Anil Kumar vs Union Of India And Ors

The applicant joined Indian Air Force on 21.05.1996. He applied and was permitted by the Competent Authority to appear in Combined Graduate Level Examination, 2004 conducted by Staff Selection Commission. He was selected for the post of Central Excise & Customs Inspector where he joined on 29.03.2007. After joining the Central Excise Department, the applicant requested the respondents on 04.02.2010 to count his previous service in Indian Air Force for the purpose of pensionary benefits including grant of benefit of Old Pension Scheme. The applicant also sent a reminder dated 19.01.2011, in response to which the respondents asked him (vide letter dated 10.08.2011) to provide a discharge order from Indian Air Force. The applicant provided the said discharge order dated 25.04.2007 along with another representation dated 02.01.2014 to the respondents, stating that in the Defence Services there is no provision of Technical Resignation and discharge order is treated as Technical Resignation for all purposes.

The applicant contends that similarly placed persons, who were serving in departments having provision of pension, were already covered under the old pension scheme. Hence, he is also entitled for similar benefit under the Old Pension Scheme. The applicant has mentioned that similarly placed LDCs/Teachers etc. filed OA Nos. 183/2009, 3719/2009, 1795/2011 and 2045/2010, which were allowed with directions to the respondents to fix their seniority w.e.f. the dates their batch-mates came to be appointed with benefits of pay fixation and Old Pension Scheme.

The applicant filed OA-4213/2015 before the Principal Bench of Central Administrative Tribunal, which was disposed off on 26.11.2015 with directions to the respondents to consider the case of the applicant as made out in representation dated 02.01.2014 by passing a reasoned and speaking order. The respondents without application of mind and by misreading the O.M. dated 26.02.1988 and Rule-9 of CCS (Pension) Rules, 1972 arbitrarily rejected the claim of the applicant vide impugned order dated 22.03.2016.

The applicant has relied on the decisions of Hon'ble Supreme Court in the case of Inder Pal Yadav Vs. Union of India, 1985(2)SLR 248 and J.C. Sharma Vs. Union of India, 1997(3) R.S.J page 606 in which it has been laid down that the Government as a model employer should extend the benefit of a judgment rendered in the case of similarly situated persons before forcing each and every employee to approach the Court of law.

Aggrieved by the action of the respondents, the applicant has filed the current O.A. seeking the following reliefs:-

"(a) To quash and set aside the impugned order dated 22.03.2016(A-1) and direct the respondents to count the past service rendered in IAF by applicant for grant of pension and other pensionary benefits under CCS (Pension) Rules 1972.

(b) To declare the action of respondents in not counting the past service rendered by applicant in Indian Air Force from 1996 till 2007 for the purpose of grant of pension and related pensionary benefits to applicant and thereby denying benefits of Old Pension Scheme as illegal and issue directions for counting the past service in IAF for grant of pension and other pensionary benefits under CCS (Pension) Rules 1972.

(c) To direct the respondents to count the past service of applicant from 1996 till the date of discharge for the purpose of pension and other pensionary benefits.

(d) To allow the OA with cost.

(e) To pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case."

Per contra, the respondents in their counter reply, submit that the applicant, after joining the post of Inspector, Central Excise requested the department for counting of his previous service for gratuity, GPF and pension etc. (for the first time) only on 04.02.2010. Thereafter, he filed a representation on 02.01.2014, and simultaneously approached the Tribunal in OA-4213/2015. The same was disposed of at the admission stage on 26.11.2015 with the directions that the department should consider his representation dated 02.01.2014 by passing a reasoned and speaking order.

6.1 The respondents aver that according to Government of India's decision regarding re-employed military pensioners under Rule-19(1) of the CCS (Pension) Rules, 1972 a Government servant, who is re-employed in a civil service or post is required to give an option at the time of his confirmation in the civil post whether he would like to get his past military service counted for pension in the civil post or service. The refund of pension, gratuity etc. already drawn by such government servants from the military authorities shall be refunded to the Government with interest from the date of their joining the civil service. The clarification regarding benefit of counting of past service under Rule 19 available to ex-serviceman re-employed in civil service/post is available on website - www.pensionersportal.gov.in/FAO civil.pdf as under:-

"An ex-serviceman re-employed to the civil post/service on or before 31/12/2003 is covered under the CCS (Pension) Rules, 1972. Therefore, the benefit of Rule 19 also becomes automatically available to him. An ex-serviceman re-employed in civil service on or after 1/1/2004 is covered by the New Pension Scheme and is not covered under the CCS (Pension) Rules, 1972. Therefore, the benefit of Rule 19 is not available to the ex-serviceman on re-employment on or after 1/1/2004."

6.2 The respondents state that the reliance placed by the applicant on the decisions of the Tribunal in OA Nos. 183/2009, 3719/2009, 1795/2011 and 2045/2010 is not relevant to the case in hand since the facts there were totally different. It is contended that since there is no fresh entry into old pension scheme after 31.12.2003, the matter of counting the past service of the applicant for pensionary benefits under the Old Pension Scheme has no substance.

I have gone through the facts of the case and carefully considered the rival submissions made by both sides in writing as well as during the course of oral hearing on 24.07.2018.

7.1 The applicant's request is twofold - firstly, that his past service, which he rendered in the Indian Air Force from 1996 till the date of discharge (April, 2007) should be counted by the respondents for the purpose of pension and other pensionary benefits. Secondly, that he should be granted the benefits of Old Pension Scheme under CCS (Pension) Rules 1972.

7.2 It is not disputed by the respondents that the applicant was discharged from the service of Indian Air Force after serving there from 21.05.1996 to 25.04.2007 to enable him to join the Central Excise Department, as Inspector. The respondents have rejected the prayer of the applicant for counting his previous service rendered in Indian Air Force for the purpose of gratuity, pension etc. vide their order dated 22.03.2016 on the ground that the applicant was to exercise his option under Rule-19 (1) of CCS (Pension) Rules, 1972 for counting of his past service within a period of one year from the date of his joining the civil service. Though the applicant joined Central Excise Department on 29.03.2007, his request for counting of previous service was made only on 04.02.2010 i.e. after a lapse of two years and nine months. The respondents in the impugned order state that CCS (Pension) Rules, 1972 do not provide for any relaxation in the above time period. Since the applicant had not exercised this option (under Rule-19 of CCS (Pension) Rules, 1972) within the laid down time frame under Rule-19(2)(b) of CCS (Pension) Rules, 1972, his case would come (under Rule-19(1)(a) of the deeming clause. They have thus rejected his case for counting his previous service in Indian Air Force, for the purpose of grant of pensionary benefits etc.

During the course of hearing, learned counsel for the applicant Sh. M.K. Bhardwaj vehemently argued that the applicant was not aware that he had to opt for getting his past service counted (within 1 year) nor was such an option ever asked for by the respondents at the time of his appointment. He drew my attention to Rule-19(2)(a), which stipulates that:-

"The authority issuing the order of substantive appointment to a civil service or post as is referred to in sub-rule(1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of date of issue of such order, if he is on leave on that day, within three months of his return from leave, whichever is later and also bring to his notice the provisions of Clause(b)."

8.1 Sh. Bhardwaj submitted that it was incumbent upon the respondents, while issuing the order of appointment, to have asked the applicant to exercise the option (of counting his past service for pensionary benefits), which was not done by them. The applicant being unaware of the rules and the time limit for exercising the option represented only on 04.02.2010 when he became aware that he was required to do so. The learned counsel further averred that this question of law has been examined in OA-3160/2015 with OA-3162/2015 and the applicants therein were allowed to count their past service for the purpose of pension on re-employment.

8.2 Rebutting these arguments forcefully, the learned counsel for the respondents Sh. Gyanendra Singh argued that the applicant requested the department for counting of his previous service for pensionary benefits much later though joined the respondents department on 29.03.2007. He again reiterated that an ex-serviceman, who is re-employed on a civil post is required to give option on joining whether he would like to get his past military service counted for benefit of pension etc. and is required to refund the amount of gratuity, pension etc. with interest to the Government already drawn from the military authorities. Sh. Singh informed the Bench that the applicant had received gratuity from his earlier employer which has not been refunded to the Government (along with interest). He also drew my attention to the clarification governing such cases, ref. to in para-6.1 above.

It is not disputed that the service rendered by the applicant in the Indian Air Force was non-pensionable. I also observe that the applicant has adhered to all the necessary procedural requirements, starting from obtaining permission for taking the exam till furnishing the necessary discharge order etc. from his earlier employer. Though the applicant did not exercise his option to get his past service counted within 01 year of his joining the civil service, but the respondents too have overlooked to ask the applicant about whether or not, he wanted to exercise the option of getting his past service counted, as they were required to do, at the time of issuing the appointment. The applicant's service of more than a decade in the Indian Air Force cannot be brushed away summarily, merely on this procedural ground alone. It has also been mentioned by the applicant that some of the persons, similarly placed like the applicant, have been allowed to count their past service, for the purpose of pension. Therefore, in my view, the applicant in the present case also is liable to be granted the same benefits.

9.1 As far as the second request of the applicant regarding grant of benefit under the Old Pension Scheme is concerned, the same has to be viewed in terms of specific clarification provided on the website-www.pensionersportal.gov.in/FAO civil.pdf, (referred to in para-6.1 above) which stipulates that an ex-serviceman re-employed in civil service on or after 01.01.2004 is covered by the New Pension Scheme and is not covered under the CCS (Pension) Rules, 1972. Hence, the applicant, who joined the Central Excise Department in 2007 will clearly come under the New Pension Scheme, which came into existence w.e.f. 01.01.2004.

9.2 The respondents in their counter have cited a case pertaining to counting of military service for the purpose of pensionary benefits, which came up before the Railways wherein it was held that:-

"All the fresh appointees joining on or after 1.1.04 will be inducted into New Pension Scheme as per orders of Department of Economic Affairs. Rule No.19 of CCS (Pension) Rules 1972 which corresponds to Rule No.34 of Railway Service (Pension) Rules, 1983, is not applicable to the fresh employees appointed on or after 1.1.04. Accordingly, the military personnel who have been reemployed in civil or railway service on or after 1.1.04 will have no connection with CCS (Pension) Rules, 1972/Railway Service (Pension) Rules, 1993 and are required to be inducted into the New Pension Scheme."

In view of the aforesaid discussions and facts, impugned order dated 22.03.2016 is quashed and set aside. This O.A. is partially allowed with the following directions:-

(i) The respondents are directed to count the past service rendered by the applicant in Indian Air Force with all consequential benefits including fixation of pension etc.

(ii) Since the applicant joined the civil service on re-employment from Indian Air Force, after 01.01.2004, he will be governed by the New Pension Scheme and the provisions of the Old Pension Scheme will not be applicable to him.

(iii) It is mentioned in the impugned order dated 22.03.2016 that the applicant had received the gratuity at the time of discharge from Indian Air Force, which is yet to be refunded to the Government as required under the Rules. The applicant is directed to refund the same with interest from his date of joining the civil post on 29.03.2007.

No costs.

The applicant joined Indian Air Force on 21.05.1996. He applied and was permitted by the Competent Authority to appear in Combined Graduate Level Examination, 2004 conducted by Staff Selection Commission. He was selected for the post of Central Excise

& Customs Inspector where he joined on 29.03.2007. After joining the Central Excise Department, the applicant requested the respondents on 04.02.2010 to count his previous service in Indian Air Force for the purpose of pensionary benefits including grant of benefit of Old Pension Scheme. The applicant also sent a reminder dated 19.01.2011, in response to which the respondents asked him (vide letter dated 10.08.2011) to provide a discharge order from Indian Air Force. The applicant provided the said discharge order dated 25.04.2007 along with another representation dated 02.01.2014 to the respondents, stating that in the Defence Services there is no provision of Technical Resignation and discharge order is treated as Technical Resignation for all purposes.

The applicant contends that similarly placed persons, who were serving in departments having provision of pension, were already covered under the old pension scheme. Hence, he is also entitled for similar benefit under the Old Pension Scheme. The applicant has mentioned that similarly placed LDCs/Teachers etc. filed OA Nos. 183/2009, 3719/2009, 1795/2011 and 2045/2010, which

were allowed with directions to the respondents to fix their seniority w.e.f. the dates their batch-mates came to be appointed with benefits of pay fixation and Old Pension Scheme.

The applicant filed OA-4213/2015 before the Principal Bench of Central Administrative Tribunal, which was disposed off on 26.11.2015 with directions to the respondents to consider the case of the applicant as made out in representation dated 02.01.2014 by passing a reasoned and speaking order. The respondents without application of mind and by misreading the O.M. dated 26.02.1988 and Rule-9 of CCS (Pension) Rules, 1972 arbitrarily rejected the claim of the applicant vide impugned order dated 22.03.2016.

The applicant has relied on the decisions of Hon'ble Supreme

Court in the case of Inder Pal Yadav Vs. Union of India, 1985(2)SLR 248 and J.C. Sharma Vs. Union of India, 1997(3) R.S.J page 606 in which it has been laid down that the Government as a model employer should extend the benefit of a judgment rendered in the case of similarly situated persons before forcing each and every employee to approach the Court of law.

Aggrieved by the action of the respondents, the applicant has filed the current O.A. seeking the following reliefs:-

"(a)  To  quash  and  set  aside  the  impugned  order  dated 22.03.2016(A-1) and direct the respondents to count the past

service rendered in IAF by applicant for grant of pension and other pensionary benefits under CCS (Pension) Rules 1972.

(b) To declare the action of respondents in not counting the past service rendered by applicant in Indian Air Force from 1996 till

2007 for the purpose of grant of pension and related pensionary benefits to applicant and thereby denying benefits of Old Pension Scheme as illegal and issue directions for counting the past service in IAF for grant of pension and other pensionary benefits under CCS (Pension) Rules 1972.

(c) To direct the respondents to count the past service of applicant from 1996 till the date of discharge for the purpose of pension and other pensionary benefits.

(d) To allow the OA with cost.

(e) To pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case."

Per contra, the respondents in their counter reply, submit that the applicant, after joining the post of Inspector, Central Excise requested the department for counting of his previous service for gratuity, GPF and pension etc. (for the first time) only on 04.02.2010. Thereafter, he filed a representation on 02.01.2014, and simultaneously approached the Tribunal in OA-4213/2015. The same was disposed of at the admission stage on 26.11.2015 with the directions that the department should consider his representation dated 02.01.2014 by passing a reasoned and speaking order.

6.1 The respondents aver that according to Government of India's decision regarding re-employed military pensioners under Rule-19(1) of the CCS (Pension) Rules, 1972 a Government servant, who is re-employed in a civil service or post is required to give an option at the

time of his confirmation in the civil post whether he would like to get his past military service counted for pension in the civil post or service. The refund of pension, gratuity etc. already drawn by such government servants from the military authorities shall be refunded to the Government with interest from the date of their joining the civil service. The clarification regarding benefit of counting of past service under Rule 19 available to ex-serviceman re-employed in civil

service/post is available on website - www.pensionersportal.gov.in/FAO civil.pdf as under:-

"An ex-serviceman re-employed to the civil post/service on or before 31/12/2003 is covered under the CCS (Pension) Rules, 1972. Therefore, the benefit of Rule 19 also becomes automatically available to him. An ex-serviceman re-employed in civil service on or after 1/1/2004 is covered by the New Pension Scheme and is not covered under the CCS (Pension) Rules, 1972. Therefore, the benefit of Rule 19 is not available to the ex-serviceman on re-employment on or after 1/1/2004."

6.2 The respondents state that the reliance placed by the applicant on the decisions of the Tribunal in OA Nos. 183/2009, 3719/2009, 1795/2011 and 2045/2010 is not relevant to the case in hand since the facts there were totally different. It is contended that since there is no fresh entry into old pension scheme after 31.12.2003, the matter of counting the past service of the applicant for pensionary benefits under the Old Pension Scheme has no substance.

I have gone through the facts of the case and carefully considered the rival submissions made by both sides in writing as well as during the course of oral hearing on 24.07.2018.

7.1 The applicant's request is twofold - firstly, that his past service, which he rendered in the Indian Air Force from 1996 till the date of discharge (April, 2007) should be counted by the respondents for the purpose of pension and other pensionary benefits. Secondly, that he should be granted the benefits of Old Pension Scheme under CCS (Pension) Rules 1972.

7.2 It is not disputed by the respondents that the applicant was discharged from the service of Indian Air Force after serving there from 21.05.1996 to 25.04.2007 to enable him to join the Central Excise Department, as Inspector. The respondents have rejected the prayer of the applicant for counting his previous service rendered in Indian Air Force for the purpose of gratuity, pension etc. vide their order dated 22.03.2016 on the ground that the applicant was to exercise his option under Rule-19 (1) of CCS (Pension) Rules, 1972 for counting of his past service within a period of one year from the date of his joining the civil service. Though the applicant joined Central Excise Department on 29.03.2007, his request for counting of previous service was made only on 04.02.2010 i.e. after a lapse of two years and nine months. The respondents in the impugned order state that

CCS (Pension) Rules, 1972 do not provide for any relaxation in the above time period. Since the applicant had not exercised this option (under Rule-19 of CCS (Pension) Rules, 1972) within the laid down time frame under Rule-19(2)(b) of CCS (Pension) Rules, 1972, his case would come (under Rule-19(1)(a) of the deeming clause. They have thus rejected his case for counting his previous service in Indian Air Force, for the purpose of grant of pensionary benefits etc.

During the course of hearing, learned counsel for the applicant Sh. M.K. Bhardwaj vehemently argued that the applicant was not aware that he had to opt for getting his past service counted (within

1 year) nor was such an option ever asked for by the respondents at the time of his appointment. He drew my attention to Rule-19(2)(a), which stipulates that:-

"The authority issuing the order of substantive appointment to a civil service or post as is referred to in sub-rule(1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of date of issue of such order, if he is on leave on that day, within three months of his return from leave, whichever is later and also bring to his notice the provisions of Clause(b)."

8.1 Sh. Bhardwaj submitted that it was incumbent upon the respondents, while issuing the order of appointment, to have asked the applicant to exercise the option (of counting his past service for pensionary benefits), which was not done by them. The applicant being unaware of the rules and the time limit for exercising the option represented only on 04.02.2010 when he became aware that

he was required to do so. The learned counsel further averred that this question of law has been examined in OA-3160/2015 with OA-3162/2015 and the applicants therein were allowed to count their past service for the purpose of pension on re-employment.

8.2 Rebutting these arguments forcefully, the learned counsel for the respondents Sh. Gyanendra Singh argued that the applicant requested the department for counting of his previous service for pensionary benefits much later though joined the respondents department on 29.03.2007. He again reiterated that an ex-serviceman, who is re-employed on a civil post is required to give option on joining whether he would like to get his past military service counted for benefit of pension etc. and is required to refund the amount of gratuity, pension etc. with interest to the Government already drawn from the military authorities. Sh. Singh informed the Bench that the applicant had received gratuity from his earlier employer which has not been refunded to the Government (along with interest). He also drew my attention to the clarification governing such cases, ref. to in para-6.1 above.

It is not disputed that the service rendered by the applicant in the Indian Air Force was non-pensionable. I also observe that the applicant has adhered to all the necessary procedural requirements, starting from obtaining permission for taking the exam till furnishing

the necessary discharge order etc. from his earlier employer. Though the applicant did not exercise his option to get his past service counted within 01 year of his joining the civil service, but the respondents too have overlooked to ask the applicant about whether or not, he wanted to exercise the option of getting his past service counted, as they were required to do, at the time of issuing the appointment. The applicant's service of more than a decade in the Indian Air Force cannot be brushed away summarily, merely on this procedural ground alone. It has also been mentioned by the applicant that some of the persons, similarly placed like the applicant, have been allowed to count their past service, for the purpose of pension. Therefore, in my view, the applicant in the present case also is liable to be granted the same benefits.

9.1 As far as the second request of the applicant regarding grant of benefit under the Old Pension Scheme is concerned, the same has to be viewed in terms of specific clarification provided on the website-www.pensionersportal.gov.in/FAO civil.pdf, (referred to in para-6.1 above) which stipulates that an ex-serviceman re-employed in civil service on or after 01.01.2004 is covered by the New Pension Scheme and is not covered under the CCS (Pension) Rules, 1972. Hence, the applicant, who joined the Central Excise Department in 2007 will clearly come under the New Pension Scheme, which came into existence w.e.f. 01.01.2004.

9.2 The respondents in their counter have cited a case pertaining to counting of military service for the purpose of pensionary benefits, which came up before the Railways wherein it was held that:-

"All the fresh appointees joining on or after 1.1.04 will be inducted into New Pension Scheme as per orders of Department of Economic Affairs. Rule No.19 of CCS (Pension) Rules 1972 which corresponds to Rule No.34 of Railway Service (Pension) Rules, 1983, is not applicable to the fresh employees appointed on or after 1.1.04. Accordingly, the military personnel who have been reemployed in civil or railway service on or after 1.1.04 will have no connection with CCS (Pension) Rules, 1972/Railway Service (Pension) Rules, 1993 and are required to be inducted into the New Pension Scheme."

In view of the aforesaid discussions and facts, impugned order dated 22.03.2016 is quashed and set aside. This O.A. is partially allowed with the following directions:-

(i) The respondents are directed to count the past service rendered by the applicant in Indian Air Force with all consequential benefits including fixation of pension etc.

(ii) Since the applicant joined the civil service on re-employment from Indian Air Force, after 01.01.2004, he will be governed by the New Pension Scheme and the provisions of the Old Pension Scheme will not be applicable to him.

(iii) It is mentioned in the impugned order dated 22.03.2016 that the applicant had received the gratuity at the time of discharge from Indian Air Force, which is yet to be refunded to the Government as required under the Rules. The applicant is

directed to refund the same with interest from his date of joining the civil post on 29.03.2007.

No costs.