner had not
completed this period, the earlier order of October, 2007 was
treated as cancelled. Vide the order dated 17th March, 2008, the
petitioner was further informed that in case he was not in a position
to serve in the CISF, he could submit his resignation, w.e.f. 31st
January, 2008. The petitioner accepted this position and thereafter,
moved an application dated 20th March, 2008 seeking to resign
from service with the CISF on account of domestic problems w.e.f.
31st March, 2008. This resignation of the petitioner was accepted
by the competent authority vide an order dated 24th March, 2008
w.e.f. 31st January, 2008. Upon resignation of the petitioner, all his
final payments were duly settled by the respondents.
4. The petitioner has filed the instant writ petition contending
that in terms of Rule 35 of the CCS Pension Rules, 1972, the
petitioner having rendered more than 10 years of service was
entitled to pension from the CISF which has been wrongly denied
to him and a challenge has been laid to the order dated 28 th
January, 2011 passed by the respondents denying the petitioner's
request to grant the pension.
5. The respondents have, however, pointed out that at the time
the petitioner sought re-employment in CISF, in accordance with
Rule 19 of the CCS Pension Rules, the petitioner had exercised the
option of not taking into account his past military service as
reckonable service for the purposes of his pension computation. It
is pointed out that for this reason the petitioner has continued to
accept the pension which he was receiving from the Army
Authorities. As per the applicable rules, the petitioner could have
made such request for change of the option at any time while he
remained employed with the CISF for the period of 11 years. But
he did not do so.
6. The respondents rely on Rule 19 of the CCS Pension Rules
in terms whereof the petitioner duly exercised the option in 1994
which has been placed by the respondent before us which 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
superannuation and who, before such re-employment,
had rendered military service, 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 services 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:
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.
EXPLANATION.- In this clause, the expression
‗which was taken into account' means the amount of
pension including the pension equivalent of gratuity
by which the pay of the Government servant was
reduced on initial re-employment, and the expression
‗which was not taken into account' shall be construed
accordingly.‖
7. The above factual and rule position would show that the
petitioner having exercised the option at the time of his re-
employment with the CISF and having not sought any change with
regard to the same at any time while he remained in service, is
disentitled to draw any pension from his service upon re-
employment with the CISF.
In view of the above, the petitioner cannot claim entitlement
to pension on the basis of the service rendered by him on re-
employment with CISF.
This writ petition is devoid of merits and is, therefore,
dismissed.
GITA MITTAL, J
J.R. MIDHA, J
NOVEMBER 19, 2012
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