Naresh Kumar vs Dept.Of Atomic Energy & Ors

Corporal and after putting in fifteen years of service, he received

military pension in accordance with the Rules. On 17th April, 1978,

the appellant joined Narora Atomic Power Station as a Tradesman

E. The power station was under the control of Department of

Atomic Energy, Government of India. The appellant claims that

he had a choice to avail pensionery benefits from the Air Force or

in the alternative not to take pension from the Air Force but to

have the benefit of combined qualifying service for his military and

civil services from the Union of India. However, the appellant

2 exercised his option to receive benefits from the Air Force and did

not opt for combined benefits of Civil and Military Pension.

2. On 3rd September, 1987, the Government incorporated

Nuclear Power Corporation of India Limited (NPCIL) under the

provisions of Companies Act, 1956. Consequent upon the

incorporation, all the employees of Nuclear Power Board (for short

`NPB') a constituent unit of Department of Atomic Energy (for

short `DAE') were transferred en masse on deputation to the

Corporation vide notification dated 4th September, 1987. The

conditions of service were finalized and contained in the Office

Memorandum dated 26th May, 1994 which came to be challenged

3 before the Central Administrative Tribunal. The concerned

authorities were required to consider the matter and finally a

revised offer was issued to the deputationists vide an Office

Memorandum dated 24th December, 1997. In the said

Memorandum dated 24th December, 1997, it was clearly stated

that last date for changing any pension option was 16th February,

1998. On 13th February, 1998, the appellant exercised his option

for drawing pro-rata monthly pension and family pension benefits

from the date of absorption. The appellant had joined the service

of Corporation on 1st January, 1998 and resigned from the service

of the Government of India w.e.f. 31st December, 1997. The

appellant wanted to change his option in regard to benefits of

4 pension. Vide his request dated 14th January, 1999, the appellant

requested the authorities for change in option from pro-rata

pension to pension for combined service put in both under DAE

and NPCIL and submitted the requisite option form. However,

vide letter dated 18th February, 1999, the appellant was informed

that the authorities had not agreed and the Department of Atomic

Energy was not willing to permit change in option. The petitioner

was drawing independent military pension. On or about 11th April,

2001, the Office Memorandum was issued by the authorities

clarifying that rule 18 and 19 of the Central Civil Services

(pension) Rules, 1972 (for short `the Rules') shall apply

retrospectively to civil and military re-employed pensioners and

5 shall not be subject to any limitation as per provisions of rule 18(3)

of the Rules. The appellant who was in third spell of his service

was again informed on 24th September, 2001 that his request

cannot be agreed to by the Department of Atomic Energy. After

waiting for a considerable time, again on 26th July, 2004, the

appellant made a representation to the Additional Secretary of

DAE for reconsideration of his grievance. This representation also

came to be rejected. Dissatisfied, the appellant moved another

representation on 4th July, 2006 which met the same fate. The

third and final representation submitted by the appellant on 5th

September, 2005 was also disposed of by the authorities by

passing the following order:

6

"...Your representation has been re-

considered carefully in the Department and it is regretted that your request for allowing you to change the option of pro-rata pension to combind service pension cannot be accepted..."

3. On 31st January, 2006, the appellant retired from the service

of Corporation and finally filed the Writ Petition on 9th January,

2007 before the High Court of Judicature at Mumbai claiming that

his services under the Union of India and Military Service should

be permitted to be combined for the purposes of pensionery

benefits and option be permitted to be re-exercised by him. The

Division Bench of the High Court vide its order dated 4th April,

7 2007 dismissed the Writ Petition filed by the appellant while

noticing that the Writ Petition suffered from the defect of

unexplained delay and laches. Besides that, even on merits, the

appellant had no case. It noticed that the representation of the

appellant was first rejected in the year 1999 and he filed the Writ

Petition in the year 2007 after a lapse of nearly 8 years and the

Bench found no explanation whatsoever for his inordinate delay.

4. Aggrieved from the judgment of the High Court, the

appellant has filed the present appeal. According to learned

Counsel appearing for the appellant after issuance of the

Memorandum by the authorities relaxing and lifting the limitations

8 as contained in Rule 18(3), the appellant had a fresh cause of

action and the respondents were expected to consider the case of

the appellant for change of option and consequent payment of

combined pensions afresh. It is further contended that as the High

Court has failed to appreciate this contention, the judgment of the

High Court is liable to be set aside.

5. On the contrary, the arguments on behalf of the respondent

is that the appellant had put up a different relief before the

authorities concerned while in the Writ Petition before the High

Court and even before this Court, the relief prayed for is entirely

different. The appellant cannot get combined pension as he had

9 opted for pro-rata pension at a given point of time and now he

cannot be permitted to change the option. In any case the option

sought for in the writ petition being distinct from the one prayed in

the representation, the petitioner cannot be entitled to any relief.

6. The respondents have taken a specific step in the counter

affidavit filed before this Court as well as earlier that the details of

absorption of the deputationists as well as option to be exercised

by the employees was stated in a booklet which was circulated. In

that booklet, it had been specifically stated that whosoever opts

for a monthly pro-rata pension would not be allowed to commute

any part of pro-rata pension either at the time of permanent

10 absorption or at any time thereafter. The petitioner having opted

and taken benefit for all this period cannot be permitted now to

alter the option to the prejudice of the Corporation. Another

submission which carries some weight on behalf of the

Corporation is that this practice has been uniformly followed till

date and a large number of employees had exercised their option

like the petitioner, none was permitted to change such option, by

the Corporation at any subsequent stage. If the case of the

petitioner is now accepted, it will cause tremendous administrative

and financial problems for the Corporation. It is true that normally

the matters which are settled should not be permitted to be

unsettled on the mere asking. As per practice, the Corporation

11 has followed this as a Rule and has applied it to all concerned

uniformly for all these years and even petitioner whose request

was declined in the year 1999 did not bother to approach the

Court of law for claiming appropriate relief till the year 2007.

Thus, in addition to the other reason that the petitioner is not

entitled to the relief on merits, we even find substance in this

argument on behalf of the Corporation.

7. From the above noticed facts, it is clear that the appellant

had served in the Air Force at the first phase of his employment

whereafter he served DAE and in the third and last phase, he

served the Corporation. The representation which the appellant

12 moved even on 14th January, 1999, he had submitted that pension

for combined service put in both under DAE and NPC be granted

to him by change in option and that he was willing to refund the

amount of pro-rata pension paid to him. This representation came

to be rejected on 18th February, 1999 but still the appellant chose

not to challenge the same and waited for considerable years. The

circular dated 11th April, 2001 hardly had any bearing on the case

of the appellant. That circular was applicable to the re-employee

pensioners who opted for separate military and civil pension and

whose cases were earlier decided were permitted to be

reconsidered and pensionery benefits for civil service may be fixed

without limitation as provided in the paragraphs of that circular.

13 Rule 18(3) provided that a Government servant who opts for

Clause (a) of sub rule (1), the pension or gratuity admissible for

his subsequent service is subject to the limitation, that service

gratuity, or the capital value of the pension and retirement gratuity,

if any, shall not be greater than the difference between the value

of the pension and retirement gratuity, if any, that would be

admissible at the time of the Government servant's final retirement

if the two periods of service were combined and the value of

retirement benefits already granted to him for the previous service.

This obviously meant and was to be examined in contrast to the

service rendered in the armed forces and subsequently, in the civil

services. As already noticed, the appellant was claiming

14 combining of the pension of DAE and the Corporation none of

them being the part of the military or Air Force service.

8. Now, let us examine the option exercised and the proforma

filled in by the appellant as back as on 13 th February, 1998 much

after his retirement even from the DAE. The relevant paragraph of

the option reads as under:

"2.3.1 I opt to draw pro-rata monthly pension and family pension benefits from the date of absorption."

9. This representation was filled in by the appellant after having

gone through and understood the terms of absorption in the

15 Corporation and it was relatable to the service rendered in the

Corporation and absorption therein and pro-rata pension of the

service rendered in the forces. His request for change which was

rejected by the authorities related to declining of combining the

service of DAE and NPC, which itself was not the intent of the

circular. In the Writ Petition before the High Court, the appellant

had prayed for a direction to the respondents to accept his option

for combined service pension. Even the circular issued on 27th

January, 2003 (Annexure `P-7') clearly stated that in case of re-

employment of military pensioner in civil service, the pensionery

benefits for second spell of service shall not be subject to any

limitation as per provisions of rule 18(3) of the Rules. In other

16 words, it is not relatable to service rendered in DAE vis-`-vis

combining the same with the Corporation service. The relief

claimed even in the present petition thus, is misconceived and

cannot be granted on the facts of the case. Merely because the

case of the appellant was forwarded by the Department vide its

letter dated 27th January, 2007 for favourable consideration, would

not vest any right in the petitioner and can hardly be of any

material consequence. If an employee keeps making

representation after representation which are consistently rejected

then the appellant cannot claim any relief on that ground. We are

unable to find any merit in the contention raised before us and we

are also of the view that the High Court was not in error while

17 dismissing the Writ Petition even on the ground of unexplained

delay and laches. The representation of the appellant was

rejected as back in the year 1999 and for reasons best known to

the appellant he did not challenge the same before the Court of

competent jurisdiction.

10. For the reasons afore-stated, we find no merit in the present

appeal and the same is dismissed however, leaving the parties to

bear their own costs.

.........................................J. [ DR. B.S. CHAUHAN ]

18 .........................................J. [ SWATANTER KUMAR]

New Delhi July 08, 2010

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