Punjab-Haryana High Court
Union Of India And Others vs Om Parkash Kapoor And Others on 7 July, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CWP No.12276 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.12276 of 2011 (O&M)
Date of Decision:07.07.2014
Union of India and others ...Petitioners
Versus
Om Parkash Kapoor and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Ashwinie K. Bansal, Central Government Standing
Counsel for the appellants.
Mr. Inderjit Kaushal, Advocate
for respondent No.1.
HEMANT GUPTA, J.
Challenge in the present writ petition is to the orders of the Central Administrative Tribunal, Chandigarh Bench, Chandigarh passed on 28.10.2009 Annexure P/1 and subsequent order on miscellaneous application on 16.03.2011 in respect of counting of military service for the purpose of pension and pensionary benefits and refund of the amount of the pensionary benefits received by respondent No.1 (for short, 'the applicant') before counting of military service for pension.
The applicant-respondent No.1 herein joined Indian Army on 2.5.1964 and was discharged on 28.2.1983. On 6.2.1986 he joined as Electronic Engineer in the Electronic Test and Development Centre (for short, 'ETDC') under the Himachal Sharma Aarti 2014.07.10 13:20 I attest to the accuracy and integrity of this document CWP No.12276 of 2011 -2- Pradesh State Electronic Development Corporation. The said centre was taken over by the erstwhile Department of Government of India on 1.5.1988. The services of the applicant was transferred to the Government of India w.e.f. 1.5.1988. The terms for transfer are contained in Annexure A/1 dated 31.5.1989. The relevant clauses read as under:-
"(a) The appointment will be on transfer basis from the HPSEDC to the SEDC Directorate Department of Electronics under the Government of India. The transfer is effective from 1.5.1988.
(b) Your pay will be fixed at the stage of Rs.2350/- & Rs.6/-
to be absorbed in further increment in the scale of pay of Rs.2200-4000 & other allowance as admissible under the Central Government.
(c) Your present date of increment in HPSEDC will be protected.
d) The services rendered by you in the HPSEDC will count towards pensionary benefits under the Government of India provided the GPF contributions together with interest thereon paid by the department and made over to the Department of Electronics. Similarly the earned leave at your credit could also be protected provided the Corporation pays the leave salary charges. A reference in this regard is being made to the HPSEDC separately."
Subsequently the Government of India advertised posts of Scientists Engineer to be filled by direct recruitment. The applicant applied for such post and was offered appointment to that post vide order dated 31.5.1991.
The claim of the applicant is that the said appointment be considered as re-employment after the discharge from the Indian Army for the first time and, thus, he has an option to seek counting of military service rendered before civil employment in terms of office memorandum dated 31.5.1988. The relevant extract from the said office memorandum reads as under: Sharma Aarti 2014.07.10 13:20 I attest to the accuracy and integrity of this document CWP No.12276 of 2011 -3-
"3. In order to facilitate compliance with the requirement of exercising option in time, it has been further decided that the administrative authorities concerned should incorporate in the order of re-employment itself a clause to the effect that if the re-employed ex-serviceman desires to take advantage of the retirement benefits based on combined military and civil services, he should exercise option within a period of one year from the date of his re-employment."
The request of the applicant for counting of military service for the purpose of pension was declined on 24.11.2005 Annexure A/24. It is the said communication which was impugned by the applicant before the Tribunal in an Original Application No.541-CH of 2007 under the Administrative Tribunal Act, 1985. The Tribunal allowed such application on 28.10.2009 finding that there was no occasion for the applicant to have exercised an option at earlier point of time than the offer of appointment on 31.5.1991. Consequently, Annexure A-23 dated 12.4.2005 and Annexure A- 24 dated 24.11.2005 were quashed and the present petitioners were directed to count military service of the applicant for pension and pensionary benefits subject to the condition of refund of the benefits in terms of Rule 19 of the Central Civil Services (Pension) Rules, 1972.
In terms of direction issued by the Tribunal, the petitioners communicated on 19.5.2010 to the applicant to deposit a sum of `14,37,241 (Fourteen lakh thirty seven thousand two hundred forty one) before the counting of military service of 18 years and 10 months. The said amount included `5,51,679 (Five lakh fifty one thousand six hundred seventy nine) of the benefits of the Army service w.e.f. 3.7.1986 to 30.04.2010 and also amount Sharma Aarti 2014.07.10 13:20 I attest to the accuracy and integrity of this document CWP No.12276 of 2011 -4- of interest of `8,85,562/- (Eight lakh eighty five thousand five hundred sixty two). The applicant disputed such calculations before the Tribunal. The Tribunal allowed miscellaneous application filed by the applicant and ordered that 31.5.1991 is the relevant date from which the applicant was supposed to deposit his military service benefits along with simple interest @ 6% per annum as per instructions (O.M dated 10.06.1988 and 23.5.1994). The relevant extract reads as under:-
"3. The officers/servicemen exercising option in __ with the provisions of this O.M. for counting of military service as qualifying service shall be required to refund the benefits in accordance with the provisions of the Rule 19 (1) of CCS (Pension) Rules, 1972 along with 6 per cent simple interest as already notified vide this department's O.M of 31st May, 1988 referred to above."
Aggrieved against the directions of the Tribunal that the applicant is required to deposit the benefits of pension from the date of his appointment along with simple interest @ 6%, the Government of India has challenged the said order before this Court by way of present writ petition.
Learned counsel for the petitioners has vehemently argued that the applicant is liable to refund the pensionary benefits drawn by him from the date of his initial appointment i.e. 6.2.1986 whereas, the Tribunal has taken the date as 31.5.1991. It is contended that in terms of conditions of transfer contained in memorandum dated 31.5.1989 the applicant is entitled to pensionary benefits from the date of his appointment i.e. 6.2.1986 therefore, the pension drawn from the Military is to be refunded from the said date.
On the other hand learned counsel for the respondent- Sharma Aarti 2014.07.10 13:20 I attest to the accuracy and integrity of this document CWP No.12276 of 2011 -5- applicant submitted that the calculation sheet produced by the petitioners shows that the amount calculated includes the pension drawn by the applicant from the year 1986. He states that he is ready to deposit all the pension and pensionary benefits drawn from Army from the date of his appointment i.e. 6.2.1986 but he is liable to pay simple interest @ 6% whereas, the petitioners claimed compound interest amounting to rupees over Rs. eight lakhs.
We have heard learned counsel for the parties and find that the claim of the petitioners that the applicant is liable to refund the pensionary benefits received from Military from the date of his appointment i.e. 6.2.1986 cannot be faulted in any manner. That is the date from which the applicant is entitled to pensionary benefits from Government of India. The applicant having chosen to draw civil pension after rendering of military service is liable to refund the pensionary benefits received from army for the period of his service on the civil posts.
It appears that dispute is in respect of the rate of interest. The petitioners have claimed interest rate as applicable to GPF. The relevant extract from the communication addressed to the applicant on 13.08.2010 reads as under:-
"xxxxx The interest has been calculated (under CCS Pension Rule 17 to 20, Govt. of India Decision No.3) at the interest rate application to GPF.
Rule 19(1)(b) will be applicable. Interest has been calculated according to the guidelines under CCS Pensions Rules & the pensionary benefits will be released by the PAO, DIT, New Delhi after the refund of the military service benefits w.e.f. 03.07.1986 to 30.04.2010 by Sh. O.P. Kapoor."
In fact, the Government of India has issued circular in the Sharma Aarti 2014.07.10 13:20 I attest to the accuracy and integrity of this document CWP No.12276 of 2011 -6- year 1988, as modified on 23.5.1994, that 6% simple interest is required to be deposited while refunding the amount of pensionary benefits received from Army. The petitioners could not resort to interest at the GPF rate which is not part of any rule, instructions or order. The rate of interest which can be charged is what has been fixed by a circular issued by Government of India.
Consequently, we dismiss the present writ petition with direction to the petitioners to calculate the amount of pensionary benefits drawn by the applicant from 6.2.1986. The petitioners shall be entitled to claim simple interest @ 6% in terms of instructions issued in the years 1988/1994.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) 07.07.2014 JUDGE aarti Sharma Aarti 2014.07.10 13:20 I attest to the accuracy and integrity of this document