The main legal point established in the judgment is that the entitlement to restoration of the commuted value of pension is based on the relevant legal provisions and the date for restoration is a crucial factor in determining the respondent's rights.

( 1 ) THE issue involved in the present case is really a short one. The respondent No. 2 herein joined the petitioner in the Ministry of Health and Family welfare on 28th March, 1946 and after rendering 33 years and 11 months service, he was absorbed in hindustan Zinc Ltd. , Udaipur, a Public Sector undertaking on 17th March, 1979. On his absorption he is deemed to have retired from Government service. He was asked to exercise his option either for receiving pension with Death-cum-retirement gratuity (DCRG) or for receiving gratuity and lump sum/amount in lieu of pension. He opted for the second, namely, gratuity and lump sum amount in lieu of pension. It was given to him although he was not subjected to medical examination as is required under Rule 18 of the Commutation of Pension Rules, 1981. Nobody noticed this lacuna. Although the respondent No. 2 s commutation date was 15th March, 1980, he was paid commuted value of full pension on 8th January, 1981.

( 2 ) NORMALLY, Government servants on retirement, if they opt for lump sum, their 1/3rd commuted portion of pension is restorable after 15 years from the date of such option. Such benefit was earlier not admissible to those Government servants who are deemed to have retired on their permanent absorption in PSUs. However, the Supreme Court in its decision in Welfare association of Absorbed Central Govt. Employees in public Enterprise and other Vs. Union of India and anr. as well as P. V. Sundara Rajan and Anr, Vs. UOI reported in (1996) 33 ATC 188 held that even this category of Government servants would be eligible for restoration of l/3rd commuted portion of pension, 15 years from that date. This decision was rendered on 15th December, 1995.

( 3 ) ACTING on this decision, the Government also issued OM dated 30th September, 1996 giving effect thereto. As a result the respondent No. 2 herein became entitled to l/3rd commuted portion of pension. Since the respondent No. 2 s commutation date was 15th March, 1980 this l/3rd commuted pension was due to be restored on 15th March, 1995. However, the petitioner permitted the same to the respondent No. 2 only from 8th January, 1996. The period of 15 years was computed from the date he was given commuted full pension, i. e. , 8th january, 1981 and not the commutation date i. e. 15th march, 1980. The respondent no. 2 felt aggrieved by this action of the petitioner. The respondent No. 2 herein successfully challenged this decision of the petitioner herein by filing Original Application No. 1972/2000 inasmuch as vide impugned Judgment dated 30th may, 2001 allowing his application, the learned tribunal has directed restoration of l/3rd commuted value to be reckoned w. e. f. 15th March, 1995. The relevant portion of the impugned Judgment, to this effect, is as under:

"it is evident that the commutation of pension becomes absolute only on the date of his commutation date i. e. 15. 3. 80 and not from 8. 1. 81. Restoration of 1/3 of the commuted value should be reckoned w. e. f. 15. 3. 1995 and the respondents cannot seek to gain advantage of their own mistake of not ordering the medical examination and claim that applicant should suffer for the same. Even otherwise effectively the restoration of 1/3 of commuted value gets advanced by just eight month i. e. January 1996 to march 1996. This is the only manner. in which the applicant can be given what is his due. "

( 4 ) WHILE, allowing the Original application, last part of the judgment contains the following directions:

"in the result the application succeeds and ie accordingly allowed. The respondents are directed to recover the lump sum amount of commuted value and he be permitted to exercise fresh option and be paid pension from the date of his retirement to date. This should be done within a period of two months from the date of receipt of copy of this order. "

( 5 ) MR. SANJAY Jain, learned counsel appearing for the petitioner. Union of India, fairly stated that he had no quarrel