2021 Supreme(HP) 51

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Ravinder Kumar Barwal - Petitioner
Versus
State of Himachal Pradesh and others - Respondents
CWP No. 1803 of 2020
Decided On : 22-03-2021

Headnote:

CCS (Pension) Rules, 1972 – Rule 19 – Pension – Withdrawal of Services – Petitioner joined against the aforesaid post in the Department of Prosecution – Petitioner opted to count his previous military service as qualifying service for purpose of retirement benefits on account of military service on his superannuation in terms of rule 19 of Rules. – Vide letter Director Prosecution, Himachal Pradesh called upon petitioner to deposit /refund amount received by petitioner on account of commutation amount, interest on commutation, gratuity, interest on gratuity and pension received during re-employment. – Besides above, vide communication District Attorney, Sirmaur at Nahan, Himachal Pradesh while acknowledging letter written by petitioner disclosing therein factum with regard to receipt of Rs. 1,93,678 also furnished /made available detail of payment proposed to be recovered by Department in terms of rule 19(3) (a), wherein it has been specifically provided that a Government servant, who opts for Clause (b) of sub-rule (1) shall be required to refund pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, first instalment beginning from month following month in which he exercised option. – Vide aforesaid communication, office of District Attorney, Sirmaur also informed the petitioner that a sum of Rs. 5,150/- on account of first installment and remaining 19 installments at rate of Rs.5,147 per month shall be recovered from his salary for month of May – Whether option once exercised in terms of rule 19 of CCS (Pension) Rules, 1972 to count past military service, can be withdrawn at a subsequent stage, that too after lapse of about 10 years or not – Held, Court finds no force in claim of petitioner that option exercised by him under Rule 19 was never accepted by Department, rather, material available on record suggests that Department, after having accepted option exercised by petitioner under Rule 19 permitted him to deposit a sum of Rs.2,99,118/- and subsequently on having found deficiency in amount, again called upon petitioner to deposit Rs.20,000/-. – Writ petition filed by petitioner suggests that he while expressing his inability to deposit additional amount of Rs.20,000/- informed Department that since he has already received substantial amount on account of military pension, it would not be beneficial for him to exercise option under Rule 19(1) of Rules. – However, aforesaid excuse rendered on record by petitioner, by no stretch of imagination, can be said to be reasonable and plausible enabling the Department to accept his request for withdrawal of option exercised by him since there is no specific provision, under the rules for withdrawal of option once exercised. – Court is of view that since there is no specific provision contained under Rule 19, making it incumbent upon Department to accept option in writing coupled with fact that there is no provision with regard to withdrawal of option once exercised by him, prayer made in instant petition cannot be allowed – It is quite apparent from averments contained in petition that petitioner after having found benefits attached to military service more beneficial has now purposely decided to withdraw his option which otherwise is not permissible at this stage – Moreover, despite Department asking petitioner time and again to deposit additional amount , it is petitioner who chose not to deposit same, as such, now, he cannot be allowed to take benefit of his own wrongs, by claiming that since entire amount in terms of option exercised by him was not deposited, same has not attained finality or that same can be withdrawn at this stage – There is yet another aspect of matter viz., in case petitioner is permitted to withdraw his option, natural corollary would be that petitioner would be stripped off, of benefits received by him, by counting past military service as qualifying service for civil post, which may include seniority and promotion and, if at this stage, these benefits are undone, it would result in unsettling a settled position, i.e. re-determination of seniority, promotions etc. – Otherwise also, it is settled law that in service matters, a person should approach court of law within a reasonable time, but in the case at hand, petitioner has approached this Court for withdrawal of option exercised by him in year 2001, after around nineteen years i.e. in year 2020, as such, writ petition at hand is hopelessly barred by limitation – Court find no merit in present petition and same is dismissed – Petition Dismissed