Hari Raj Singh vs Union Of India & Ors

Rajnish Kumar Rai, Member (J)

The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of the impugned order dated 09.09.2011 and issuance of directions for counting of his past military service rendered from 05.12.1975 to 12.06.1983 towards qualifying service for civil pension, fixation of pay on re-employment w.e.f. 13.06.1983, and grant of consequential pensionary and other benefits after his retirement on 31.07.2013.The applicant seeks the following reliefs:-

“1. To consider for issuing orders or directions, in the nature of certiorari quashing the impugned order dated 09.09.2011 (Annex. A-1).

To consider for issuing orders or directions, in the nature of mandamus commanding the respondents to consider for counting the military service (05.12.1975 to 12.06.1983) and fixing the pay on re-employment on 13.06.1983 with consequential benefits till date including pensionary benefits after retirement from 31.07.2013 as per mandatory provisions of Rule. (Annex. A-2).

To consider any other relief which the Hon'ble Tribunal may deem fit in the facts and circumstances of the case.

To award the cost of the application throughout.”

The brief facts of the case are that the applicant was recruited in the Defence Services on 05.12.1975 and retired on 17.09.1982 after rendering 6 years and 9 months of military service. He was thereafter re-employed as Postal Assistant in Moradabad Division on 13.06.1983 and later transferred to Bijnor Division under Rule 38. It is stated that the applicant had exercised option for counting of his past military service at the time of re-employment and was always ready to refund the gratuity amount received from Defence authorities. However, his claim was rejected by the Superintendent of Post Offices, Bijnor, vide order dated 09.09.2011 on the ground of delay. The applicant contends that the rejection is arbitrary and contrary to Rule 19(2)(a) of CCS (Pension) Rules, 1972, as the appointing authority failed to obtain the option memo at the time of confirmation. Being aggrieved, the applicant has filed this Original Application.

Learned counsel for the applicant submitted that the applicant, being an Ex-Serviceman, had rendered 6 years and 9 months of military service from 05.12.1975 to 17.09.1982 and was thereafter re-employed as Postal Assistant on 13.06.1983. It was urged that under Rule 19(2)(a) of the CCS (Pension) Rules, 1972, the appointing authority was bound to obtain the option memo at the time of confirmation, but the same was not done, and despite the applicant having exercised the option within time and being ready to refund the gratuity amount of Rs. 3,999/- received from Defence authorities, his claim was arbitrarily rejected by order dated 09.09.2011. Counsel emphasized that the lapse was attributable to the respondents, not to the applicant, and that denial of counting of military service for pay fixation and pensionary benefits is illegal, arbitrary, and contrary to the mandatory provisions of law.

Learned counsel for the respondents submitted that the applicant never exercised the statutory option within the stipulated period of three months as mandated under Rule 19(2)(a) of the CCS (Pension) Rules, 1972. It was pointed out that the applicant was re-employed as Postal Assistant on 13.06.1983, yet no option was filed at the time of confirmation, and the first representation came only in November 1993, i.e., after about eleven years of service. The formal option was further submitted belatedly on 23.12.1996, which was highly time-barred. Counsel emphasized that under Rule 19(2)(b), in case no option is exercised within time, the Government servant is deemed to have opted for clause (a), thereby forfeiting the right to count military service. It was further argued that the claim had already been rejected earlier and O.A. No. 237 of 2010 was dismissed by this Tribunal on 18.02.2010, holding that stale claims cannot be revived by repeated representations. The subsequent O.A. No. 605 of 2011 was also disposed of with a direction to decide the representation, which was duly complied with by passing a reasoned and speaking order dated 09.09.2011. The respondents contended that the rejection was strictly in accordance with law, that the delay could not be condoned in view of binding rules, and that the applicant is himself responsible for not exercising the option within time; hence the present Original Application is devoid of merit and liable to be dismissed.

In counter affidavit filed on 26.03.2012, and in supplementary counter affidavit filed on 01.03.2013, learned counsel for the respondents submitted that the applicant did not exercise the statutory option within the prescribed period of three months under Rule 19(2)(a) of the CCS (Pension) Rules, 1972. It was pointed out that although he was re-employed as Postal Assistant on 13.06.1983, the first representation for counting of military service was moved only in November 1993, after about eleven years, and the formal option was submitted belatedly on 23.12.1996. In terms of Rule 19(2)(b), where no option is exercised within time, the Government servant is deemed to have opted for clause (a), thereby forfeiting the right to count military service. Counsel further emphasized that the claim had already been rejected earlier and O.A. No. 237 of 2010 was dismissed by this Tribunal on 18.02.2010, holding that stale claims cannot be revived by repeated representations. It was also submitted that O.A. No. 605 of 2011 was disposed of only with a direction to decide the representation, which was duly complied with by passing a reasoned order dated 09.09.2011. Thus, the rejection of the claim was strictly in accordance with law, and the present Original Application is devoid of merit.

In rejoinder affidavit filed on 06.08.2012, learned counsel for the applicant submitted that the rejection of claim on the ground of delay is misconceived, inasmuch as the applicant had exercised the option for counting of his past military service at the time of re-employment in 1983-84, and the same was duly intimated to the respondents. It was urged that when the department failed to trace the original option memo, the applicant resubmitted copies in 1993 and again in 1996, and the matter was thereafter referred by the Superintendent of Post Offices, Bijnor, to the Post Master General, Bareilly on 22.03.2001 for condonation of delay. Counsel emphasized that the lapse was attributable to the appointing authority which did not obtain the option at the time of confirmation on 13.06.1986, as required under Rule 19(2)(a) of the CCS (Pension) Rules, 1972. The rejoinder further pointed out that the applicant had already refunded or expressed readiness to refund the gratuity amount of about Rs. 4,000/- received from Defence authorities, and that he is not in receipt of any military pension. Reliance was also placed on the representation dated 11.11.2009 wherein the applicant reiterated his claim for counting of military service and fixation of pay, highlighting that any denial would cause irreparable loss to his pension on superannuation dated 31.07.2013. It was thus submitted that the impugned order dated 09.09.2011 is arbitrary, non-reasoned and contrary to facts on record, and the applicant is entitled to relief.

Heard Mr. R.K. Dixit, learned counsel for the applicant and Mr. K.K. Ojha, learned counsel for the respondents and perused the material on record.

From the statutory provisions themselves, it is clear that the obligation to invite option within time was mandatory. Rule 19(2)(a) of the CCS (Pension) Rules, 1972 specifically provides that the authority issuing the order of substantive appointment shall, along with such order, require in writing the Government servant to exercise the option within three months. Further, Rule 19(2)(b) stipulates that if no option is exercised within the prescribed period, the Government servant shall be deemed to have forfeited the right to count military service. The relevant portion of the rule, as produced in the record, is quoted below:-

“The authority issuing the order of substantive appointment to a civil service or post… shall along with such order require in writing the Government servant to exercise the option… within three months from the date of issue of such order… 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).”

Upon consideration of the rival submissions and scrutiny of the documents placed before us, it is evident from the departmental record that the Superintendent of Post Offices, Bijnor, by communication dated 22.03.2001, acknowledged that the option was not obtained within the stipulated period and that condonation of delay was required. The said communication is reproduced below for ready reference:-

“Since the official has not exercised option within the stipulated period as well as the appointing authority also failed to obtain his option within stipulated period, and as such delay for option is to be condoned by the Ministry of Home Affairs Department of Personnel Administration Reforms, as per instruction contained in DG Posts New Delhi letter No.3-9/79-dated 08.03.1982.”

On careful consideration of the pleadings and documents placed on record, it emerges that the applicant was re-employed as Postal Assistant on 13.06.1983 after rendering 6 years and 9 months of military service. The applicant asserts that he had exercised option in 1983-84 and resubmitted copies in 1993 and 1996, whereas the respondents maintain that no option was filed within the stipulated period. The record also shows that the departmental authorities themselves treated the matter as one requiring condonation of delay. Having regard to the fact that the claim relates to events of 1983-84, that the first effective representation was made only in 1993/1996, and that the matter has remained pending for decades, we are of the considered view that the claim has become stale and cannot be reopened at this stage. In line with the dictum of the Hon’ble Supreme Court in C. Jacob v. Director of Geology & Mining (2008 (7) SCC 331), stale claims cannot be revived by repeated representations.

We have considered the earlier order dated 18.02.2010 passed in O.A. No. 237 of 2010, wherein the identical relief was sought by the applicant for counting of his past military service towards civil pension. The said Original Application was dismissed by this Tribunal holding that the claim was stale and not maintainable. Subsequently, the applicant again filed O.A. No. 605 of 2011 seeking similar relief, which was disposed of only with a direction to decide his representation. In compliance thereof, the respondents passed a reasoned order dated 09.09.2011 rejecting the claim. Despite this, the applicant has once again approached this Tribunal by filing the present O.A. seeking the same relief which already stood dismissed vide order dated 18.02.2010. Therefore, at this stage, this Tribunal does not find any ground to reconsider the grievance which has already been adjudicated and rejected earlier.

The relief claimed by the applicant relates to the service rendered by him in the Army from 05.12.1975 to 12.06.1983, which he seeks to be counted towards qualifying service for civil pension. The statutory position under Rule 19(2)(a) and (b) of the CCS (Pension) Rules, 1972 is very clear that the appointing authority was required to invite option within three months of appointment, and in case no option was exercised within the stipulated period, the Government servant is deemed to have forfeited the right to count military service. The departmental communication dated 22.03.2001 from the Superintendent of Post Offices, Bijnor to the Post Master General, Bareilly itself records that the applicant did not exercise option within time and the appointing authority also failed to obtain it, and therefore condonation of delay was required. Having regard to the fact that the claim pertains to events of 1983-84, that the first effective representation was made only in 1993/1996, and that the matter has remained pending for decades, we are of the considered view that the claim is hopelessly time-barred. In line with the dictum of the Hon’ble Supreme Court in C.Jacob v. Director of Geology & Mining (2008 (7) SCC 331), stale claims cannot be revived by repeated representations.

In view of the foregoing discussion and findings recorded hereinabove, we hold that the applicant has failed to establish any enforceable right for counting of his past military service towards civil pension. The statutory provisions as well as the departmental communication clearly demonstrate that the option was not exercised within the prescribed period and the claim is hopelessly time-barred.

Accordingly, the Original Application stands dismissed. No order as to costs.

All pending Miscellaneous Applications, if any, stand disposed of.