ORDER: Petitioner has filed this writ petition praying to issue a Writ of certiorarified mandamus calling for the records of the third respondents issued in NO.03178/SP/17/DG-1 dated 17.6.1992 and quash the same and consequently direct the respondent to pay the pension based on the military service of the petitioner.

2. In the affidavit filed in support of the writ petition, the petitioner would submit that he joined the Indian Army in the Madras Regiment on 13.1.1945 and he was discharged on 15.8.1961 on account of completion of the terms of engagement; that he was paid gratuity amounting to Rs.75 per month in lieu of pension of Rs.10 per month in lieu of pension of Rs.10 p.m.; that after his service in the army, he was re-employed as Record Keeper on 14.5.1955 in the Ministry of External Affairs, New Delhi; that he repaid the gratuity received for restoring the pension, which at the time of his discharge was Rs.10 and on enhancement thereafter, the present rate is Rs.1,200 and therefore, inspite of several representations made on his part to the second respondent with lawyer’s notice dated 5.7.1993 and 28.10.1993, the respondents by the impugned order dated 17.6.1992 rejected his representations exercising option for reservist gratuity in lieu of reservist pension, stating that the option once exercised for reservist gratuity in lieu of reservist pension cannot be revoked; that rejecting his further representation dated 22.5.1993 by their letter dated 29.5.1993, they gave the same reply to his counsel also by letter dated 9.11.1993. Calling the impugned order as arbitrary and in total ignorance of service rendered for 16 years and the rejection of the gratuity received by him made on 15.1.1987 in order to get he pension, the petitioner would seek the relief extracted supra.

3. In the counter affidavit filed on behalf of the respondents, it would be revealed that the petitioner was enrolled on 13.1.1945 as a boy and re-mustered into regular service with effects from 15.8.1946 on attainment of the age of 17 years for a term of 7 years with colour and eight years in reserve service; that he has transferred to the reserve service with effects from 15.12.1954 on completion of the colour service and finally discharged on completion of the term engagement with effects from 15.8.1961; that he had opted to receive reservist gratuity in terms of the special army instructions 2/S/54 instead of reservist pension at the time of this transfer to the pension establishment; that the option once exercised is supposed to be final and it could not be revoked under any circumstance and hence the individual’s request for reservist pension could not be acceded to; that his service documents have already been destroyed being a non-pensioner on expiry of 25 years 592 of Regulations for the Army, 1987; that as the individual was transferred to the position establishment and discharged with effect form 15.8.1961 is not covered under the provisions of this revised ruling on the subject; that the fact the petitioner had refused the amount of reserves gratuity to his re-employer does not entitled him to receive pension from military side; that it is also not known whether his former military service has been counted to pensionable service by his re-employer or otherwise. On such averments, the respondents would seek to dismiss the writ petition.

4. During arguments, the learned counsel appearing on behalf of the petitioner having brought forth the facts and circumstances connected to the claim of the petitioner pertaining to the writ petition, would submit that the respondents are restored from dying he option exercised by the petitioner for the reservist pension benefits in lieu of the reservist gratuity, since the repayment of the payment of gratuity amount had been received by the respondents. The learned counsel would also argue that it is a case of legitimate expectation, in such event and would further argue that fixing the cut-off date for the exerc

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