Central Administrative Tribunal - Kolkata
Sankar Nath Pramanik vs Union Of India (Uoi) And Ors. on 28 April, 1998
JUDGMENT D. Purkayastha, Member (J)
1. The short question of law in this case for adjudication is as to whether the applicant on his re-employment in the civil service is entitled to get benefit of former military service rendered by him in the Indian Air Force w.e.f. 15.12.59 to 10.7.70 i. e. 10 years, 6 months and 26 days as "qualifying service" for the purpose of counting pension in the civil service under Rule 19(1) of the CCS (Pension) Rules, 1972 after having a break of ten years between the military service and civil service.
2. The case of the applicant, in short, is that the applicant served in the Indian Air Force w.e.f. 15.12.59 to 10.7.70 i.e. a total period of service of 10 yrs., 6 months and 26 days after attaining the age of 18 years. Thereafter the applicant was discharged at his own request as per terms of the engagement i.e. 9 years regular service and 6 years reserved. The applicant received a military gratuity, D.C.R.G. of Rs. 2,325/-. Thereafter the applicant served in Hindustan Aeronautics Ltd. (HAL) Kanpur under the Ministry of Defence Production w.e.f. 22.9.70 to 11.11.75 i.e. total period of 5 years, 1 months and 23 days. Thereafter the applicant again joined as Vocational Instructor as C.T.I, under the A.T.I., Dasnagar, Howrah under the Ministry of Labour., Govt. of India. Thereafter the applicant had been appointed substantively on and from 17.10.80 in the post of Vocational Instructor, C.T.I. Calcutta permanently vide letter dated 20.2.86 Annexure-A/1 to the application. The applicant made representation on 20.2.81 to the Principal, Central Training Institute, Dasnagar, Howrah for counting his past military service towards civil service for the post of pensionary benefit under Rule 19(1) of CCS (Pension) Rules, 1972 (Annexure-A/2 to the application). It is also alleged that the respondents so confirmed the applicant's service w.e.f. 17.10.80 vide office order dated 20.2.86 (Annexure-A/1 to the application) did not require the applicant to exercise the option for counting military service within three months in terms of the Rule 19 (2) (a) of CCS (Pension) Rules, 1972. The applicant's prayer was considered in the year 1988 as per letter dated 22.12.88 and asked to refund of the amount of Rs. 2325/- paid to the applicant as military service gratuity, and the applicant deposited the said amount in favour of the CDA (F) for counting his former service towards civil service. That fact would be evident from the letter dated 4.5.88 and 22.10.88 Annexure-A/3 to the application collectively. Accordingly the applicant refunded the said amount of Rs. 2325/- by way of bank draft. The said bank draft was sent by the Director to the Accounts Officer vide letter dated 5.12.89 (Annexure-A/6 to the application) and the applicant was assured that his past service in the Air Force would be counted towards pension in terms of the Rule 19 of CCS (Pension) Rules, 1972. But on refund of Rs. 2325/- drawn by him as military service gratuity, the respondents did not take any action in this regard. Thereafter the applicant filed an O.A. No. 433/90 before this Tribunal and the said O.A. was also dismissed as premature one with a liberty to approach the Tribunal if no steps were taken by the respondents in the said representation for counting his past military service as prayed for. The applicant after said judgment dated 26.4.90 (Annexure-A/7 to the application) he again made representation on 15.11.91. And Department intimated him that his service cannot be taken into consideration for the purpose of pensionary benefits. Hence the applicant filed this application before this Tribunal for getting proper reliefs in this regard as stated above.
3. The case of the applicant is resisted by the respondents by filing a written reply and denying the claim of the applicant. It is stated in the reply that the respondent Nos. 4 & 5 tried their utmost of process the case for counting of his past Military service and accordingly Director, ATI had requested the applicant to refund Rs. 2325/- which was received by him as Service Gratuity from the Air Force Authority. But while considering his case for condonation of break in service between the period of service in Air Force & Ministry of Defence Production at Hindustan Aeronautics Ltd. (HAL), Kanpur, Govt. of India Undertaking from 15.11.75 to 30.6.76 for the purpose of counting of past services it was detected that HAL, Kanpur, is not a Govt of India Organisation but is a Govt. of India Undertaking.
Hence as per extant Rules, it was not possible to count his service rendered by him in HAL, Kanpur. Moreover, his services at Indian Air Force with effect from 15.12.59 to 10.7.70 cannot be counted for Civil Pension since the break between the Military Service and Civil Service is more than 5 (five) years i.e. 11.7.70 to 30.6.76 Govt of India's decision No. (i)(v) below Rule 20 of CCS (Pension) Rules, 1972 states that the break between the military/war service and the Civil Service shall be treated as automatically condoned provided the period of the break does not exceed 1 year. Breaks exceeding one year but not exceeding 3 years may also be condoned in exceptional cases under special orders of Govt. as per instruction of the Govt. of India contained in the letter marked as Annexure-A/1. As a sequel to this, the respondent could not condone the break between the Military Service and Civil Service for the purpose of pensionary benefits, thereby, the applicant is not entitled to get any benefit of the service as claimed in the application for the purpose of pension.
4. The ld. Senior Counsel Mr. Das leading Mr. Mukherjee and Ms. Banerjee ld. Counsel in this case has strongly argued before me stating inter-alia that the respondents did not apply their mind to the relevant provision of the Rule 19 of the CCS (Pension) Rules because the applicant served as a regular combatant in defence service from 15.12.59 till 10.7.70. So he is entitled to get pensionary benefit by counting his past military service for counting the qualifying service. In other words, past military service cannot be forfeited for the purpose of pension under CCS Rules 19 and 20(2) of the CCS (Pension) Rules, 1972 According to the ld. Counsel for the applicant, the applicant though made application alongwith his military discharge certificate to the Principal, C.T.I., Dasnagar, Howrah on 20.2.81 as an option for counting his former military service towards civil pension under Rule 19(1) of the CCS (Pension) Rules, yet the respondents did not require the applicant to exercise option for counting 'military service' within three months as required in the Rule 19(2)(a) of the CCS (Pension) Rules, 1972. on the face of the fact that the service of the applicant as Vocational Instructor was confirmed w.e.f. 27.10.80 by office letter dated 20.2.81 (Annexure-A/1 to the application). Since the applicant had expressed for counting of his military service and refunded the said amount of Rs. 2325/- and that had been received and accepted by the Accounts Officer of the military service, he shall be deemed to have opted for Clause (a) of Sub-clause (1) of Rule 19 and he is entitled to get benefit of the qualifying service rendered by him in the military service for the purpose of pension. So, Mr Das submits that the applicant's case clearly falls within the domain of Rule 19 and not Rule 20 of CCS (Pension) Rules as stated by the respondents. Mr. Das, Ld. Senior Counsel further submits that the notification dated 5.8.58 (Ann.A-1 to reply) containing the decision No. (1)(v) below Rule 20 of the CCS (Pension) Rules, 1972 (Annexure-A/1 to the reply) is not applicable to the applicant's case since Rule 19 of the CCS (Pension) Rules, 1972 does not speak the break in service upto a particular limit for counting past military service for pension on re-employment. In terms of the Sub-rule 19(1)(b) of CCS (Pension) Rules, 1972 which deals with the counting of military service towards civil pension. This rule has no reference to any break in between said service, in any way whatsoever. Thereby the respondents are bound to pass order under Sub-rule 5 of Rule 19 of CCS (Pension) Rules, 1972, having not done so, the entire action of the respondents (sic) by denial of pension by not taking into account the past military service as prayed for is arbitrary and illegal and thereby, the application should be allowed.
5. Mrs. Sanyal, ld. Counsel appearing on behalf of the respondents raised two points before me relying on the decision contained under Rule 22 (Annexure-A/1 to the reply) and submits that as per Clause 4(b) of the said decision of Annexure-A/1 the break between the military/war service and the civil service shall be treated automatically condoned provided the period of break in service does not exceed one year. The break exceeding one year but not exceeding three years can also be condoned in exceptional cases, under special order of the Govt. So, break in service exceeding three years cannot be condoned for counting past Military service for pension on re-employment in civil service. Since the applicant's case does not come within the exceptional cases and break exceeded more than three years thereby, he is not entitled to get benefit of the past services rendered by him in the Military Department as Military Service. And referring to this decision contained in Annexure-A/1 to the reply, Mrs. Sanyal submits that the applicant's case was rightly considered and rejected and no illegality has been committed by the respondents in refusing the claim of the applicant. Mrs. Sanyal, further submits that Hindustan Aeronautics Ltd., Kanpur is not a Govt. Organisation but it is a Govt. of India Undertaking. Hence as per extant rules relies it was not possible to count his past service rendered by him in HAL, Kanpur. So it cannot be said that the applicant was re-employed in the civil post after being discharged from his service in the Indian Air Force w.e.f. 15.12.59 to 10.7.70, hence his past service cannot be counted for civil pension under Rule 19 of the CCS (Pension) Rules, 1972.
6. I have considered the submission of the ld. Counsel for both the parties in this regard. I have also gone through the records placed before me. And it is found that the applicant approached this Tribunal by filing writ petition earlier. And that application has been dismissed as prematured one with a liberty to file fresh application, if applicant is aggrieved by any decision of the Govt. in future. And after that judgment of the Hon'ble Tribunal, the applicant's case was referred to Director General, Staff Training & Research Institute, EN Block, Sector-V, Salt Lake City by a Joint Director of Training for Director of App. Training, Min. of Labour, Govt. of India, Rafi Marg, New Delhi for consideration of his case in the light of the decision contained in the letter dated 31.5.88 and 26.2.88 read with Rule 19 of the CCS (P) Rules. And thereafter the Director General, Staff Training and Research Institute intimated the applicant by a letter dated 1.7.96 (Annexure-A/9 to the application) that the matter was referred to D.G.E.T. HQrs. who have informed by a letter dated May, 1996 that the request of Sri S.N. Pramanik, STA for counting his past service (Military Service) has been considered very carefully and found that break in service exceeding three years even as a special case cannot be condoned as per admissible Rule.
7. Feeling aggrieved by the said memorandum dated 1.7.96 (Annexure-A/9 to the application) the applicant approached this Tribunal alleging that the said memorandum (Annexure-A/9) was issued rejecting the claim of the applicant, arbitrarily, illegally and without applying mind to the Rule 19 of the CCS (Pension) Rules, 1972.
8. In view of the divergent arguments of the parties, I like to quote the relevant provision of Rule 19 of the CCS (Pension) Rules which runs as follows:
Counting of military service rendered before civil employment.
(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 after attaining the age of eighteen years, 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) (i) the pension already drawn, and (ii) the value received for the commutation of a part of military pension, and (iii) the amount of death-cum-retirement gratuity including 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 pay shall be set off against the amount of death-cum-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 the 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-cum-retirement 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.
9. Rule 20 of CCS (Pension) Rules, 1972 deals with the matter of counting of war service rendered before civil employment for pension. On a careful appreciation of the Rule 19(1) and Sub-rule 2(a) (b) and Sub-rule (5) of Rule 19 of CCS (Pension) Rules, 1972, indicates that the Govt. servant who applied for counting of service under Rule 19(1), may be allowed to exercise option for the same within one year from the date of joining in the civil post or service, and the refund of gratuity, pension etc. already drawn shall be refunded by the Govt. servant with 6% interest p.a. The authority issued an order of substantive appointment shall have to ask the Govt. servant to exercise the option within three months from the date of issue of order of substantive appointment. If the Govt. servant is on leave on that day, within three months of his return from the leave. And it is also found that if no option is exercised by the Govt. servant as required under Clause (a), the Govt. servant shall be deemed to have opted for Clause (a) of Sub-rule (1). It remains undisputed facts from the records and reply of the respondents that Authority who had issued the order of substantive appointment of the applicant did not ask the applicant to exercise any option as required under Rule 19(2) of CCS (Pension) Rules, 1972 though applicant made application for counting his past service after refunding the amount of DCRG received from the Military Service in this case after re-employment in 1981. Rule 19(2)(b) of CCS (Pension) Rules, 1972 says that if no option is exercised Govt. servant shall be deemed to have opted for Clause (a) of Sub-rule (1) of Rule 19 of CCS (Pension) Rules. In this case, it is also found that the applicant refunded the money which was received by him from the military service. Though he did not pay any interest on that amount of DCRG money as required under Rule 19 as he was not asked to pay the interest by the Department. So, I find that there is laches on the part of the authority who issued the order of substantive appointment of the applicant in the year of 1986. And due to fault of the Department, the applicant should not suffer from getting benefit of pension if admissible under the Rules. Sub-rule 5 of Rule 19 indicates in order to facilitate the compliance with the requirements of exercising option in time the authority could under this Rule, should incorporate in the order of re-employment to count previous military service as a part of the service qualifying for civil pension. The condonation of interruption in service, if any, between the military and civil services (sic). Admittedly, the respondents did not pass any order under this Rule, but raised the plea that his military service cannot be counted for pension in view of the decision contained in the Annexure-A/1 to the reply. The notification contained in Annexure A/1 appears that it has been issued by the Govt. of India sometime in the year 1958 whereas the Central Civil Services (Pension) Rules, 1972 came into effect from year of 1972 i.e. long after the said notification, on a scrutiny of the Swamy's Pension Compilation incorporating the CCS (Pension) Rules, Thirteenth Edition 1993, it is found that the notification contained in Annexure-A/1 has not been embodied in the book. And the Rule 19 does not speak about the break in service upto a particular limit as mentioned in the Notification (Annexure-A/1) as a special case. Mrs. Sanyal, ld. Counsel during hearing on 13.3.98 was given opportunity by an order dated 12.3.98 of this Tribunal to enlighten the Tribunal as to whether the notification contained in Annexure-A/1 to the reply is still in force in view of the provision of the Rules 19 and 20 of the CCS (Pension) Rules, 1972. But Ms. Sanyal, ld. Counsel could not explain the said fact by producing and relevant document or notification to show the said notification (Annexure-A/1 to the reply) is still in force. Admittedly, the applicant was re-employed after being discharged from Indian Air Force in HAL, Kanpur. Thereafter he was again substantively appointed by a letter dated 20.2.86 with retrospective effect from 17.10.80 in the post of Vocational Instructor, CTI Calcutta. So break in service is found more than ten years w.e.f. 10.7.70 to 1980. Rule 20(2) of CCS (Pension) Rules runs as follows:
"War service rendered by a Government servant who was appointed substantively to a civil service or post against vacancies which arose after the 31st December, 1947, shall, subject to the conditions specified in Sub-rule (1), be treated as military service as provided in Rule 19."
The applicant made an application to the Principal, Central Training & Research Institute by a letter dated 20.2.81 Annexure-A/2 to the application for counting his past Indian Air Force Service w.e.f. 15 12.59 to 10.7.70 including its discharged certificate (Annexure-A/3 to the application). After having been substantively appointed by the Director, Advanced Training Institute, Howrah the applicant was advised to refund Rs. 2325/- drawn by him as Military service through a bank draft in favour of the Accounts Officer for the purpose of counting past military service with civil service. That has been complied with by the applicant by submitting the draft of Rs. 2325/- by a letter dated 18.7.79 and that has been forwarded to the Accounts Officer of CDA(F) by the Director of Advanced Training Institute, Howrah for the purpose of counting of past service under Rule 19 of the CCS (Pension) Rules, 1972. So it is found that the applicant had already exercised his option for counting his military service before having been appointed substantively in the post of Vocational Instructor, C.T.I., Calcutta by a letter dated 1988 Annexure-A/1 to the application. So I find that there is no laches on the part of the applicant for the purpose of compliance of the required rules for getting benefit of past military service on employment in the civil service. As I have already held that the Director of Advanced Training Institute, Calcutta who appointed the applicant on substantive capacity did not ask the applicant to exercise the option as required under Sub-rule 2(a) of Rule 19 probably on the presumption that the applicant had already exercised option for counting his military service by a letter dated 20.7.81 Annexure-A to the application. Moreover, Clause (b) of the Sub-rule 2 of Rule 19 further shows that in absence of any option as required under Sub-rule 2(a) of the Rule 19, the applicant shall be deemed to have opted for Clause (a) of Sub-rule (1). Even if I say that the applicant did not exercise option in that case also the applicant is entitled to get the benefit of counting past service because in absence of option he shall be deemed to have opted for getting benefit of Clause (a) of Sub-rule (1) of CCS (P) Rules, 1972. It is also found that the applicant is refunded the amount of the DCRG in respect of the military service by way of bank draft but he did not pay any interest since he was not asked to deposit the same. On a perusal of the Sub-rule 5 of Rule 19 with the notification contained in Annexure-A to the reply of the respondents, it is found that the question of break in service would not be a bar for the purpose of counting pension. But in case of pension, the applicant was not asked to exercise option as required under Sub-rule 2(a) of Rule 19 of the CCS (Pension Rules for the purpose of getting benefit under Clause (a) of Sub-rule (1). Moreover, the said instruction was issued vide notification No. G.I. M.F. Memo No. F.I l(15)E-V/56 dated 5.8.58 i.e. long before the CCS (Pension) Rules, 1972. In the face of the said sub Rule 4 of the Rule 19 of the said notification, it appears to have become obsolete because the department is to pass an order under this Rule allowing the previous military service to count as part of qualifying service for the purpose of pension treating that interruption in the military service and civil service has been condoned. It is also found that before the CCS (Pension) Rules, the subject matter was guided by Article 356 of C.S.R. Rules. My considered opinion is that after publication of the CCS (Pension) Rules, 1972, the question of dispute will be guided by Rule 19 of the CCS (Pension) Rules, 1972. Moreover, it is found that Sub-rule 2 of Rule 20 of CCS (Pension) Rules, 1972 also stipulates that war service rendered by a Govt. servant who was appointed substantively to a civil service or post against the vacancy which arose after 31 December, 1947, shall, subject to the conditions specified in Sub-rule (1), be treated as military service as provided in Rule 19.
10. In view of the aforesaid circumstances, I am of the view that the respondents are totally wrong to deprive the benefit of the past 'military service' to the applicant from 15.12.59 to 10.7.70 for counting pension on his re-employment in civil post under the respondent Nos. 3 & 4 basing upon the notification dated 5.8.58 (Annexure-A/1 to the reply) as the said decision contained in the Annexure-A/1 to the reply cannot be applied to, when the Rule 19 of the CCS (Pension) Rules, 1972 itself is specific and clear and does not speak about the limit of the period for condonation for granting benefit to a Govt. servant on a re-employment in civil service under Rule 19 of the CCS (Pension) Rules. In view of the aforesaid circumstances, I hold that the said memorandum dated 1.7.96 (Annexure-9) is wholly arbitrary illegal and the said memorandum is contrary to the provision of the Rule 19 governing the service condition of the applicant for counting benefit of pension under CCS (Pension) Rules. So, I set aside the order dated 1.7.96 (Annexure-9) and I further hold that the applicant is entitled to get benefit of past military service for the purpose of pension as per provision of Rule 19 of the CCS (Pension) Rules. Therefore, I direct the respondents to count military service of 10 years, 6 months and 26 days from 15.12.59 to 10.7.70 as admissible to the applicant under Rule 19 of the CCS (Pension) Rules after accepting the draft of Rs. 2325/- which was deposited by the applicant for the said purpose. It may be mentioned here that the applicant is to deposit the interest at the rate of Rs. 6% p.a. on that amount of Rs. 2325/- from the date of receipt of the amount till the date of deposit of the draft in favour of the Accounts Officer of the Military service within one month from the date of this judgment. The respondents are also directed to give all benefits of pension as per rules after counting his past military service of 10 years from 15.12.59 to 10.7.70 within three months from the date of deposit of the interest as ordered. The application is allowed awarding no costs.