ACA Adityan
The petitioner, who is a senior citizen, an octogenarian, has filed W.P.No.16327 of 2009 before the High Court of Judicature at Madras, for restoration of his Army Service Pension, which was stopped by the respondents on 6.9.2000 (wrongly mentioned in the petition as 6.9.2001) and also for the refund of the recovery of his life pension with 12% interest from the date due till the date of payment and for costs. The said writ petition was transferred to this Tribunal, after the formation of the same under the Armed Forces Tribunal Act 2007, and renumbered as T.A.No.49 of 2009.
2. The averments in the affidavit to the petition in brief relevant for the purpose of deciding this petition would run as follows:- The petitioner was enrolled in the Indian Army on 05.06.1945 and after 10 years and 2 months of active army service, he was transferred to reserve list on 13.08.1955 and was retained in reserve list till 01.10.1961 and was finally discharged from Army with Life Pension of Rs.10/- per month awarded vide PPO No. S 4525/64. Thereafter the petitioner was enrolled in the GREF on 25.10.1960 and after completing 22 years, 7 months and 7 days of service in GREF, the petitioner was discharged from service on 04.06.1983 on superannuation, with Civil Service Pension vide PPO No. C/GREF/648/83. The petitioner was receiving the Army Service Life Pension from 01.10.1961 to 06.09.2000 which was revised and enhanced from time to time along with his civil service pension from 4.06.1983.
2(a)The PCDA (Pension), 4th Respondent herein, in their letter No.Gtss/ORs/DP/Corr/2000 dated 15.02.2001 had revised and refixed the petitioners army life service pension and the same was paid to him till September 2001. The petitioners army service pension book was collected from him for refixation of his army pension. But the same was not returned to him. Without giving any notice to the petitioner, his army service life pension was stopped on the orders of PCDA (Pension), 4th respondent herein. Further, the 4th respondent had also recovered the service pension paid to the petitioner from his civil pension. The 5th respondent has also informed the petitioner that his army service rendered from 19.08.1946 to 12.08.1955 was counted towards his civil service and his revised civil pension was fixed at Rs.1,454/- with effect from 01.01.1996 and therefore, he is not entitled to army pension. The petitioner issued legal notice through his Legal Aid counsel on 27.11.2007 claiming his military pension with arrears. The 5th respondent in his letter No.1301571/Pen/LN 86 dated 06.02.2008 had replied that as per PCDA letter No.GTS/ORs/DP/Corr/2001 dated 12.07.2001, since the petitioner has opted for civil service pension, the petitioner is not entitled for military service pension and accordingly, the 5th respondent had stopped the military service pension, which was paid to him till then. Hence, the petition.
3. The respondents 3, 4 and 6 have filed a joint counter contending as follows:- There is no cause of action for the petitioner to file this petition. The petitioner is not entitled to get Army Service Pension separately due to his option exercised vide option dated 10.05.1983 for counting the Army Service towards enhanced rate of service pension with his GREF service (General Reserve Engineer Force). As per letter No.GTS/ORS/DP Corre/2000 dated 12.07.2001, the petitioner had opted to count his military service towards civil pension vide petitioners option dated 10.05.1983. The position was clarified to the Petitioner vide Records Office, Madras Engineer Group letter No.130571/Pen (S)/Pre-86/Rev/74 dated 13.08.2002 and once again the same was clarified to the Petitioner vide Records office Madras Engineer Group letter No.130571/Pre- 86/Rev/76 dated 08.05.2003. Hence, based on the option certificate furnished by the Petitioner, PCDA (P), Allahabad have withheld the Military Pension correctly and legally.
3(a)The Petitioner was enrolled in the Army (Madras Engineer group) on 05.06.1945 as a Boy Recruit, as his age on enrolment was 17 years and re-mustered as trained Sapper with effect from 19.08.1946. He was a trained Soldier in terms of new Constitution on 26th January, 1950. The petitioner was transferred to Reserve Establishment with effect from 18.08.1955. The petitioner was discharged from Reserve Service with effect from 01.10.1961. Thereafter, the petitioner was reemployed in Border Roads Organization (General Reserve Engineer Force) on 25.10.1960. He had proceeded on superannuation retirement with effect from 04.06.1983 after noon. The position regarding granting pensionary benefits was clarified to the petitioner vide records office, Madras Engineer Group letter No.130571/Pen (S)/Pre86/Rev 74 dated 31.08.2002 and the position was again clarified to the Petitioner vide Records office, Madras Engineer Group letter No.130571/Pen (S)/Pre- 86/Rev/76 dated 08.05.2003.
3(b)As per para 126 (6) of Pension Regulations for the Army 1961 (Part 1), option exercised for counting of former service for pension / gratuity shall be final and can not be revoked. In the instant case since the above named pensioner had given option for counting of Military service towards civil service, he was sanctioned pension for combined Military and Civil Service and notified vide PCDA (P) Allahabad PPO (No.C/GREF/648/1983). The notice sent by the petitioner was suitably replied. Hence, the petition is liable to be dismissed.
4. The respondents 1, 2 and 5 have not filed any separate counter.
5. Now the point for determination is whether the petitioner is entitled to an order for restoration of life pension of army service from the date of stoppage viz. 06.09.2000 and whether he is entitled for the refund of the life pension effected from his civil service pension, consequent to the stoppage of the same on 6.9.2000 with interest as prayed for?
6. The Point:- The admitted case of the petitioner is that he enrolled in the Army, Madras Engineering Group, on 05.06.1945 at the age of 17 years as a Boy Recruit and re-mustered as trained Sapper with effect from 19.08.1946. Thereafter, the petitioner was transferred to Reserve Establishment with effect from 13.08.1955 and he was discharged with effect from 01.10.1961. Thereafter, the petitioner was re-employed in Border Roads organization (General Reserve Engineer Force) on 25.10.1960, and he retired on superannuation with effect from 04.06.1983 after noon. According to the petitioner, he was getting his army service pension till the same was stopped on 03.10.2000 (as per the Xerox copy of the PPO produced before this Tribunal). A perusal of the copy of the PPO produced by the petitioner will go to show that he was drawing service pension at the rate of Rs.1,037/- per month till August 2000 and pension for September 2000 was stopped in October 2000. The reason assigned for stopping the army pension for the petitioner, according to the respondents, is that the petitioner had opted for civil service pension as per Rule 19(1) of CCS (Pension) Rules, 1972. According to the learned counsel for the petitioner, the alleged option was not exercised by the petitioner within the time stipulated under the same Rule 19 of CCS (Pension) Rules, 1972 and hence, the learned counsel for the petitioner would contend that the stoppage of army pension on the basis of the alleged option certificate signed by the petitioner is illegal and the same is to be restored and the recovery of the pension made from the petitioners Civil Pension, which the petitioner is receiving till today is also against the principles of natural justice.
6(a)Now the only moot point for determination in this petition is whether the alleged option obtained from the petitioner is valid under the eye of law?
6(b) Rule 19(1) of CCS (Pension) Rules 1972 reads as follows:-
â19. 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 â
(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 â
(i)the 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, 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 employees 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 â
(i)the pension drawn prior to the date of reemployment 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 reemployment 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 of pay shall be set off against the amount of (retirement gratuity) and the commuted value of pension and the balance, if any, shall be refunded by him. EXPLANATION : In this clause, the expression âwhich 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 reemployment, and the expression âwhich was not taken into account shall be construed accordingly. This is on the Government of India decision on Rule 19, which reads as follows:-
GOVERNMENT OF INDIAS DECISIONS
(1) Re-employed military pensioners should exercise option under Rule 19 (1) within one year
from the date of re-employment â Under Rule 19 (1) of the CCS (Pension) Rules, 1972, a Government servant who is re-employed in a civil service or post is required to give an option at the time of his confirmation in the civil post whether he would like to get past military service counted for pension in the civil post or service.
In fact, the above Government of India decision is only to extend the time limit for exercising the option under Rule 19(2)(a) of CCS (Pension) Rules 1972. Rule 19(2)(b) clarifies the position, in case if a personnel of Army did not opt either for army pension or civil pension, then he is deemed to have opted for clause (a)of Sub Rule 1 (which has been extracted above) ie. he will 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. As per the Government of India decision cited supra, the petitioner has to exercise his option within one year from the date of re-employment. Admittedly, the petitioner was re-employed on 25.10.1960. So, as per the above said Government of India decision the petitioner ought to have exercised his option on or before 25.10.1961. But the option certificate produced shows that it was obtained from the petitioner only on 10.05.1983.
6(c)The learned JAG Officer in his argument would state that the petitioner has already exercised his option in the year 1979 itself on the basis of the Xerox copy of the order No.GI/C/81793/XX, Office of the CDA (P), Allahabad, dated 01.03.1979, filed along with the counter of Respondents 3, 4 and 6. But, there is absolutely no iota of evidence or material produced before this Tribunal to show that the petitioner opted for Army service pension as per Rule 19(a) of CCS (Pension) Rules 1972, referred to above in the year 1979 or prior to 10.05.1983. So, it goes without saying that the option certificate dated 10.05.1983 is not valid in the eye of law because it was not obtained within one year from the date of re-employment in the civil service. If the option certificate dated 10.05.1983 goes, then it is to be presumed that as per Rule 19(1)(a) of CCS (Pension) Rules 1972, the petitioner continues to draw the military pension or retain gratuity received on discharge from military service even though his former military service shall not count as qualifying service. So, We are of the considered view that the petitioner is entitled to continue to draw the military pension till his life time. Point is answered accordingly.
7. In fine, the petition is allowed and the impugned order of the 4th Respondent, PCDA (P), Allahabad, vide letter No.GTS/ORs/DP/Corr/2001 dated 12.07.2001 is set aside and it is ordered that the Army service life pension for the petitioner is to be restored from the date of stoppage and the recovery, if any, made from his civil service pension is to be refunded to the petitioner, but without any interest. Time for complying with the order is four months from today. If the respondents do not comply with the order within the stipulated time of four months, then the refund amount is liable for interest at the rate of 9% per annum. The respondents are directed to return the PPO to the petitioner. No costs.