Amar Nath vs Union Of India & Others

L. Narayana Swamy, CJ

The petitioner-appellant had made a prayer in the writ petition to set aside the letter dated 24.01.2012 issued by respondent No.2 in reply to the legal notice dated 09.09.2011 for not counting the period from 10.05.1969 to 31.03.1977 as qualifying service in CRPF for the purpose of granting pensionary benefits. Further prayer of the petitioner-appellant was for computing the period w.e.f. 10.05.1969 up to 30.04.1986 for the purpose of Rule 49 of CCS(Pension) Rules, 1972 for payment of pensionary benefits with consequential arrears accruing thereto along with interest @ 18% per annum from due date till the payment. The writ petition came to be dismissed, against which the present appeal has been filed.

It is the case of the petitioner-appellant that he was appointed in the army as Combatant w.e.f. 3rd March, 1962 to 5th April, 1969 and thereafter, he remained as Army Reservist from 06.04.1969 to 31.3.1977. The petitioner-appellant during his reservist period, had joined the CRPF on 10 th May, 1969 as Sepoy and served, as such, till his retirement i.e. 30th April 1986, but the same has been treated as 31st March, 1986 for the purpose of qualifying service. While serving as Army Reservist, he continued to draw pension in CRPF simultaneously. Taking all this into consideration, the petitioner-appellant issued a legal notice dated 9.9.2011 to the respondents for computing the period he served in the Army as well as CRPF for the purpose of pensionary benefits, but the same has been rejected. Rejection, according to the petitioner, is contrary to the CCS (Pension) Rules, 1972, as the same is also applicable to the defence service.

In response to the said legal notice, the respondents have filed the reply (Annexure P-4), in which it has been stated that the petitioner-appellant has been appointed as Constable in CRPF w.e.f. 10.05.1969, but remained as Army Reservist up to 31.3.1977 and was drawing the Reservist pension at the rate of Rs.50/- per month and he retired from service in the year 1986.

The period he served in the army from the year 1962 till 1977, has been treated by the CRPF as if he was working for the army and would get the pension, as such, from the army and for the remaining period form 1977 till 1986 for the purpose of Rule 49 of CCS(Pension) Rules his service would come less than ten years for the purpose of qualifying service. Hence, it is replied that the petitioner-appellant is not entitled to pensionary benefits from the office of CRPF. Though these aspects have been placed before the learned Single Judge, but, the same have not been considered. Hence, the petitioner-appellant made a prayer to allow the petition by directing the respondents to compute the period he served, as such, in the office of CRPF from 10th May, 1969 till 31 st March, 1986 i.e. for about 16 years, 11 months and 22 days for the purpose of qualifying service under Rule 49 of the CCS(Pension)Rules, 1972 and also to pay pensionary benefits.

Learned Assistant Solicitor General of India submits that the respondents have not filed any reply before learned Single Judge which led to this confusion. Hence, it is submitted that the writ petition be remanded to the learned Single Judge by permitting the respondents to file the reply. He further submits that from the facts gathered from the pleadings, the petitioner-appellant was appointed as Constable in CRPF on 10th May, 1969 and was getting the pensionary benefits till 31st March, 1977 as a Reservist. Under these circumstances, for the services rendered in the Army from 1962 to 1977, the petitioner has been paid the pensionary benefits, but from the year 1977 till his retirement in the year 1986, his service is less than qualifying service, hence, the petitioner is not entitled for pensionary benefits.

We have heard learned counsel for the parties and gone through the record.

When the petition is filed, it was the duty of the respondents to file the reply. Thereafter, if so advised, the petitioner could have filed the rejoinder which could be sufficient to gather all the facts on hand for the purpose of resolving the dispute once for all. In the present case, the respondents have not preferred to file the reply. The learned Single Judge has taken all the collected facts with the available material and dismissed the petition of the petitioner. The undisputed facts discussed by the learned Single Judge are that the petitioner-appellant has served in the Army though he was appointed in the office of CRPF w.e.f. 10.05.1969. The learned Single Judge has discussed the fact that the petitioner-appellant was getting pensionary benefits from the Army w.e.f. 10.05.1969 to 31.03.1977 but he was working as a Constable in the CRPF simultaneously. What is the nature of appointment and duty of an Army reservist is not forthcoming since the reply has not been filed. When the petitioner has been appointed in the office of CRPF on 10.5.1969, that should be the date to be computed for the purpose of pensionary benefits and in case it is held that he has completed the qualifying service for the purpose of Rule 49 of CCS(Pension) Rules, then the CRPF has to pay the pension to the petitioner-appellant. The fact which led to confusion is that though the petitioner was appointed in the CRPF in the year 1969 but he has been continuously getting pensionary benefits from the Army till 31.3.1977.

In order to pay the pensionary benefits, the qualifying service under Rule 49 of CCS(Pension) Rules, is very material. The appointment of the petitioner as Constable in CRPF if taken into account then he put in the qualifying service and is entitled to pensionary benefits. The petitioner was getting pension from the Army till 31.03.1977 that has to be determined by the CRPF. Unless and until it is not determined it causes disadvantage to the petitioner in computing and getting the pensionary benefits. Under these circumstances and in the interest of justice and equity, we deem it proper to set aside the judgment dated 25.10.2017, passed by the learned Single Judge without expressing any opinion on merits. We expect that discussion of some material and relevant facts may not be construed as expression of opinion by the learned Single Judge. Since the petitioner-appellant has already retired in the year 1986, we request the learned Single Judge to dispose of the matter at the earliest. The respondents are directed to file the reply within a period of three weeks, so that, the matter can be settled once for all. The appeal stands allowed, impugned judgment set aside and the matter is remanded to the learned Single Judge for decision afresh.

The parties through learned counsel representing them are directed to appear before the learned Single Judge on 29th April, 2021.