Aparesh Kumar Singh, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner had earlier also approached this Court in W.P. (S) No. 6112 of 2011 with a prayer to give him seniority by counting the military service rendered by him prior to his appointment as Correspondence Clerk in the office of Executive Engineer, Works Division, Bhagalpur on 12.05.1977 relying upon Rule 87(1)(a) and 2(a) of the Jharkhand Pension Rule, 2001. He also sought consequential benefits after counting the military service in the matters of 1st Time Bound Promotion and 2nd ACP. He has also prayed that his representation preferred before the concerned respondent for the aforesaid relief be directed to be disposed of. The petitioner was said to be in the military service for a period from 26.10.1967 to 17.04.1977 before he joined the Civil post pursuant to his appointment on 12.05.1977. The respondent - Engineer -in -Chief -cum -Additional Commissioner -cum -Special Secretary, Rural Works Department, Government of Jharkhand has rejected his representation vide impugned order dated 01.06.2012, Annexure -4. The petitioner has challenged the said order in the present writ petition while reiterating the prayer made in the earlier writ petition. For Considering the claim of petitioner relating to counting of military service after his re -employment on the present post, it is proper to refer to the Rule 87 under Section (III) of Chapter -V, which deals with service qualifying for pension. Section III thereof is in respect of counting military service toward civil pension. For better appreciation, provisions of Rule 87 is quoted hereinunder: - "87. A Government servant who is re -employed in Civil Service or post before attaining the age of superannuation and who, before such re -employment, had rendered regular military service after attaining the age of eighteen years, may, on his confirmation in a Civil service or post, opt, either: (1)(a) to continue to draw the military pension or retain gratuity received on discharge from military service in which case his former military service shall not count as qualifying service; or (b) to refund the pension or gratuity and count the previous military service as qualifying service in which case the services so allowed to count shall be restricted to a service, within or outside the employee's unit or department in India or elsewhere, which is paid from the Consolidated Fund of India or for which pensionary contribution has been received by the Government. (2)(a) The option under sub -rule (1) shall be exercised within three months of the date of issue of the order of substantive appointments to a Civil service or post on re -employment or if the Government servant is on leave on that day, within three months of his return from leave, whichever is latter. (b) If no option is exercised within the period referred to in clause (a), the Government servant shall be deemed to have opted for clause (a) of sub -rule (1). (3)(a) A Government servant who opts for clause (b) of sub -rule (1) shall be required to refund the pension or gratuity received in respect of his earlier military service, in monthly installment not exceeding thirty -six in number, the first installment beginning from the month following the month in which he exercised the option. (b) The right to count previous service as qualifying service shall not revive until whole amount has been refunded. (4) In the case of a Government servant who, having elected to refund the pension, or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the death -cum -retirement gratuity which may become payable to his family. (5) When an order is passed under this rule allowing previous regular military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the military and civil service."
(3.) PERUSAL of the said Rule indicates that the Government Servant, who is re -employed in Civil Service or post before attaining the age of superannuation and who had rendered regular military service after attaining the age of eighteen years may on his confirmation in a Civil service or post, opt, either: (1)(a) to continue to draw the military pension or retain gratuity received on discharge from military service in which case his former military service shall not be counted as qualifying service; or (b) to refund the pension or gratuity of military service for counting the previous military service as qualifying service on his re -employment on civil post.;