Re-employed ex-serviceman discharged on compassionate grounds without military retiral benefits ineligible to count service as qualifying for civil pension under Rule 19 CCS (Pension) Rules, requiring receipt and refund of such benefits.

Judgment :

Ranjan Sharma, J.

Petitioner [Ramesh Chand], a re-employed ex-serviceman, has approached this Court for the following reliefs:-

“7(i) That the impugned order dated 11.2.2015 may very kindly be quashed and set aside and the applicant may be held entitled for counting of approved military service towards pensionary benefits. Respondents may further be directed to calculate the pensionary benefits after adding the qualifying military service and arrears thereof may be paid to him alongwith interest at some nationalized ban’s rate. The Gratuity, Leave Encashment and Pension of the applicant may also kindly be revised and arrears thereof be paid to him.”

FACTUAL MATRIX:

2. Grievance of the petitioner is that he was enrolled as a Sepoy in Indian Army on 12.03.1968 and was discharged on 21.12.1972 after rendering four years and 284 days of military service and such discharge was on compassionate grounds, which is borne out from the certificate of service [Annexure A-2]. Admittedly, the petitioner had not been granted either pension, gratuity or other retiral benefits, for military service as his discharge was on compassionate grounds on his own request. After his discharge, the petitioner being an ex-serviceman was appointed as Clerk against reserved vacancy meant for ex-servicemen in the Department of Prosecution on 09.01.1976 he superannuated on 31.01.2005 from Prosecution Department. It is averred that the petitioner made representations on 11.11.2011 [Annexure A-5]; then on 09.09.2013, Annexure A-5 [Colly]; and then on 10.11.2004 and on 02.01.2015 [Annexure A-9] for claiming benefit of military service towards service rendered on re-employment in civil post for pensionary and other retiral benefits but his case was rejected by the Respondent-Department on 11.02.2015, Annexure A-10, on the ground that since the petitioner has not received any retiral benefits from Army for the military service rendered, therefore, unless and until the retiral benefits were received and the same were refunded, therefore, the benefit of Rule 19 (1) (b) and 19 (3) (b) of Central Civil Services (Pension) Rules, 1972 cannot be extended to the petitioner. The petitioner has claimed benefit of counting of military service as qualifying service, towards civil service so as to get higher retiral benefits.

STAND OF STATE AUTHORITIES IN REPLY-AFFIDAVIT:

3. Upon issuance of notice in O.A. No.582 of 2015, State Administrative Tribunal directed the respondents on 23.04.2015 to file response. Pursuant to issuance of notice, respondents filed a reply-affidavit dated 27.05.2015 of Director, Prosecution Department, Himachal Pradesh.

Perusal of Para-2 of Preliminary Submissions of reply-affidavit indicates that petitioner has not approached this Court for redressal of the grievances, with clean hands. It is averred in the reply-affidavit that claim of petitioner was turned down on two occasions earlier, i.e. 12.12.2005 and 01.08.2013, vide Annexure P-2/T and Annexure P-3 with the reply-affidavit. Moreover, in Para-3 of Preliminary Submissions of reply-affidavit, respondents have specifically stated that petitioner was about to superannuate on 31.10.2005 and since his re-employment on 09.01.1976 till the year 2005, no such grievance of counting of military service under Rule 19 of CCS [Pension] Rules was ever raised by the petitioner with the replying respondents. In Para 6 (5) of reply-affidavit on merits, the respondents have reproduced the mandate of Rule 19 of CCS [Pension] Rules. It