Kerala High Court
Abdul Rahiman vs Union Of India on 4 March, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:20673
OP (CAT) NO. 3 OF 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
OP (CAT) NO. 3 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 25.09.2019 IN OA
NO.1054 OF 2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
PETITIONER/APPLICANT IN THE O.A.:
ABDUL RAHIMAN,
AGED 78 YEARS, S/O.LATE MOHAMMED ABDULLA,
EVRA 326, LANE 12, CARMEL CONVENT GIRLS HIGH
SCHOOL ROAD, THYCAUD, THIRUVANANTHAPURAM-695 014.
(UDC RTD),REGIONAL RESEARCH INSTITUTE,(DRUG
RESEARCH),(CCRAS),POOJAPPURA,
THIRUVANANTHAPURAM-695 012.
BY ADVS.
B.RAGHUNATHAN
SRI.M.SALIM
SRI.P.PRASANTH
SRI.V.M.JACOB
RESPONDENTS/RESPONDENTS IN THE OA:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA,
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND
PENSION, DEPARTMENT OF PENSION AND PENSIONERS
WELFARE, NEW DELHI-110 001.
2 SECRETARY TO GOVERNMENT OF INDIA,
AYURVEDA DESK, DEPARTMENT OF AYUSH,
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, IRCS BUILDING,
NEW DELHI-110 001.
2025:KER:20673
OP (CAT) NO. 3 OF 2021
2
3 DIRECTOR GENERAL(AYURVEDA),
CENTRAL COUNCIL FOR RESEARCH IN AYURVEDA AND SIDHA
(CCRAS),NO.61-65-INSTITUTIONAL AREA,
OPP.'D' BLOCK, JANAKAPURI, NEW DELHI-110 058.
4 ASSISTANT DIRECTOR(AYURVEDA),
REGIONAL RESEARCH INSTITUTE,(DRUG RESEARCH)
(CCRAS),OPP.POOJAPPURA MANDAPAM,POOJAPPURA,
THIRUVANANTHAPURAM-695 012.
ADDL.R5 DIRECTOR GENERAL,
GENERAL RESERVE ENGINEER FORCE,
(BORDER ROADS TASK FORCE) (GREF),
SEEMA SADAK BHAWAN, RING ROAD NARAINA,
DELHI CANTT., NEW DELHI-110010.
(ADDITIONAL R5 IS IMPLEADED AS PER THE ORDER DATED
15/03/2021 IN IA 1/2021 IN OP(CAT) 3/2021)
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SUVIN R MENON
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.03.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:20673
OP (CAT) NO. 3 OF 2021
3
JUDGMENT
Amit Rawal, J.
1. The present O.P.(CAT) is directed against the order of the Central Administrative Tribunal dated 25.09.2019 in O.A.No.1054 of 2016.
2. Applicant - petitioner had superannuated from the Regional Research Institute (Drug Research) (Ayurveda), Thiruvananthapuram, on 31.07.2002, after having served for 31 years in the post of Upper Divisional Clerk. Before joining the Central Council for Research in Ayurveda & Sidha (CCRAS) had served as an Upper Divisional Clerk in General Reserve Engineer Force (GREF) for a period of six(6) years during 1963 to 1969, which is an integral part of Armed Forces of India. Respondent No.3 - Director General (Ayurveda) did not take into consideration the service rendered in GREF as qualifying service to compute his pensionary benefits. The petitioner - applicant preferred O.A.No.280 of 2014 for redressal of his 2025:KER:20673 OP (CAT) NO. 3 OF 2021 4 grievances. Tribunal vide order dated 28.05.2015 directed the respondents to take a decision on his representation and it has been disposed of vide order Annexure - A1 making observations that his request for counting the past service rendered in GREF cannot be reckoned as qualifying service for the purpose of pensionary benefits under the CCRAS, despite the fact that the GREF had sent the service particulars and no objection certificate, but of no avail.
3. The aforementioned matter was contested by the department on the premise that petitioner had not rendered qualifying service, therefore, would not be entitled to Chapter III of the Central Civil Services (Pension) Rules, 1972 (hereinafter called CCS(Pension) Rules, 1972). There was a delay of twelve(12) years in filing the O.A.
4. Learned Tribunal relied upon Rule 19 of CCS(Pension) Rules, 1972, which mentioned that a Government servant who is re-employed in a civil service or a post before attaining the age of superannuation and who, 2025:KER:20673 OP (CAT) NO. 3 OF 2021 5 before such re-employment, had rendered military service, may, on his confirmation in a civil service or post, opt either to continue to draw the military pension or retain the gratuity received on discharge from military service and cease to draw his pension and refund, and dismissed the case.
5. Sri.B.Raghunathan, learned counsel appearing on behalf of the petitioner submitted that learned Tribunal has gravely erred in applying Rule 19 of the CCS(Pension) Rules, 1972, which was not the case in hand for, petitioner had never claimed any pensionary benefits in the GREF service whereas the case of the petitioner, as made out in ground No.5A of the O.A. is covered under Chapter III ie., Rule 11 of the CCS(Pension) Rules, 1972, which also includes a temporary capacity. Concededly, as per the certificate Annexure - A8, applicant - petitioner had rendered the service in GREF from 1963 to 1969, that period was required to be counted as it was after the age of eighteen(18) years thus, second proviso is not applicable and therefore there is abdication.
2025:KER:20673 OP (CAT) NO. 3 OF 2021 6
6. On the other hand, learned counsel for the respondents contested the case and submitted that the certificate Annexure - A8 specifically barred the applicant - petitioner not to claim any benefit of qualifying service or service rendered in GREF. Even otherwise, as per Annexure R3(a) document sought from the GREF was not supplied and therefore, benefit as claimed by the petitioner - applicant could not be granted.
7. We have heard the learned counsel for the parties and appraised the paper book.
8. Learned Tribunal while rejecting the case of the petitioner from Paragraph Nos.6 to 8 has given the following reasoning:
6. Therefore, from the above it is clear that the services rendered by the applicant in GREF can be considered as military service reckoned for the purpose of calculating the qualifying service while computing the pensionary benefits of civil post. However, in the present case the services rendered by the applicant in GREF is for the period from 30.11.1963 το 29.11.1969 and vide Annexure A4 the GREF informed the 2025:KER:20673 OP (CAT) NO. 3 OF 2021 7 respondent Department that the service documents in respect of the applicant have already been destroyed after completion of its normal retention period and as such they are unable to ascertain the temporary service in respect of the applicant. The respondents in the reply statement categorically stated that the GREF has not remitted the prorata retirement benefits i.e. retirement gratuity and service gratuity of the applicant nor have they furnished the service certificate of qualifying service rendered by the applicant in GREF. In this regard this Tribunal finds that GREF vide Annexure A7 issued a certificate regarding non-giant of pension/family pension to the applicant and a no- objection certificate for counting of past service rendered by the applicant. It reads as under:
"Non Grant of Pension/Family Pension Certificate
1. It is certified that Ex GS-66334 UDC Abdul Rahiman of 23 BRTF was appointed in GREF on 10 Nov 1963 and discharged from service wef 29 Nov 1969 on completion of terms of engagement. At the time of discharge, neither any pensionary benefits like pension/family pension/gratuity etc were entitled/sanctioned to the individual by this Deptt nor any action for grant of pensionary benefits will be taken by his office in future as the above indvilhad not fulfilled the required minimum qualifying service for pensionary benefits.
2. Regarding reckoning of GREF service rendered by the indvl this department have no objection to count previous service rendered by the individual in this Deptt. The same maybe done as per existing Govt Rules as applicable to present employer"
7. Therefore, GREF issued a no-objection certificate for reckoning the service rendered by the applicant in GREF for calculating the qualifying service for pensionary benefits 2025:KER:20673 OP (CAT) NO. 3 OF 2021 8 in the respondent Department. In Annexure A4 letter dated 20.09.1999 GREF mentioned that they were unable to ascertain the temporary service of the applicant due to lack of service documents. In this regard the respondents submitted in the reply to the rejoinder that the applicant was not a regular employee in the office of GREF and his employment was for a fixed term in a specific project on contract basis and on completion of which he was discharged from his duty termed as non-effective service. Rule 19 of CCS (Pension) Rules, 1972 provides for counting of military service rendered before civil employment. In view of the judgment in R. Viswan's case supra this Tribunal holds that the service rendered by the applicant in GREF can be considered as service rendered in military service. However, under Rule 19 of CCS (Pension) Rules, 1972 certain conditions have to be fulfilled. It reads thus:
(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)die 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, of any, 2025:KER:20673 OP (CAT) NO. 3 OF 2021 9 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 dawn prior to the date of 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 of fixation of pay shall be set off against the amount of [retirement gratuity) and the commuted value of pension and the balance, nay, 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 authorityissuing the order of substantive appointment to a civil service or pest 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) 2025:KER:20673 OP (CAT) NO. 3 OF 2021 10 (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 services, in monthly instalments not exceeding thirty-six in number, the first instalment beginning from the month following the month 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 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 the 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"
8. This Tribunal finds that the applicant do not fall in any of the above conditions as in Annexure A8 certificate itself the GREF clearly mentioned that the applicant was appointed in GREF on 30th November, 1963 and discharged from service w.e.f 29th November, 1969 on completion of terms of engagement. Further at the time of discharge, neither any pensionary benefits like pension/family pension/gratuity etc. were entitled/sanctioned to the applicant. Moreover, the applicant had not fulfilled the required minimum qualifying service for such pensionary benefits in GREF. Therefore, under Rule 19 of CCS (Pension) Rules, 1972 also the applicant the not entitled to count his GREF service for calculating the qualifying service for civil pension.
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9. On perusal of the above, it is evident that the entire thrust and focus had been on Rule 19, which in our considered view would not be applicable as the petitioner - applicant had never claimed any pension or gratuity in the service rendered because it was not qualifying service but a fixed period of service which would fall in the definition of temporary capacity as provided under Rule 11 of Chapter III of the CCS(Pension) Rules, 1972. The same reads as under:
11.Commencement of qualifying service subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post:
Provided further that service rendered before attaining the age of eighteen years shall not count, except in the cases of counting of military service for civil pension under Rule 20.
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10. The contents of certificate Annexure - A8 issued by the GREF is also worth extraction. The same reads as under:
1. It is Certified that Ex GS-66334 UDC Abdul Rahiman of 23 BRTF was appointed in GREF on 30 Nov 1963 and discharged from service wef 29 Nov 1969 on completion of terms of engagement. At the time of discharge, neither any pensionary benefits like pension/Family pension/Gratuity etc were entitled/sanctioned to the individual by this Deptt nor any action for grant of pensionary benefits will be taken by this Office in future as the above indvl had not fulfilled the required minimum qualifying service for pensiona-ry benefits.
2. Regarding rekoning of GREF service rendered by the indvl, this department have no objection to count previous service rendered by the individual in this Deptt. The same may be done as per existing Govt Rules as applicable to present employer.
11. No doubt the certificate aforementioned restricts the right of the applicant - petitioner to claim the benefit but that cannot be against the CCS(Pension) Rules. In other words, court cannot ignore the applicability of CCS(Pension) Rules. Had the said rules been looked into by the Tribunal, the petitioner would have been entitled the 2025:KER:20673 OP (CAT) NO. 3 OF 2021 13 benefit of the service in an officiating or temporary capacity for fixed period of almost six(6) years i.e., 1963 to 1969. Thus, we hereby set aside the order of the Tribunal, allow the O.A. and direct the respondents to take into consideration the period of service of six(6) years rendered by the applicant - petitioner in GREF department and grant the benefit of the pension in terms of Rule 11 of the CCS(Pension) Rules, 1972 and further re-fix the pension in accordance with law within a period of two(2) months from the date of certified copy of this judgment.
O.P.(CAT) stands allowed.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE nak 2025:KER:20673 OP (CAT) NO. 3 OF 2021 14 APPENDIX OF OP (CAT) 3/2021 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF LETTER NO. F.3-5/2014- CCRAS/VIG./2729 DATED 10/12/2015. ANNEXURE A2 TRUE COPY OF THE DISCHARGE CERTIFICATE DATED 15/11/1969 ISSUED BY GREF.
ANNEXURE A3 TRUE COPY OF THE LETTER DATED 11/06/1999 OF THE 3RD RESPONDENT.
ANNEXURE A4 TRUE COPY OF THE LETTER DATED 20/09/1999 OF GREF TO THE 4TH RESPONDENT.
ANNEXURE A5 TRUE COPY OF THE LETTER DATED 01/10/2007 OF THE 3RD RESPONDENT.
ANNEXURE A6 TRUE COPY OF THE LETTER DATED 15/12/2008 OF THE 3RD RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE LETTER DATED 25/01/2010 OF GREF.
ANNEXURE A8 TRUE COPY OF THE NON GRANTING OF PENSION/FAMILY PENSION CERTIFICATE DATED 25/01/2010 ISSUED BY GREF.
ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 20/11/2012 SUBMITTED TO THE 1ST RESPONDENT.
ANNEXURE A10 TRUE COPY OF THE ORDER DATED 28/05/2015 IN OA NO.180/00280/2014.
ANNEXURE A11 TRUE COPY OF THE LETTER DATED 03/11/2015 OF THE 3RD RESPONDENT.
ANNEXURE R3(A) TRUE COPY OF LETTER DATED 05/04/2018 ISSUED TO THE GREF.
ANNEXURE R3(B) TRUE COPY OF THE LETTER DATED 23/04/2018 2025:KER:20673 OP (CAT) NO. 3 OF 2021 15 ISSUED TO THE GREF.
ANNEXURE R3(C) TRUE COPY OF THE LETTER DATED 08/05/2018 ISSUED TO THE GREF.
ANNEXURE RE(D) TRUE COPY OF THE LETTER DATED 30/05/2018 ISSUED TO THE GREF.
ANNEXURE R3(E) TRUE COPY OF LETTER DATED 08/05/2018 ISSUED TO THE GREF.
ANNEXURE R3(F) TRUE COPY OF REPLY RECEIVED ON 04/06/2018 BY GREF.
ANNEXURE R3(G) TRUE COPY OF DEPARTMENT OF PENSIONER'S WELFARE LETTER DATED 28/10/2018.
RESPONDENT EXHIBITS Exhibit R5(a) True copy of the letter No.2400/GEN/157/NER(B) dated 04.06.2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER 25/09/2019 IN OA NO.
180/01054 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXHIBIT P2 TRUE COPY OF OA NO.180/01054/2016 ALONG WITH ANNEXURES A1 TO A11.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 10/01/2018 IN OA NO.180/01054/2016. EXHIBIT P4 TRUE COPY OF THE REJOINDER SUBMITTED BY PETITIONER DATED 20/03/2018.
EXHIBIT P5 TRUE COPY OF THE REPLY TO REJOINDER ON BEHALF OF RESPONDENTS DATED 02/08/2018 ALONG WITH ANNEXURES R3(A) TO R3(G)