IMPORTANT POINT
The court ruled that past services in the territorial army can be counted for pension under the applicable rules at the time of joining, regardless of subsequent rule changes.

JUDGMENT :

1. A prayer for out of turn hearing of this case was made by learned counsel for the respondents by submitting that the respondent No.1-Jagdish Prasad is a pensioner, aged about 74 years.

2. Prayer was not opposed by learned counsel for the appellants-State, therefore, the matter was heard finally with the consent of the parties.

3. This appeal has been filed by the State aggrieved by the order dated 02.12.2019 passed by the learned Single Judge, whereby respondent-writ petitioner’s claim for counting the period of services rendered by him in the territorial army, has been directed to be counted for the purposes of pension.

4. Learned counsel appearing for the State would submit that the learned Single Judge misdirected itself in interpreting Rule 19 of the Pension Rules, 1996 (for short ‘the Rules of 1996’) in holding that the mandate of giving option would arise only when the employee was asked to give option. He would submit that the Rule is very clear and it obliges an employee to submit an option within a period of three months and if that option is not given, the claim for counting the past services for the purposes of pension could not be raised. According to him, inclusion of the past services rendered in another employment is a part of the statutory scheme of pension and, therefore, the same could be granted only when all the terms and conditions are fulfilled. He would further submit that though the respondent may have been appointed in the year 1983, he retired from the government service on 31.07.2011, when the Rules of 1996 had already come into existence and operation and were in force and, therefore, counting of past services rendered under another employment for the purposes of pension will have to be governed only by the provisions contained in the new Rules.

5. Next submission is that the respondent-writ petitioner was indolent and negligent and even after 1983, he did not raise any claim that services rendered by him in the territorial army should be counted. Even till his retirement, no such issue was raised. It is only one year after the retirement that he started raising such claim. Such belated claim ought not to be entertained and the claim was liable to be rejected only on this count.

6. The third and last submission of learned counsel for the appellants is that even assuming for the sake of argument that the respondent was entitled to count past services rendered in territorial army, his claim is doubtful because there are discrepancies with regard to the actual period of services rendered by him in the territorial army. While the petitioner claims that he has served for 9 years and 7 months, as per No Objection Certificate (Annexure-1), different period has been prescribed. Further in the certificate of discharge (Annexure-6), the period of services said to have been rendered with the territorial army is stated to be from 08.11.1969 to 13.12.1990. Therefore, on such discrepant dates, the respondent is not entitled to any relief. He further submits that embodied period of service is stated as 12 years, 1 month and 25 days, which is different than the period which has been claimed by the respondent while filing the application before the Tribunal. Therefore, without any clear factual foundation, the claim could not be allowed.

7. Per contra, learned counsel appearing for the respondent would submit that the respondent had joined the civil services in the year 1983, when the Rules of 1996 were not in force. At that time, the Rajasthan Service Rules, 1951 (for short ‘the Rules of 1951’) providing for counting the period of services in the army, were governed under Rule 175 and the respondent was clearly entitled to count his past services. He would further submit that the Tribunal committed an error of fact in recording the finding that the respondent-writ petitioner had not deposited the amount of gratuity/bonus after discharge, whereas the writ petitioner had joined the civil services while being