PARIHAR, J. - (1.) THE person, actively served the Indian Army for 34 years and retired on 18. 8. 1973, on attaining the age of superannuation, still knocking the doors of the Court to get his due pensionary benefits.
(2.) THE respondent - Ex-Subedar Naurang Ram Bugalia was enrolled in the Indian Army in Rajputana Rifles as an Infantry Soldier on 20. 5. 1936, wherein, he has served for a period of 10 years and 192 days from 20. 5. 1936 till 27. 11. 1946. After the Second World War been over, he was released from the Raj Rifles as a Subedar with minimum pensionary benefits of mustering out pension @ Rs. 45/- per month. The respondent - writ petitioner was again called for to join the Indian Army as Subedar during the period w. e. f. 31. 8. 1948 to 19. 5. 1951 due to hostility between India and Pakistan. The respondent was discharged w. e. f. 19. 5. 1951 after serving the Army for two years and 252 days. Subsequently, the services of the respondent were required by the Army Head-quarters (AG's Branch- MT-5) in Recruiting Organisation and was enrolled third time as a Jamadar- (now Niab-Subedar) on 28. 7. 1952. He was also promoted to the rank of Subedar while serving with the Recruiting Organisation w. e. f. 24. 12. 1963. On attaining the age of superannuation, he was discharged. from Recruiting Organisation w. e. f. 18. 8. 1973 after serving the Army for 21 years and 21 days. Though in the first spell of service i. e. from 20. 5. 1936 till 27. 5. 1946 he was allowed minimum pensionary benefits, as per rules, however, for the subsequent periods, he was not granted any pension, though he had served for more than 23 years in the Indian Army for the subsequent period also. The initial mustering out pension was enhanced from time to time and was further stepped up to Rs. 1050/- per month w. e. f. 1. 3. 1992. Arrears of stepping up of the pension were also paid to the respondent. Subsequent stepping up of the pension was recalled by the authorities concerned on the ground that the respondent petitioner did not complete 21 years of qualifying service, as such, a recovery of the sum already paid was ordered. The respondent petitioner was informed accordingly by the State Bank of Bikaner & Jaipur vide its letter dated 17. 3. 1994. Aggrieved by the action of the appellants in not paying the pension for the entire period of the service and further recovery of the amount of stepping up, the respondent petitioner filed a writ petition before this court on 23. 3. 1994 with the following prayers:- " (a) By an appropriate writ, order or direction the respondents may be directed to grant pension applicable to the petitioner by virtue of his rank of Subedar and length of service w. e. f. 18. 8. 1973. When the petitioner did not opt to count his former service he is entitled for 2nd pension for Subedar for 23 years. Further, 15% interest on arrears of long outstanding pensionary benefits, be ordered for payment within a period of 60 days from the date of decision. (b) By an appropriate writ, order or direction, the petitioner may be granted an exemplary damage in terms of money to the tune of Rs. 1 lac and the same may be recovered from the concerned officer found guilty of negligence, in performance of official duties in the Records Office the Jat Regiment, Bareilly, after a due inquiry into the facts and circumstances of the case. (c) By an appropriate order or direction the respondent No. 2 may kindly be advised to release the former service pension of the petitioner, which had arbitrarily been stopped and illegal recovery in lump sum made from the pension account of the petitioner at State Bank of Bikaner & Jaipur, CHIRAWA, Distt-Jhunjhunu (Raj ). (Annx. 5) is referred for the perusal of the Hon'ble Court. " In reply to the writ petition, it was submitted on behalf of the appellants - Union of India that as per para 213 of Pension Regulations Part II 1940, the respondent was not entitled for pension for the subsequent period since he was allowed to draw his pension granted for the earlier period in addition to pay and allowances admissible to Junior Commissioned Officers (JCOs) enrolled in Recruiting Organisation. It has fur- ther been submitted that since the respondent had not opted for pension while emplo- yed in the Recruiting Organisation at the relevant time, he was not entitled for pension for the period from 28. 7. 1952 till 18. 8. 1973 i. e. the period of 21 years and 21 day. The learned Single Judge, while considering, the entire facts and circumstances, allowed the writ petition with the directions, which are reproduced as under:- "as a result of the above discussion, the writ petition is allowed and the respondents are directed to release the consequential benefits such as gratuity and pension including the arrears of pension and revised pension to the petitioner to which he is entitled consequent upon his retirement from defence services on attaining the age of superannuation w. e. f. 18. 8. 1973 in accordance with the Rules. As regards the pension he will be entitled to payment of the same including the arrears from due date after calculating revised pension at the rate of Rs. 375. 00 per month w. e. f. 1. 1. 1986 onwards. There will be no order as to costs. The said amount as admissible to the petitioner in accordance with the Rules as applicable to petitioner's case shall be payable within a period of eight weeks from the date of receipt of certified copy of this order. It is further directed that while computing the arrears of pension including the benefit of stepped up or enhanced pension, the amount as admissible to the petitioner on account of pensionary benefits for the period of three phases as referred to above shall not be separately calculated on phasewise basis but shall be consolidated and merged together and thereafter the final figure shall be arrived at after calculating the benefits of all the three phases as take together and as admissible to the petitioner in accordance with the Rules. The petitioner shall be entitled to the benefit of past service rendered to the respondents in this regard. "
(3.) THUS, aggrieved by the order of the learned Single Judge, the present appeal has been filed by the appellants. The only contention as raised by Mr. Rafiq, learned counsel for the appellants, has been that as per relevant rules, since the respondent had not opted for pension at the time of his re-employment in the Recruiting Organisation and was drawing salary in addition to pension for his initial period of 10 years and 192 days, he was not entitled for any pensionary benefits for the subsequent periods, moreso, when there were two breaks in service first in the year 1946 and then in the year 1951. After having considered the submissions made by learned counsel for the parties, we have carefully gone through the material on record as also the-relevant provisions of the Rules. ;