Ravinder Kumar Barwal vs State Of Himachal Pradesh And Others

Sabina, J

Appellant has filed this Letters Patent Appeal, challenging the order dated 22.03.2021, passed by the learned Single Judge in CWP No.1803 of 2020.

Appellant had served in Indian Air Force and had retired from service on 10.09.1997. Thereafter, the appellant had applied for the post of Assistant District Attorney in the Department of Prosecution against the vacancy reserved for Ex-serviceman and was selected as such in the year 2001. Admittedly, the appellant had exercised an option under Rule 19(1)(b) of the CCS (Pension) Rules, 1972 (hereinafter referred to as the 'Rules' in short), that the appellant's previous military service be counted as qualifying service for the purpose of retirement benefits. A perusal of Annexure A-3, reveals that a letter dated 25.09.2003 had been written by the appellant to the Director of Prosecution, Shimla, stating therein that he had deposited the whole amount which had been received by him on retirement from military service and thereafter, with interest up to 31.05.2003. As per the said communication, the appellant, in all, had deposited Rs.2,99,118/- and it was requested by the appellant that the said fact may be recorded in his service record.

A perusal of Annexure P-3, dated 08.03.2004 (attached to the writ petition), reveals that the Accounts Office had duly acknowledged the payment of said amount made by the petitioner-appellant. On recalculation of the interest on refund of pensionary benefits, i.e. Death-cum-Retirement Gratuity and commuted pension received and refunded/deposited by the appellant, it was found that there was a difference of Rs.8,430/-. The said communication, dated 26.09.2020, has been placed on record as Annexure R-4 with the reply filed to the writ petition by the respondents-State. Vide Annexure R-5, annexed with the reply to the writ petition filed by the respondents-State, it was found that the appellant was required to deposit the amount with 6% simple interest and was required to pay Rs.5,150/- by way of first installment and remaining nineteen installments at the rate of Rs.5,147/- per month. It was also informed that after the recovery of the aforesaid amount, including interest, the military service rendered by the petitioner-appellant, would be counted for pension and other benefits in civil services. The said communication is dated 27.05.2003.

The appellant-petitioner, instead of depositing the amount liable to be recovered from him, requested the respondents that he may be permitted to withdraw the option exercised by him at the time of joining the post of Assistant District Attorney. One such representation has been placed on record as Annexure A-5, dated 10.11.2010. A perusal of the same, reveals that appellant had been re-employed as Assistant District Attorney in December, 2001 and had submitted an option under Rule 19(1) of the Rules for counting his qualifying military service rendered by him in the Indian Air Force for the purpose of retirement benefits. Vide letter dated 04.10.2002 appellant had deposited Rs.2,99,118/- through different vouchers in the year 2003. The appellant prayed that his option under Rule 19(1) of the Rules may be considered as withdrawn as the same has not been accepted by the respondents and the amount of Rs.2,99,118/-deposited by him be refunded to him.

The question that was required to be adjudicated in the writ petition was as to whether the option once exercised in terms of Rule 19 of the Rules, to count past military service, could be withdrawn at a subsequent stage.

Mr. Bimal Gupta, learned Senior Counsel, assisted by Mr. Hardeep Verma, has submitted that the learned Single Judge has erred in dismissing the writ petition on the ground of delay. In fact, after the last communication, dated 10.08.20218, Annexure P-13 (annexed with the writ petition), received by the appellant, whereby his representation for withdrawal of option exercised under Rule 19(1) of CCS (Pension) Rules, 1972 was rejected by the respondents, the appellant had immediately approached this Court. Therefore, the writ petition filed by the petitioner-appellant in the year 2020, could not have been dismissed on the ground of delay.

Ms. Seema Sharma, learned Deputy Advocate General, has submitted that the writ petition filed by the petitioner-appellant was liable to be dismissed as he had exercised his option under Rule 19 Clause 1 of the Rules in the year 2002, but had sought to withdraw the same for the first time in the year 2012. Hence, the writ petition filed by the appellant-petitioner had been rightly dismissed by the learned Single Judge on the ground of delay and latches.

In the present case, the facts are not in dispute. Admittedly, the appellant was working with Indian Air Force and had been re-employed as Assistant District Attorney in the Department of Prosecution, in the year 2001. At that time, the appellant had exercised his option under Rule 19 Clause 1 of the Rules. Rule 19 of CCS (Pension) Rules, 1972, is reproduced herein below:-

"19(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.

(2)(a) 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).

(b) 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).

(3)(a) A Government servant, who opts for Clause (b) of sub-rule (1) shall be required to refund the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, the first instalment beginning from the month following the month in which he exercised the option.

(b) The right to count previous service as qualifying service shall not revive until the whole amount has been refunded.

(4) In case of a government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the death gratuity which may become payable to his family.

(5) When an order is passed under this rule allowing previous military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the military and civil services."

A perusal of the above Rule, reveals that a Government servant, who is re-employed in the civil service or post before attaining the age of superannuation, can exercise an option to either continue to draw the military pension or retain gratuity received on discharge from military service and in that case his former military service shall not count as qualifying service for benefits in civil post.

It was the case of the appellant/petitioner before the learned Single Judge that the option exercised by the appellant in terms of Rule 19 of the Rules, had never been accepted by the respondents. Therefore, the same could be termed to have been withdrawn. This argument raised by the appellant was rightly rejected by the learned Single Judge, as the appellant had deposited a sum of Rs.2,99,118/- on account of military pension drawn by him. Rather, there arose a dispute with regard to the calculations furnished by the appellant and the respondents asking the appellant to deposit the due amount and the said fact, leads to the inference that the option submitted by the appellant had been duly accepted by the respondents.

The appellant instead of depositing the amount of Rs.20,000/-, demanded by the respondents, vide letter dated 10.11.2011, filed the representation with the prayer that he may be permitted to withdraw his option exercised by him under Rule 19 of CCS (Pension) Rules, 1972. The representation dated 07.06.2011, regarding withdrawal of option under Rule 19(1) of the Rules filed by the appellant, was disposed of by the respondents vide order dated 09/10.07.2012, Annexure A-7, and the relevant portion of said communication reads as under:-

"Reference your representation No.128 dated 7.6.2011 regarding withdrawal of option under Rule 19(1) of CCS (Pension) Rules, 1972 for counting of qualifying service for the purpose of pensionary benefits.

In this regard, the matter was taken up with the Government and vide letter No.Home(Prose)-B(3)-3/2001 dt. 3 July 2012 (Photocopy enclosed), it has been conveyed that since you have already exercised option to count your past military service under Rule 19)(1) of CCS (Pension) Rules, 1972 as such option once exercised has attained finality and same can not be withdrawn at this stage after a lapse of about ten years and it has been requested to take necessary action to recover the balance amount from you and to send the matter regarding counting of past military service to the Government.

You are, therefore, directed to pay the balance amount as per the Government communication referred to above."

Thus, the representation submitted by the appellant to withdraw the option submitted by him under Rule 19 (1) of the Rules was dismissed on the ground that it had been submitted after a lapse of 10 years and as per Rule 19(1) of the Rules, the option once exercised by the appellant had attained finality. Thereafter, the appellant moved another representation and the same was also rejected vide order dated 10.08.2018, Annexure P-13 (annexed with the writ petition). The relevant portion of the said rejection order reads as under:-

"It is brought to your kind notice that the matter was taken up with Administrative Department as per your request submitted to this office on 20.2.2018 vide this office letter No.1728 dated 27.2.2018.

The Deputy Secretary (Home) to the Govt. of H.P. has informed vide letter No.Home(P)(B)(3)-3/2001 dated 1.8.2018 informing that the matter was taken up with Finance (Pension) who has reiterated their earlier advice and the same was earlier conveyed. Hence, the photocopies of said letter dated 1.8.2018 alongwith earlier letters dated 3.7.2012 & 31.8.2013 are enclosed herewith for information please."

The learned Single Judge has rightly held that the fact that the last representation filed by the appellant had been rejected in the year 2018, would not extend the period of limitation, as the claim of the appellant was for the first time rejected way back in the year 2012, whereas the writ petition has been filed by him in the year 2020. The learned Single Judge, while holding that the claim of the appellant was liable to be rejected on the ground of inordinate delay, has placed reliance on decision of the Hon'ble Supreme Court in: (i) B.S. Bajwa and another versus State of Punjab and others, (1998) 2 SCC 523; (ii) State of Uttar Pradesh and others versus Arvind Kumar Srivastava and others, 2014 AIR SCW 6519; (iii) I. Chuba Jamir & Ors. Versus State of Nagaland & Ors., reported in 2009 AIR SCW 5162; (iv) Banda Development Authority, Banda versus Moti Lal Agarwal and Ors., 2011 AIR SCW 2835; & (v) Chennai Metropolitan Water Supply and Sewerage Board and others versus T.T. Murali Babu, 2014 AIR SCW 1171, wherein it had been held that inordinate delay in raising the dispute was sufficient to decline interference under Article 226 of the Constitution of India.

After carefully going through the facts of the case, we are of the opinion that the writ petition had been filed by the appellant after a considerable delay and the same was liable to be dismissed on the ground of delay and latches. The appellant had approached this Court for withdrawal of option exercised by him in the year 2002 after an inordinate and unexplained delay. Hence, we are of the considered view that there is no ground for interference and the order dated 22.03.2021, passed by the learned Single Judge in CWP No.1803 of 2020, is liable to be upheld. Consequently, this Letters Patent Appeal is dismissed and the order dated 22.03.2021 passed by the learned Single Judge is upheld.

Pending miscellaneous application(s), if any, shall also stand disposed of.