Dr. B.K. Sinha, Member (A).
1. The instant dispute relates to reckoning of the services rendered by the applicant during his employment with the Indian Navy for the purpose of retiral and other consequential benefits. The applicant has filed this OA before this Tribunal when his repeated representations produced no result. The applicant has sought mainly the following reliefs:-
(a). Allow the present Original Application filed by the applicant and issue directions to the respondents for grant of ex-servicemens benefits (initial pay fixation on jointing IB and counting of Naval service towards civil pension etc.) by taking cognizance of Certificate of Verification of Military Service of Ex-Sailor issued by previous employer, i.e., Indian Navy along with all consequential benefits including, interest @ 18% (p.a) on the arrears of above;
(b).Award interest @18% for 3 years on the amounts of Rs.34,751/-(Rupees Thirty Four Thousand Seven Hundred Fifty One only) and Rs.59,097/- (Rupees Fifty Nine Thousand Ninety Seven Only) on account of delayed payments of retirement benefits and commuted pension; and
(c). Direct the respondents to consider the representation dated 14.05.2008 of the applicant and rectify the mistakes in the PPO including supply of original and pension calculation sheets.
2. However, the OA was earlier decided vide order dated 1.3.2011 whereby the same was dismissed as barred by limitation. The applicant thereafter approached the Honble High Court of Delhi vide W.P.(C) No. 4552/2011 wherein the aforesaid order of the Tribunal was set aside vide its order dated 19.2.2013 on the basis of the decision of the Honble Supreme Court in the matter of Union of India vs. Tarsem Singh, (2008)8 SCC 468, holding that the pensionary claims are reckoning cause of action arising each month when pension becomes payable and cannot be blocked even if the applicant were to approach belatedly for the benefit. Accordingly, the matter has been remanded to this Tribunal to be adjudicated on merits of the case.
3. The applicant case, in brief, is that he had rendered a service of 5 years 4 months and 7 days (20.8.1960 to 27.1.1966) in the Naval services, in confirmation whereof a discharge certificate was issued in his favour. The applicant, thereafter, joined the Intelligence Bureau (IB) as a Junior Intelligence Officer-I(Tech) [hereafter referred to as JIO-I(Tech.)] w.e.f. 01.03.1968 under the Defence quota. The applicant submitted his discharge certificate from the Naval Services as required by the IB consequent to his taking up civil employment. The applicant was confirmed and appointed in substantive capacity as JIO-I w.e.f. 22.12.1973 vide Office Order dated 20.12.1978. It is the case of the applicant that the order of substantive appointment was required to making such a Government servant to exercise the option under Rule 19(2) of CCS (Pension) Rules, 1972, within three months of date of issue of such order in writing and also bring the provisions of Clause (b) of the said Rule to the notice of such a Government Servant. The applicant submits that in the instant case the IB omitted to bring the provisions of Rule 19 of the CCS (Pension) Rules along with the order appointing him substantively and did not ask him for exercising the option as required under Rule19(2) of CCS Pension Rules, 1972.
4. The applicant proceeded for two years of lien on foreign Service to join NTPC w.e.f.27.01.1982 and permanently absorbed therein w.e.f. 01.04.1984. During the period of lien with the IB, the applicant claims to have paid his pension contribution to the Government as per rules. The applicant following his absorption in NTPC became entitled for his terminal benefits of pension etc. for the service rendered in Naval Services as well as Civil employment, including foreign service. It is the contention of the applicant that the respondents did not reckon the services rendered in the Navy for the purpose of pension on the alleged ground that the applicant has not exercised the option as per Rule 19 of the CCS Rules within three months of his initial appointment in the IB and, therefore, his claim stood time barred. The learned counsel for the applicant vociferously agued that the respondents are totally precluded from reaping advantage of their own wrongs in as much as the respondent had failed to comply with the mandatory requirements under Rule 19 of the CCS(Pension) Rules, 1972. The applicant, therefore, submits that he suffers from the continuing wrong and as such, limitation would not apply in the present case in respect of fixing the pension by counting the past naval services. The Pension order was issued on 28.11.1988, however, much before the applicant had given a representation vide letter dated 11.05.1987 for fixing the pension by the services rendered to the Navy, but to little avail. The Indian Navy vide its letter dated 11.12.2007 to the IB duly verified and forwarded the letter regarding reckoning of the period of service under the Navy towards civil pension of the applicant to the IB (page 115 to 117) and informed the applicant of the same(Page 114). The IB, however, rejected the claim of the applicant in a mechanical manner vide its letter dated 12.12.2008. In the present case applicant claims to have been subjected to harassment and victimization due to filing of the case against the IB for his non-promotion in Delhi High Court. The applicant has relied upon the following case:
(i). Sankar Nath Vs. UOI And Ors. decided on 28.04.1998 by Kolkata Bench of CAT
(ii). Suresh Singh Vs. UOI and Ors. W.P.(S) No.4076 of 2008 before Jharkhand High Court.
(iii). Jaswant Singh Vs. Unknown O.A. No.805-JK-2009 decided on 22.09.2011 by the Chandigarh Bench.
(iv). Rabel Singh Vs. UOI and Ors. O.A. No.757-HR-2010 decided on 23.08.2011
(v).Shri P.V. Subba Rao Vs. Senior Supdt. Of Post in OA 146/2004 decided on 29.07.2009.
5. In view of foregoing premises, the applicant submits that it a fit case for allowing the Original Application and for granting the following reliefs:-
a). The Applicants Military service 20.08.1960 to 27.01.1966 is to be counted for fixation of his case of pension and Notional initial pay fixation is to be done on joining the IB by allowing one increment for each year of Military service for fixing the pension.
b). LPA 216/1980 was decided on 5.11.1999 and the arrears were to be paid accordingly on promotion and pay fixation, however, arrear of Rs.34751 was paid on 10.03.2003 (page 53) and Rs.59097 was paid on 27.02.2007 for the period 16.11.2003 to 30.06.2006 on account of retirement benefits and commuted pension. The Applicant is entitled for interest on delayed payment.
c). The applicants pay was to be fixed at Rs.932/- in place of Rs.886/- as fixed in PPO at page 104 to 106. The ten month average emoluments 1.06.1983 to 31.03.1984 was not Rs.530/- as shown in PPO. The Calculation sheet has been shown at Page 107 of the Petition. The emoluments which would be drawn under the Government had he not been on Foreign Service shall be treated as emoluments (page 32). Family pension has to be sanctioned in the PPO in the event of death of the Applicant.
d). Award the exemplary costs.
6. The respondents have filed a counter affidavit rebutting all the points and issues raised in the OA. A simple plea of the respondents is that the applicant has not complied with the mandatory instructions as contained in Rule 19(1) of the CCS(Pension) Rules, 1972 which provided that that a Government servant, who is re-employed in civil service or post, was required to give an option within three months at the time of his confirmation in a civil post whether he would like to get the past military service counted for the pension. The applicant did not exercise his option till the year 2000 and as such, his pay had been fixed in accordance with the provisions of Rules. The applicant has not raised this issue in the first 19 years of his service. The respondents have also denied that he was taken in NTPC on deputation basis. In fact, he was selected on direct recruitment basis on his own volition and not on deputation basis. He held a permanent lien in IB, which was retained for the first two years and subsequently suspended from 31.3.1984 consequent to his absorption in NTPC. The applicant was informed about the rule position that the pay drawn while in foreign service did not constitute his emoluments, but rather the pay, he would have drawn under the Government had he not been in foreign service, alone is to be treated his emoluments.
7. The respondents have further mentioned in their counter affidavit that the matter relating to the counting of military service had been referred to the DOPandT, which had drawn a parallel with the case of one Hira Lal Gupta, who had joined Civil Service on 30.5.1985 and had exercised option for counting of past military service in April, 1997 and had rejected his claim.
8. The respondents have further submitted that Rule 68 of CCS(Pension) Rules provided interest on delayed payment of gratuity only and not in respect of other retirement benefits. Since the applicant had been paid the arrears of restoration of 1/3 of commutation of pension, the question of interest on delayed payment of retiral benefits did not arise. Further the applicant has already been communicated that he was not entitled to payment of family pension as the absorbed officials are not entitled for family pension from the Central Government as per the Government of Indias decision under Rule 10 of CCS (Commutation of Pension) Rules.
9. The applicant has submitted a rejoinder application wherein he has countered all the assertions of the respondents restating all the facts mentioned in the OA. He has drawn a reference to OM dated 10.6.2008 of the Department of Pensions and Pensioners Welfare wherein it has been clearly provided that the authority issuing the order of substantive appointment to a civil service or post shall along with such order require in writing the Government servant to exercise the option under sub-rule 19(1) of CCS (Pension) Rules, 1972 within a period of one year from the date of joining the civil post or service. On the other hand, it is also the responsibility of the ex-serviceman so employed to give his option within a period of one year from the date of joining the service.
10. The applicant has further submitted in his rejoinder application that deputation is permissible even on a post where direct recruitment has been made. It is clear from the Memorandum dated 9.4.2002 of the SIB(MHA), Govt. of India, Kohima that the applicant was posting on deputation to NTPC and was absorbed two years hence. However, no entry was made to this effect despite the fact that he continued to be on the rolls of IB till absorbed in NTPC.
11. The respondents have further submitted an additional affidavit stating that limitation would apply to the subject and that if this case were to be allowed, it would open a pandora box and the court would be flooded with such requests.
12. The applicant has further submitted rejoinder affidavit stating that IB cannot be permitted to take advantage of its own wrong, as it had failed to comply with the mandatory provisions of Rule 19(2) of CCS(Pension) Rules for exercising the option.
13. We have carefully perused the pleadings of the parties as also the documents submitted by them. We have also listened to their oral submissions.
14. The basic issue to be decided is that whether it is incumbent upon the applicant to exercise his option on his re-employment under Rule 19(1)(a) on his own volition or it was incumbent upon the respondent organization to ask for the option from such ex-serviceman, within three months of his re-employment and ex-serviceman was duty bound to reply within one year of the re-employment. If this basic issue is decided, everything else would fall in place
15. In this regard, we would like to start with an inquiry as to what constitutes the emoluments. F.R.9(21)(a) defines Pay as under:-
(21) (a). Pay means the amount drawn monthly by a Government servant as-
(i). the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii).overseas pay, special pay and personal pay; and
(iii). any other emoluments which may be specially classed as pay by the President.
16. Accordingly, Rule 33 of the CCS (Pension) Rules, 1972 defines Emoluments to mean basic pay as defined in Rule 9 (21) (a) (i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practicing allowance granted to medical officer in lieu of private practice. Note 3 below Rule 33 of the CCS (Pension) Rules, 1972 further provides that if a Government servant immediately before his retirement or death while in service had been absent from duty on extraordinary leave or had been under suspension, the period whereof does not count as service, the emoluments which he drew immediately before proceeding on such leave or being placed under suspension shall be the emoluments for the purposes of this rule.
17. Rule 19 of the CCS(Pension) Rules deals with the counting of military service rendered before civil employment. Rule 19(1) provides general statement, which reads as under:- œ19(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 the pension already drawn, and the value received for the commutation of a part of military pension, and the amount of 3[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 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. 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 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 1[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.
18. Rule 19(2) of the CCS (Pension) Rules, 1972 further provides as under:-
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).
19. It is to be recalled that the applicant had been discharged from the Indian Navy after having rendered five years, four months and seven days of service and he joined and was re-employed on the post of JIO-I(Technical) w.e.f. 1.3.1968 under the Defence quota. At that time, CCS(Pension) Rules, 1972 had not come into existence and the position was being guided by the instructions and guidelines. It is also significant to note that letter of appointment issued by IB dated 28.11.1967 nowhere mentions regarding the option to be exercised in respect of reckoning of military services for pensionary purposes.
20. We have already made a reference to the decision of the Government of India vide OM dated 29.11.1965 regarding fixation of the initial pay in case of undue hardship by allowing one increment for each year of service. We have also taken note of the argument of the applicant that since the Naval post was a higher post, this clause ought to have been used, which has not been the case and that it was incumbent upon the appointing authority to make inquiries from the previous Defence employer in order to satisfy this duty casts upon the Government. We have further taken note of the fact that the words used in Rule 19(2)(a) of CCS(Pension) Rules, 1972 are abundantly clear that the onus rests upon the authority making re-employment to ask the ex-serviceman so re-employed to exercise the option under sub-rule(1). It has been claimed by the applicant that he has not drawn any pensionary benefits in respect of the service rendered in the Naval Forces for the afore stated period as would appear from his representations (at pages 31 and 65 of the paper book). The same has been admitted in the counter affidavit that as the applicant had not submitted his option within three months of his employment as JIO-I in IB w.e.f. 22.12.1973 and that he has submitted his case for counting of past Naval service for the purpose of pension in 2000 only, he was not being given any benefit for the services in question rendered with the Naval Forces (Page 135 of the paper book).
21. From the facts of the case, we do not find anywhere that the appointing authorities that being either the IB or the NTPC have required the applicant to exercise this option. To the contrary, we find that it is the applicant, who has been making efforts, rather relentlessly to get his period recognized. We have also take a note of the fact that the RTI information dated 10.6.2008 clearly provides as under:-
œWith reference to your application dated 11.04.2008 and received by the undersigned on 22.04.2008 on the captioned subject, the reply to you question at EE, FF and GG are as under:-
EE-The military service is considered towards Civil pension when military service is followed by civil service and on confirmation in the civil post if the individual concerned exercises his option for the same under Rule 19 of the CCS (Pension) Rules, 1972.
FF.-The authority issuing the order of substantive appointment to a civil service or post shall along with such order require in writing the Govt. servant to exercise the option under sub-rule 19(1) of CCS (Pension) Rules, 1972 within a period of one year from the date of joining the civil post or service. Thus it is the Civil Deptt. of re-employment who should inform the re-employed ex-serviceman regarding such option to be exercised but it is the responsibility fo the re-employed person, on being so informed by the Civil Deptt., to give such option in writing to the Civil Deptt. within one year of joining the service.
GG.-The competent Authority to relax on case to case basis any Rule of CCS (Pension) Rules, 1972 is Department of Pension and Pensioners Welfare, 3rd Floor, Lok Nayak Bhavan, New Delhi.
22. We, therefore, conclusively hold that it was incumbent upon the appointing authority before the CCS (Pension) Rules, 1972 coming into force, to give an upgradation after having ascertained the fact. It has omitted to do so. Rule 19 of the CCS(Pension) Rules, 1972 is not a sudden break on the past, but rather constitutes a continuity. This Rule clearly places the onus upon the employing organization. We further find that the respondent organization have omitted in their duties and therefore, they stand atoned for the same. We also conclusively reject the argument of the respondents that since the option had not been exercised in the first three months, it is not exercisable now. The argument of limitation has been conclusively rejected by the Honble High Court of Delhi in WP(C) No. 4552/2011 dated 19.02.2013 and, therefore, we do not devote much time to it. It emerges from the above that it is a case of fixation of pension. Had the period rendered by the applicant in Military (Naval) service been reckoned as provided under Rule 19 of CCS(Pension) Rules, the pension of the applicant would have definitely been higher. Therefore, under the case of M.R. Gupta Vs. UOI and Ors. (1996 AIR SC 669], the matter continues to be alive.
23. We also reject the argument of the respondents that if this case were to be allowed, it would open a Pandora box and so many persons would be applying for the same. We, on the contrary, hold that where the respondents have committed an act of injustice with the applicant by not giving him an opportunity to exercise his option and similar injustices have been committed with others, it would rather give an opportunity of such injustices being redeemed. One cannot be threatened to give a judgment in a particular manner merely because a large number of similar cases will have to be allowed.
24. In support of his claim, the applicant has relied upon on Sankar Nath Pramanik Vs. Union of India and Ors. decided by the Kolkata Bench of this Tribunal vide its order dated 28.04.1998. In this case also, a similar question was raised as to whether the applicant on his re-employment was entitled to get his former military service of 10 years, 6 months and 26 days reckoned as qualifying under Rule 19(1) of CCS(Pension) Rules, 1972. Again in this case, the respondents had not required the applicant to count his ex-military service. Of course, the subsequent stand of the respondents was that the applicant in this case had failed to refund the entire amount. The Tribunal in this case found that the authority, who had issued the order of substantive appointment, did not ask the applicant to exercise any option as required under Rule 19(2)(a) of the CCS(Pension) Rules, 1972, though the applicant had made applications for counting his past services. The Tribunal held in this regard as hereunder:-
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 and 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.
25. The case of Suresh Singh Vs. UOI and Others [WP(S) No. 4076 of 2008 decided on 26.6.2009] is a single bench decision of the Honble High Court of Jharkhand at Ranchi and, therefore, is not applicable as binding legal precedent.
26. In the case of Jaswant Singh son of Shri Chhajju versus Unknown [OA No.805-JK-2009 decided on 22.09.2011] the Chandigarh Bench of this Tribunal clearly held as under:-
5. It is not in dispute that under rule 19 of the CCS (Pension) Rules, 1972, 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, has rendered military service after attaining the of eighteen years, may opt either to continue to draw the military pension or retain gratuity received on discharged from military service, in which case his further military services shall not count as qualifying service or cease to draw his pension and refund (i) pension already drawn and (ii) the value received for the communication of a part of military pension and (iii) the amount of retirement gratuity including service gratuity, any, and count previous military service as qualifying service, in which case the service so allowed to count shall be prescribed to a service within or outside the employees unit or department in India or elsewhere which is paid from the Consolidated Fund of India etc. Rule 19 (2) provides that the authority issuing the order of substantive appointment to a civil service or post, shall require in writing the government servant to exercise the option under that sub rule within three months of date of issue of such order. It is, thus, clear that it was the duty of the respondent authorities to have ensured seeking option from the applicant. The respondents have not produced record or document to show that they had given such option to the applicant but he failed to do so. Rather, the evidence on record shows that the applicant has been making frantic efforts for counting of his military service towards civil service for the purpose of retrial dues. Thus, it can safely be presumed that the applicant had given the option for counting of military service well in time.
27. Again this view was supported by the Tribunal in Unknown Vs. Union of India through Head [OA No.757-HR-2010 decided on 23.08.2011] holding that it was the duty of the authority issuing the order of confirmation to bring to the notice of the Government servant concerned the provisions of Rule 18 or 19 so that he could exercise the option within the period of three months. The Tribunal further held that the aim and intention of the rules relating to counting of military service is to extend the benefit to the re-employed pensioner after they are discharged from the army and option has been left to the concerned employee/pensioner to choose either to draw military pension and civil pension separately or to claim benefit of military service in civil service for the purpose of pension by surrendering the benefit received from the Army.
28. The Central Administrative Tribunal-Hyderabad Bench in P.V. Subba Rao vs. The Senior Superintendent of Post [OA No.146/2004 decided on 29th July, 2009] has also supported this very contention. In this case, the Tribunal found that the applicant was admittedly an ex-serviceman, who had exercised option for counting his military service, following which the respondents had to give opportunity to the applicant to refund the amount received by him. The Tribunal held that the military service had to be counted in this case.
29. As regards the payment of arrears, admittedly, Rule 68 of CCS (Pension) Rules, 1972 provides interest on delayed payment of gratuity. However, it is also an admitted fact that interest is also payable on pension beyond the date that it has become payable. In this regard, attention is drawn to Rule 3(1)(0) of CCS(Pension) Rules, which defines pension to include gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief. It follows that interest is payable on pension as well. This is a regular tradition which is being followed and is supported by the decision of the Honble Punjab and Haryana High Court in A.J.Randhawa, Supdt. Engineer Vs. State of Punjab and Ors., (1997)117 PLR 6. This is further backed by decision of this Bench in Hargian Singh S/o Kartar Singh Vs. GNCTD and Ors., MANU/CA/0254/2008 dated 3.9.2008. Therefore, second revised prayers of the applicant also holds substance. As for the rate of interest, it is specified that interest is not to serve the usurious practices. It is paid in order to make Govt. of India cautious in its future conduct. Therefore, it cannot be anymore than what is permissible for the payment of gratuity.
30. In view of the afore discussions, we find that there is substantial merit in the contention of the applicant. Therefore, the OA is allowed in the following terms:-
The applicants military service from 20.08.1960 to 27.01.1966 is to be reckoned for fixation of pension and notional initial pay fixation is to be done on joining the IB by allowing one increment for each year of military service for fixing the pension.
The amount of arrears will be calculated accordingly and interest will be paid thereon at the same rate which is applicable in the case of gratuity and no more.
Other payments if any, will be made as per rules.
There shall be no order as to costs.