Punjab-Haryana High Court
Ex-Nb Sub Rajinder Singh vs Union Of India And Others on 30 January, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
CWP No.11589 of 2012 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11589 of 2012 Date of decision:30.01.2013 Ex-Nb Sub Rajinder Singh ...Petitioner Versus Union of India and others ...Respondents CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice Hon'ble Mr. Justice Rakesh Kumar Jain Present: Mr. Naresh Ghai, Advocate, for the petitioner.
**** Rakesh Kumar Jain. J.
The petitioner was enrolled as a Sepoy in the Indian Army on 28.09.1982. He retired as Havildar on 31.07.2000 and, thereafter, joined the Territorial Army (TA) w.e.f. 28.02.2002. He was granted JCO Commission in the rank of Naib Subedar and was discharged from TA on his own request on 23.11.2007.
The grievance of the petitioner is that his previous service in the Army should have been counted for fixation of pay and pension for which he served a legal notice in which he has exercised his option with regard to counting of his previous service, whereas the stand of the respondents was that the petitioner did not exercise his option within the stipulated period of 3 months of his re-enrollment in the TA, therefore, his former Army service was not taken into account as per the Army Order CWP No.11589 of 2012 [2] ***** dated 11.06.1965. It is also the case of the respondents that the petitioner did not give his option, rather kept on drawing military pension and retained gratuity, whereas he should not have drawn the military pension and should have refunded his gratuity for counting his former Army service to get the anti-date seniority, but he intentionally did not do so as he wanted to reap double benefits. It was also stated that the pay and allowances for promotion to the rank of Havildar w.e.f. 15.01.2004 and subsequently for the post of Naib Subedar were adjusted by PAO and arrears of all dues including gratuity were paid to the petitioner at the time of final settlement of accounts.
The OA filed by the petitioner before the Tribunal was dismissed on 18.10.2010 with the following observations:-
"The learned counsel for the petitioner has failed to show any document in which the required option has been exercised by the petitioner. His contention that the legal notice by him itself constitutes his option for counting the former service in TA is not tenable because as per Para 2 of letter dated 11.06.1965 (Annexure R-1), the so called option comprises of various elements, including; firstly, to continue drawing military pension and retaining gratuity, in which case former military service will not count as qualifying service for pension; or secondly, to cease to draw pension henceforth and refund the service pension already drawn during the TA service and gratuity including DCRG if any already drawn for the previous service, and count for previous military service for grant of pension under TA. In fact, perusal of the legal notice at Annexure A-6 shows that it does not include a word about exercising any kind of option. Moreover, the CWP No.11589 of 2012 [3] ***** petitioner had also taken no action to refund the gratuity received by him for the former service. It is also pertinent to note that Para 2(b) of Ministry of Defence policy letter dated 11.06.1965 placed at Annexure R-1 categorically states that "if no option is exercised within the period referred to above the TA personnel shall (be) deemed to have opted for clause (i) of Para 2(a) above", which states "to continue to draw military pension and retain gratuity received from military service in which case their former military service shall not count as a qualifying service for pension under these orders".
Even after receipt of response to the legal notice vide Annexure A-1, the petitioner did not choose to exercise option as per Annexure A-2, relied upon by the petitioner, Para 2 of which reads "All eligible retired officers and PBOR who have been enrolled in TA till date and have not been able to exercise the option as required vide para 2 of the above mentioned letter will do so within one year from the date of issue of this letter". The only recourse taken on receiving the reply to the legal notice was to file this petition.
It is also evident from Para 4 of Annexure A-1 as also Annexure R-5 that all the dues of TA service, as applicable to the petitioner, have already been paid to him by the concerned authorities.
In view of the facts discussed above, we are of the opinion that no case is made out to allow the petition. The petition is, therefore, dismissed." Learned counsel for the petitioner though argued vehemently but in substance failed to convince the Court that the legal notice by itself constitute the exercising of option for counting of his former Army service in TA. The reasoning given by the Tribunal while dismissing the OA, which has been extracted here-in-above, is flawless and we are of the view that CWP No.11589 of 2012 [4] ***** the legal notice cannot be termed to be an option as required under the law because the option would comprise of various elements which are mentioned in the order of the learned Tribunal.
In view thereof, the present writ petition is found to be meritless and as such, the same is hereby dismissed, though without any order as to costs.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
January 30, 2013
vinod*