RAVINDER KUMAR BARWAL Vs. STATE OF HIMACHAL PRADESH
LAWS(HPH)-2021-3-56
HIGH COURT OF HIMACHAL PRADESH
Decided on March 22,2021

Ravinder Kumar Barwal Appellant
VERSUS
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

Sandeep Sharma,J. - (1.) Precise question, which has fallen for adjudication in the case at hand, is, "whether the option once exercised in terms of rule 19 of the CCS (Pension) Rules, 1972 (hereinafter, 'Rules') to count past military service, can be withdrawn at a subsequent stage, that too after lapse of about 10 years or not?"
(2.) For having birds' eye view of the matter, certain undisputed facts as emerge from the record are that the petitioner, after having rendered service in the Indian Air Force, came to be reemployed as a Assistant District Attorney in the Department of Prosecution in the year 2001 against the post reserved for the ex-serviceman category. Petitioner joined against the aforesaid post in the Department of Prosecution on 28.12.20001. On 4.10.2002, petitioner opted to count his previous military service as qualifying service for the purpose of retirement benefits on account of military service on his superannuation in terms of rule 19 of the Rules. Vide letter No. DPr-B(3)3/2001-4314 dated 3.5.2003, Director Prosecution, Himachal Pradesh called upon the petitioner to deposit /refund amount received by the petitioner on account of commutation amount, interest on commutation, gratuity, interest on gratuity and pension received during re-employment. Besides above, vide communication dated 21.5.2003 (Annexure R-5 of the reply), District Attorney, Sirmaur at Nahan, Himachal Pradesh while acknowledging the letter written by the petitioner disclosing therein factum with regard to receipt of Rs. 1,93,678 also furnished /made available detail of the payment proposed to be recovered by the 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 the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty-six in number, the first instalment beginning from the month following the month in which he exercised the 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 the rate of Rs.5,147 per month shall be recovered from his salary for the month of May, 2003 paid in June, 203. After issuance of aforesaid communication, petitioner vide communication dated 25.9.2003, (Annexure P-2) addressed to the Director of Prosecution, furnished complete details with regard to the amount received by him on account of pension, gratuity and commutation of pension etc. and informed the Department that a total sum of Rs. 2,99,118/- received by him from his previous service rendered in the Indian Air Force stands deposited and said factum qua aforesaid deposit be recorded in his service record. Vide communication dated 23.3.2004 (Annexure P-3), Senior Deputy Accountant General (A & E), Himachal Pradesh informed the District Attorney, Sirmaur at Nahan that sums of Rs.90,735/- and Rs. 1,98,086/- stand received in July, 2003 (7/2003) through Challans Nos. 7 and 16. Vide communication dated 20.9.2004, Annexure P-5, District Attorney Sirmaur informed the Director of Prosecution Himachal Pradesh that the petitioner has refunded the amount of commutation and pension with interest to the State of Himachal Pradesh and also enclosed with the aforesaid communication verification certificate issued in favour of the petitioner by Accountant General (A & E) Himachal Pradesh. It appears that the office of Director of Prosecution, after having received aforesaid communication from the office of District Attorney, Sirmaur, sent a letter No. DPr-B(3)3/2001- 9102 dated 20.11.2003, to the office of Additional Chief Secretary (Home) to the Government of Himachal Pradesh, who in turn vide letter No. Home(Prose)B(3)3/2001 dated 24.11.2003 (Annexure P-4), addressed to the Director of Prosecution advised the Department to get the amount refunded by the petitioner recalculated/authenticated from the DDO concerned in the prescribed manner, so that whole amount along with interest is refunded to the State complete in all respects, as per prevalent Government instructions. After having received aforesaid instructions from the Additional Chief Secretary (Home) to the Government of Himachal Pradesh, Director of Prosecution directed the District Attorney Sirmaur vide communication dated 16.10.2004 (Annexure P-6) to supply the complete details with regard to the amount refunded by the petitioner. However, it appears that before aforesaid information could be furnished to Director of Prosecution by the District Attorney Sirmaur, petitioner, vide communication dated 10.11.2010 (Annexure P-7), prayed for withdrawal of option exercised by him under Rule 19 of CCS (Pension) Rules, 1972. In the aforesaid communication, petitioner claimed that though he after exercise of option under Rule 19 of the CCS (Pension) Rules had deposited Rs.2,99,118/- through different vouchers in the year 2003 but since his option under Rule 19 of the Rules has not been accepted by the Government despite lapse of 7 years and no Notification in this regard has been published, he should be permitted to withdraw his option. Besides above, petitioner claimed that he was intimated that the rate of interest is not 6% but it was to be calculated at the rate of interest applicable to GPF accumulations plus 2% penal rate of interest, which is on higher side, as such, while expressing his inability to deposit another sum of Rs.20,000/-, petitioner prayed for withdrawal of option. Vide communication dated 10.8.2011 (Annexure P-8), Under Secretary (Home) to the Government of Himachal Pradesh, asked the Director of Prosecution, Himachal Pradesh to inform whether the required amount of Rs.20,000/- has been deposited with the Government treasury till date or not and, if not, what action has been initiated by the concerned office. However, the petitioner again vide communication dated 16.9.2011 (Annexure P-9), addressed to the Director of Prosecution, while expressing his inability to pay the additional amount, prayed that the option given by him earlier may be treated as withdrawn not being financially beneficial to him. In response to the aforesaid representation filed by the petitioner, Director of Prosecution, vide communication dated 12.7.2012 (Annexure P-10), informed the petitioner that the matter was taken up with the Government and vide letter No. Home(Prose)-B(3)-3/2001, dated 3.7.2012, it has been conveyed that once the petitioner has already exercised the option to count his past military service under Rule 19 of the Rules, same has attained finality and it cannot be withdrawn at this stage after a lapse of ten years. Petitioner, despite having received aforesaid decision from the department, made representations dated 6.5.2013 and 20.2.2018, Annexures P-11 and P-12, respectively, seeking therein permission of the Government to withdraw the option exercised by him under Rule 19 of the Rules, at the time of his reemployment. Office of Director of Prosecution, vide communications dated 1.8.2018 (Annexure P-14)and 10.8.2018 (Annexure P-13), reiterated that the option once exercised cannot be withdrawn.
(3.) In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for the following main reliefs: "a) That the impugned orders dated 12-07-2012 (Annexure P10) and orders dated 03.07.2012, 31.08.2013 and 01.08.2018 (Annexure P14) may kindly be ordered to be quashed and set-aside and consequently the option of the petitioner under Rule 19(1) may kindly be declared to have been validly withdrawn in the interest of justice. b) That the respondents may be directed to refund the amount of Rs.2,99,118/- deposited by the petitioner in the year 2003 along with interest @ 12% from the date of deposit by the petitioner with the respondents till its refund." ;


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