Ramesh Chand Vs State of Hp

REPORTABLE

2025:HHC:35190

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWPOA No.4976 of 2019 Reserved on : 06.06.2025 Announced on: 15.10.2025 __________________________________________________________ Ramesh Chand .....Petitioner Versus State of Himachal Pradesh & another …...Respondents Coram Hon’ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes. For the petitioner: Mr. Karan Singh Parmar, Advocate. For the respondents: Mr. Pranay Pratap Singh, Additional Advocate General. Ranjan Sharma, Judge Petitioner [Ramesh Chand], a re-employed ex-serviceman, has approached this Court for the following reliefs:-

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“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.”

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FACTUAL MATRIX:

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2. Grievance of the petitioner is that he

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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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

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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.

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STAND OF STATE AUTHORITIES IN REPLY-AFFIDAVIT:

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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.

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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

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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 is further averred in Para 6 (5) of reply-affidavit that since the petitioner has served in Indian Army for less than five years and was discharged on his own request on compassionate grounds and had not received any pensionary benefits, therefore, in these circumstances, benefit of counting of military service towards civil service for counting military service as qualifying service cannot be granted/extended to the petitioner. In Para 6(7) of reply-affidavit, the respondents have reiterated that case of the petitioner was rejected on

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11.02.2015, Annexure A-10, as benefits could not be extended dehors Rule 19 of CCS [Pension] Rules. In this background, the prayer for dismissal of writ petition has been made.

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REBUTTAL BY PETITIONER:

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4. Petitioner filed a rejoinder reiterating

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the stand taken in writ petition. In Para 6 (1 to 5) of rejoinder, petitioner has specifically stated that since benefit of military service has been extended to the petitioner towards pay fixation and seniority, then, the benefit of military service has to be extended for treating the military service as qualifying service for pension also.

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5. Heard, Mr. Karan Singh Parmar,

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Learned Counsel for the petitioner and Mr. Pranay Pratap Singh, Learned Additional Advocate General, for the respondents.

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6. Before adverting to the contentions of the Learned Counsel for the petitioner, it is necessary to have a re-cap the provisions of Rule 19 of CCS [Pension] Rules, 1972, governing the situation for counting military service as qualifying service towards civil service endered

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on re-employment, in the following terms:-

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“19. Counting of military service rendered before civil employment

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(1) A Government servant who is re-employed in a civil service or post before attaining the age of superannuation and who, before such re-employment, had rendered military service, may, on his confirmation in a civil service or post, opt either –

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(a) to continue to draw the military pension or retain gratuity received on discharge from military service, in which case his former military services shall not count as qualifying service; or

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(b) to cease to draw his pension and refund -

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(i) the pension already drawn, and

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(ii) the value received for the commutation of a part of military pension, and

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(iii) the amount of [retirement gratuity] including service gratuity, if any,

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and count previous military service as qualifying service, in which case the service 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 :

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Provided that -

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(i) the pension drawn prior to the date of re-employment shall not be required to be refunded.

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(ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on re-employment shall be refunded by him,

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(iii) the element of pension equivalent of gratuity including the element of commuted part of pension, if any, which was taken into account of fixation of pay shall be set off against the amount of¹ [retirement gratuity] and the commuted value of pension and the balance, if any, shall be refunded by him.

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EXPLANATION. –

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In this clause, the expression which was taken into account ' means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial reemployment, and the expression which was not taken into account ' shall be construed accordingly.

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(2) (a) The authority issuing the order of substantive appointment to a civil service or post as is referred to in subrule (1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of date of issue of such order, if he is on leave on that day, within three months of his return from leave, whichever is later and also bring to his notice the provisions of Clause (b).

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(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).

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(3) (a) 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.

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(b) The right to count previous service as qualifying service shall not revive until the whole amount has been refunded.

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(4)

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In the case of a Government servant, who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refunded, the unrefunded amount of pension or gratuity shall be adjusted against the [death gratuity] which may become payable to his family.

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(5) When an order is passed under this rule allowing previous 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 services.”

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ANALYSIS:

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of facts and circumstances and material on record,

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this Court is of the considered view that rejection orders dated 11.02.2015, Annexure A-10, and action of the Respondent-Department in not counting the military service as qualifying service towards civil service rendered on re-employment, does not suffer from any illegality, infirmity or perversity, for the following reasons:-

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7(i). Rule 19 of CCS [Pension] Rules was framed by the Rule Making Authority with a definite object and purpose. The Rule Making Authority

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intended that benefit of military service is to be counted as qualifying service towards civil service

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rendered on re-employment, only in cases of those military personnel, who were discharged from military service, after receiving retiral benefits accruing from military, i.e. military pension, military gratuity, commuted military pension or other retiral benefits, in lieu of service rendered. The object of Rule 19 of CCS [Pension] Rules is that benefit of military service is to be counted as qualifying service towards qualifying service rendered on reemployment, so as to give an advantage or weightage to the military personnel on re-employment, towards civil service, so as to enable him to fulfill minimum qualifying service for pension. In the instant case, admittedly, the petitioner has rendered about four years’ of military service, i.e. w.e.f. 12.03.1968 to 21.12.1972. Moreover, the discharge of petitioner from military service on 21.12.1972 was not in lieu of exigencies of service, but was on his own request on compassionate grounds. In these circumstances, once the

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petitioner was discharged from military service, on compassionate grounds, on his own request, without

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receiving military pension, military gratuity, commuted military pension or other retiral benefits, then, the petitioner has neither any right nor locus standi to seek counting of military service as qualifying service for civil service for retiral benefits. In these circumstances, benefit of counting of military service, cannot be extended to the petitioner dehors Rule 19 of CCS [Pension] Rules.

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7(ii). Perusal of Rule 19 of CCS [Pension] Rules indicates that benefit of counting military service as qualifying service towards civil service rendered on re-employment till superannuation is to be extended with certain pre-conditions. Perusal of Rule 19 (1) (b) of CCS [Pension] Rules indicates that benefit of counting of military service is to be extended only to military pensioners who have earned and received military pension, military gratuity and commuted military pension for military service rendered as per Military Act and Rules. Further, perusal of Rule 19(4) of CCS [Pension] Rules further indicates that extension of counting of military service, pre-supposes that a military pensioner

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has to refund military pension, military gratuity and unless and until, military benefits are refunded, the benefit of military service cannot be counted as qualifying service towards civil service for pensionary benefits. In these circumstances, once the provision of Rule 19 of CCS [Pension] Rules is clear, unambiguous and has definite intent and purpose to extend the benefit of military service as qualifying service towards civil service, only to those military personnel, who receives military pension, military gratuity, commuted military pension, then, the petitioner who has neither completed or rendered military service which qualifies for military pension, military gratuity or commuted military pension and no benefit has been received by him for military service as the petitioner had sought discharge from military on compassionate grounds and that too on his own request, then, the benefit of military service has rightly been denied to the petitioner. Permitting the petitioner to count military service towards civil service, cannot be permitted or granted

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dehors the intent and object of Rule 19 of CCS [Pension] Rules.

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7(iii). Further, the petitioner had raised a grievance earlier for counting military service

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and the claim of petitioner was rejected on 12.12.2005, Annexure P-2/T and then again on 01.08.2013, Annexure P-3, with the reply-affidavit. Petitioner has not laid a challenge to earlier rejection orders dated 12.12.2005, Annexure P-2/T and 01.08.2013, Annexure P-3, in these proceedings. Failure to assail the earlier rejection orders, is sufficient enough to disentitle the petitioner for the reliefs, on the ground of suppression of material facts and by approaching this Court with un-clean hands. In these circumstances, benefit of military service cannot be granted in view of the earlier rejection orders dated 12.12.2005, Annexure P-2/T and 01.08.2013, Annexure P-3, which still hold the field and therefore, the claim in the instant case, cannot be

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accorded to.

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7(iv). Admittedly, the respondents have rejected the case of the petitioner earlier on 12.12.2005, Annexure P-2/T and 01.08.2013, Annexure P-3, and the same was again rejected on 11.02.2015, Annexure A-10, with similar averments as contained in earlier rejection orders. Petitioner joined service as Clerk and re-employed on 09.01.1976 and he superannuated on 31.10.2005. After superannuation, the petitioner has not laid any challenged to earlier rejection orders dated 12.12.2005, Annexure P-2/T and 01.08.2013, Annexure P-3 , till filing of the instant petition on 20.04.2015 before State Administrative Tribunal. In these circumstances, once the petitioner has accepted the earlier rejection orders, therefore, challenge to the subsequent rejection order, will not confer a fresh breather to the petitioner and in these circumstances, the instant petition is devoid of any merit.

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7(v). Contention of learned counsel for the petitioner that since the respondents have granted benefit of military service for pay-fixation and seniority and therefore, the benefit of military service ought to have been counted as qualifying service for pension on

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superannuation from civil employment also. The contention raised by Learned Counsel for the petitioner appears to be attractive on the face of it, but on scrutinizing the intent and objection of two situations, i.e. counting of military service for pension and seniority, the same is regulated by Himachal Pradesh Demobilized Armed Forces Personnel [Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972, which entitles ex-serviceman who is appointed against reserved post irrespective of the nature of his service rendered or nature discharged, for getting benefit of military service for pay fixation and seniority. However, the object of Rule 19 of CCS [Pension] Rules, governing counting of military service, upon receipt of military pension, military gratuity, commuted military pension accrues from rights of military pensioner under Military Act and Rules read with Rule 19 of CCS [Pension] Rules. Thus, these two situations being differently governed under two separate set of Enactments, will not be entitled the petitioner

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for ipso facto grant of military benefits for pension, even if, the benefits have been given for pay fixation and seniority in the instant case. In these circumstances, contention of learned counsel for the petitioner is devoid of any merit and is rejected.

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CONCLUSION AND DIRECTIONS:

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8. In view of the above discussion and for the reasons recorded, the instant petition

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is dismissed in the following terms:-

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(i) Rejection orders dated 12.12.2005, Annexure P-2/T; 01.08.2013, Annexure P-3; and 11.02.2015, Annexure A-10, do not suffer from any infirmity;

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(ii) Earlier rejection orders dated 12.12.2005, Annexure P-2/T; 01.08.2013, Annexure P-3; and 11.02.2015, are upheld;

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(iii) Claim for counting military service as qualifying service towards civil service, on re-employment, cannot be granted de hors the object, intent and mandate of Rule 19 of CCS [Pension] Rules; and

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(iv) Parties to bear their respective costs.

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application(s), if any, shall stand disposed

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of accordingly.

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(Ranjan Sharma)

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Judge