1. Initially OA No. 2786/1997 was dismissed on merits vide order dated 13.08.1998 against which Writ Petition No. 5914 of 1998 was preferred by the applicant. The said Writ Petition was heard along with two other connected Writ Petitions No. 5152 and 5461 of 1998 and since the question of facts and law involved therein had been similar, the same was disposed of by a common order dated 09.04.2002 with the following observations: xxxxx. Keeping in view the fact that neither the factual aspect nor the effect of non-compliance of Rule 19(2)(a) of CCS (Pension) Rules, if any, had not been taken into consideration by the learned Tribunal, we are of the opinion that the matter requires afresh consideration by the learned Tribunal.
Before the learned Tribunal, if the parties so desire, may also file an application for amendment questioning the order passed by the Central Government which may be considered by it on its own merits.
Keeping in view the facts and circumstances of the case, we would request the learned Tribunal to consider the desirability of disposing of the matter as expeditiously as possible. We, however, make it clear that we have not gone into the merits of the matter and all the contentions raised in the writ petition shall be raised before the learned Tribunal.
2. Pursuant to the aforesaid direction, the matter was re-heard. The basic claim made in the aforesaid OA had been to quash the impugned orders and direct the Respondents to re-fix applicants pension from 11.12.1964 when he was re-employed in the Aviation Research Centre with consequential benefits like arrears etc.
3. The admitted facts of the case are that applicant joined Aviation Research Centre, Cabinet Secretariat on re-employment on 11.12.1964 when he was on Reserve Fleet in the Navy. He rendered military service in the Indian Navy for 10 years and, thereafter he was reservist during the period from 1964 to 1974. He had served in the Indian Navy from 14.9.1954 to 13.09.1964. Half of the service rendered in the Fleet Reserve,. i.e. 5 years was counted towards qualifying service and he was paid pension. The contention raised by the applicant is that the provisions of Rule 19 (2) (a) of the CCS (Pension) Rules is mandatory and no option was made available to him. Since other similarly placed officials, namely, K.D. Mitha in OA 1529/1996 and M.S. Narula and two Others in OA No. 747/1997, who were similarly placed, were re-heard and disposed of vide order dated 24.6.2003 by this Tribunal, after being remanded by the Honble Delhi High Court in the aforesaid Writ Petitions, he is entitled to similar benefits. For this purpose MA No.395/2004 and MA No. 396/2004 were filed. MA No. 395/2004 was preferred seeking condonation of delay, while MA No. 396 of 2004 a prayer was made for passing necessary orders in terms of the aforesaid judgment dated 24.6.2003. The applicant also stated that he is ready to forgo his military pension in terms of order passed and to opt for civil pension and also for providing him the benefits as given to the similarly circumstanced officials, namely, applicants in OA No.1529/1996 and OA 747/1997. It was further stated therein that the applicant, after retirement, is settled in Himachal Pradesh and due to financial constraints and ill health could not make any contact with his lawyer and hence there was a delay in filing the said MAs.
4. The Respondents contested the claim laid by the applicant and stated that no option was exercised by the applicant and his pension was fixed keeping in view the civil service rendered. The applicant, who is already receiving Reservist pension from Indian Navy for the reservist period, is not entitled for the civil pension for the same period and the same period cannot be counted towards civil pension as, that would be in violation of Rule 7 of CCS (Pension) Rules, 1972. The said MAs were dismissed in default and for non-prosecution vide order dated 2.12.2004. However, vide order dated 20.12.2004 on MA 2539/2004, the order dated 2.12.2004 dismissing the MAs in default and for non-prosecution was recalled. When such was the position, the Respondents filed MA 490/2005 contending that the applicant's case is not similar to the officials in whose favour Judgment and Order dated 24.6.2003 was rendered by this Tribunal as the applicant had earlier exercised an option on 16.9.1976 stating that he opted to draw military pension for rendering his services in Defence as a separate pension without counting towards civil pension. MA No. 395/2004 and MA No.396/2004 were again dismissed in default and for non-prosecution vide order dated 12.4.2005. Again MA No. 958/2005 was preferred by the applicant seeking recall of the order dated 12.4.2005 stating that by the time he reached the Court at 11 a.m. he found that the matter had been dismissed in default. Though the learned Counsel made a request to the Court concerned on the same date for recalling of the order, but the said request was not acceded to. Since the applicant is an old retired pensioner and senior citizen, he will suffer irreparable loss and injury unless the case is not restored.
5. I have heard the learned Counsel for both sides and perused the pleadings carefully.
6. Shri A.K. Patel, learned Counsel appearing for the applicant vehemently contended that as the claim laid is squarely covered by the Judgment and Order dated 24.6.2003 passed by this Tribunal in OA Nos.
1529/1996 and 747/1997, the benefit of the said judgment be extended to the applicant. The learned Counsel for the Respondents, on the other hand, contested and controverted the above contention.
7. On perusal of order sheets maintained in the present case, I find that the Respondents, at no point of time, had pressed their MA No.490/2005 and no notice was issued on the same at any point of time, though it was filed on 3.3.2005.
8. It would be relevant, at this stage, to note the relevant portion of Judgment dated 24.6.2003, which reads as under: 8. Having regard to the fact that respondents has not called option from applicants in terms of Rule 19(2)(a) of the Pension Rules, the impugned OM dated 17.12.1996 and 28.1.1997 in OA 747/1997 and dated 23.4.1996 in OA 1529/1996 are quashed and set aside deeming that applicants have exercised option under Rule 19(2)(a) of the Pension Rules in favour of counting the qualifying service towards civil pension. Respondents shall re-fix the basic pension of applicants counting the period of service during which applicants were Navel Fleet Reservists and to pay them the arrears due. Respondents shall adjust the Navel pension paid to applicants uptil now from the re-fixed pension and/or against the arrears, if any, on the re-fixation of the pension as above and securing refund of the Navel pension paid to applicants in easy monthly instalments not exceeding one-third of the amount of the re-fixed pension.
Respondents shall pass appropriate orders in terms of the above directions within a period of three months from the date of receipt of these orders.
9. Since the Respondents have not pressed the factum of applicants alleged exercising of option in the year 1976 and on the other hand applicant is ready to forgo his belated pension and opt for civil pension in terms of order dated 24.6.2003, I direct the Respondents to examine the applicants claim in terms of Judgment dated 24.6.2003 as noticed hereinabove and accordingly regulate his claim by passing appropriate orders within a period of three months from the date of receipt of a copy of this order.