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2010 Supreme(Pat) 1078
PATNA HIGH COURT
Navin Sinha and Dinesh Kumar Singh JJ.
Prakash Chandra Kakkar
Versus
Union Of India
CIVIL WRIT JURISDICTION CASE No. 7222 of 2003
Decided On : MAY 3, 2010
Once a conscious decision is made regarding pension options, it cannot be revisited after a significant passage of time.
Headnote:
Pension - Date of Absorption - - [Controller of Defence Accounts Act, Section 5(1); Mica Trading Corporation Act, Section 7(2)] - The court discussed the petitioner's claim to re-exercise his option for pension commutation after the date of his absorption was changed. The court emphasized that the petitioner's conscious decision to opt for commuted pension after his absorption in 1984 was final and could not be revisited, especially after the passage of seven years. The court held that the petitioner's claim was barred by gross and inordinate delay and warranted no interference.
Fact of the Case:
The petitioner, an Auditor under the Controller of Defence Accounts, was sent on deputation to the Mica Trading Corporation and subsequently absorbed in its services. He later sought to re-exercise his option for pension commutation after the date of his absorption was changed.
Finding of the Court:
The court found that the petitioner's claim was barred by gross and inordinate delay and warranted no interference.
Issues: The main issue was whether the petitioner was entitled to re-exercise his option for pension commutation after the date of his absorption was changed.
Ratio Decidendi: The court held that the petitioner's conscious decision to opt for commuted pension after his absorption in 1984 was final and could not be revisited, especially after the passage of seven years.
Final Decision: The writ petition was dismissed.
Navin Sinha, and Dinesh Kumar Singh, JJ.
1. Heard learned Counsel for the petitioner and the learned Counsel for the respondents.
2. The petitioner was holding the post of Auditor under the Controller of Defence Accounts. He was sent on deputation on 19.6.1981 to the Mica Trading Corporation (hereinafter called MITCO), a Government of India Undertaking, for a limited duration. Subsequently he came to be absorbed in the services of MITCO with the concurrence of the Central Government on 17.10.1984 with effect from 19.6.1984. In pursuance thereof he exercised his option for commutation of pension in 1991 which came to be accepted by the Central Government and his commuted pension was paid to him. He then agitated shifting of his date of absorption before the Central Administrative Tribunal, Patna Bench, registered as O. A. No.29 of 1992. By order dated 15.2.1994 the date of his absorption was shifted from 19.6.1984 to 1.6.1985. Subsequently the Central Government issued a notification dated 14.6.1994 notifying his date of absorption as 1.6.1985. The petitioner then came to this Court in C. W. J. C. No.1517 of 2001 with the claim that he had a right to re-exercise his option again as to whether he would opt for pro-rata pension or commutation of pension in view of the fresh date of absorption fixed. The writ petition was dismissed on 14.12.2001 on grounds of remedy available before the Central Administrative Tribunal, Patna Bench, Patna. He then filed O. A. No.189 of 2001 which has been dismissed leading to institution of the present application.
3. Counsel for the petitioner contended that notwithstanding the fact that the petitioner had exercised his option for commutation of pension in context of absorption with effect from 19.6.1984 no sooner that the date of absorption was changed to 1.6.1985 the petitioner was entitled to be given the option afresh whether he wanted to go opt for pro-rata or commuted pension. The scheme for pro-rata pension and commuted pension were different for the two dates of absorption i. e.19.6.1984 and 1.6.1985. While the former date of absorption gave him a better choice of commuted pension, the latter gave him a better choice of pro-rata pension. Therefore, before he was to be denied a more advantageous position he was required to be given notice for fresh exercise of option. In absence of any fresh option exercised in terms of the fresh date of absorption he automatically came in the category of a person who has opted for pro-rata pension. Strong reliance has been placed on the orders in O. A. No.29 of 1992 that the respondents were required to treat him as absorbed with effect from 1.6.1985 with all consequential benefits of salary and pension etc. flowing therefrom. The contention, therefore, was that if the petitioner is a person absorbed from 1.6.1985 he has to be treated as a person absorbed from that date for all practical purposes as the date of absorption cannot be 1.6.1985 for certain other purposes and for the purpose of commutation his date of absorption would be 19.6.1984. That creates an anamolous position.
4. Counsel for the Union of India opposing the application emphasized that the option for commutation was exercised by the petitioner in 1991 after absorption on 19.6.1984. He accepted the monetary benefits. In O. A. No.29 of 1992 he did not stake any claim for his right to revision of his option from commuted pension to pro-rata pension but only sought change in the date of absorption. The issue of commutation of his pension especially after payment made and accepted attained finality and was not questioned before the Tribunal also. The date of absorption may change but that would not necessarily vest in him a claim for exercise of fresh option. Even if he had a right to do so, he consciously opted not to exercise such right. Moreover consequent to the order of the Tribunal consequential orders were issued by the Central Government on 14.6.1994. The petitioner continued t
