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Judgment
[1] By means of this writ petition, the petitioners have urged this court to quash the letter dated 23.04.2018 (Annexure-8 to the writ petition), the letter dated 06.04.2018 (Annexure-9 to the writ petition), the letter dated 26.04.2018 (Annexure-11 to the writ petition) and the order dated 20.07.2001 (Annexure-10 to the writ petition).
[2] Further, the petitioners have urged that the respondents be directed to accord the benefit of double pensions on retirement on attaining the age of superannuation from Tripura State Rifles (TSR). The petitioners served as the Head Constable under 102nd Battalion and 5th Battalion of Border Security Force (BSF). After serving for a considerable time, on prayer, the petitioner No.1, was allowed to get voluntary retirement w.e.f. 31.03.2001 by the order under No.1065/VR/Estt/102 BN/2001/696-702 dated 12.01.2001 (Annexure-1 to the writ petition). The petitioner No.2 was allowed to retire voluntarily from the service on his prayer by the order under No.Estt/5 Bn/90/Vol-Ret/98/10053-59 dated 09.09.1998 (Annexure-2 to the writ petition) w.e.f. 30.11.1998. In both the cases, the petitioners were accorded pension and other retiral benefits as admissible to them.
[3] After their retirement the petitioner No.1 was appointed as Havilder (GD) in TSR by the letter of appointment No.F.70/TSR-VOII/Estt/Apptt/01/0976 dated 11.02.2002 (Annexure-3 to the writ petition) issued by the Commandant 8th Bn TSR (RIR-III), Gokulpur in the scale of pay of Rs.3300-7100/-Similarly, the petitioner No.2 was appointed as Havilder (GD) under TSR by the letter of appointment No.TSR-7/Estt/2K/3030-3039 dated 31.03.2002 (Annexure-4 to the writ petition) issued by the office of the Commandant 7th Bn. TSR, R.K. Nagar in the scale of pay of Rs.3300-7100/-.
[4] There is no dispute that the petitioner No.1 retired from the service of TSR on attaining the age of superannuation on 28.02.2018. Similarly, the petitioner No.2 retired from the service of TSR on 31.01.2018 on attaining the age of superannuation. In response to the representation dated 06.04.2018 submitted by the petitioner No.2, the Commandant 5th Bn., BSF by his letter dated 23.04.2018 (Annexure-8 to the writ petition) informed the petitioner No.2 as follows:
It is to inform that as per CCS pension Rule "A Government servant shall not earn two pensions in the same service or post at the same time or by the same continues service. Except as provided in Rule 19, a Government servant who having retired on a superannuation pension or retiring pension, is subsequently re-employed shall not be entitled to a separated pension or gratuity for the period of his re-employment".
[5] By the communication dated 06.04.2019 (annexure-9 to the writ petition) the senior Accounts Officer from the office of the Accountant General (A & E) Tripura has apprised the Commandant 8th Bn TSR (IR) III, that the pension and other benefits will not be admissible to those ex- BSF, CRPF, Assam Rifle ect. who are reemployed in the TSR. Finance Department, has under their communication No.F.42(12)-PD/2001 dated 20.07.2001 (Annexure-10 to the writ petition) clarified that way. For purpose of reference, the clarificatory order under No.F.42(12)/PD/2001 dated 20.07.2001 (Annexure-10 to the writ petition) having considered relevant in the controversy is extracted as a whole:
No.F.42(12)-PD/2001 GOVERNMENT OF TRIPURA HOME DEPARTMENT Dated, Agartala, the 20th July, 2001
To
The Accountant General (A&E) Tripura, Agartala.
Subject: Clarification regarding entitlement of Pensionary benefits to the Ex.BSR/CRPF/Assam Rifles person re-employed in the TSR.
Sir,
I am directed to refer to your letter No.Pen/Pol/2001-2002/1251 dated 24th March, 2001 on the subject noted above and to convey the observation of the Finance Department in the matter as follows:-
"Pensionary benefit will not be admissible to those Ex-BSF, CRPF, Assam Rifles etc. re-employed personnel in the TSR who are in receipt of pension and other pensionary benefits for their previous service".
Yours faithfully
(H. Bhowmik) Under Secretary Govt. of Tripura
[6] Accordingly, the petitioner No.1 was informed that he is not entitled to double pensions by the letter dated 26.04.2018 (Annexure-8 to the writ petition). By the memorandum No.27011/100/2012 -R&W dated 23.11.2012 (Annexure-12 to the writ petition) issued by the Ministry of Home Affairs, Government of India, it has been apprised that the Cabinet Committee on Security has approved the proposal of the Ministry of Home affairs to declare the retired Central Armed Police Force personnel from Central Reserve Police Force (CRPF), Border Security Force (BSF), Central Industrial Security Force (CISF), Indo-Tibetan Border Police (ITBP) and Sashastra Seema Bal (SSB) as Ex.Central Armed Police Force Personnel are entitled to pension.
[7] By the letter dated 17.01.2013 (Annexure-13 to the writ petition), the Ministry of Defence informed Armed Force Personnel and the Ex-Servicemen who were reemployed under the Government after discharge from the military service will be entitled to two family pension as consequence of two pensions provided to that category of Armed Force Personnel. For purpose of reference the relevant part of the letter dated 17.01.2013 is extracted hereunder:
Subject: Implementation of the Government decision on the recommendations of Committee on the issues related to Defence Service Personnel and Ex- Servicemen, 2012-Grant of dual Family Pension from Military as well as Civil employment.
Sir,
The under signed is directed to refer to the provisions contained in Army
Instructions 51/1980 read with provisions contained in this Ministry‟s letter No.10(6)/92/D(Pen/Sers) dated 28.09.1992 and Regulation 78 of Pension Regulations for the Army Part-I (2008) according to which the NOK of Armed Forces pensioners, who got re-employed in Civil Departments/PSUs/Autonomous bodies/Local Funds of Central/State Governments after getting retired from military service with pension, are authorized to draw Ordinary Family pension either from military side or from civil side in terms of provisions contained in this Ministry‟s above said letter dated 28.09.1992 and Rule 54(13-A) & Rule 54 (13-B) of CCS (Pension) Rule 1972.
In order to consider various issued on pension of Armed Forces Personnel and Ex-Servicemen, the Government had constituted a Committee of Secretaries headed by Cabinet Secretary. The Committee in its Report has recommended that NOK of a pensioner who gets second employment in the Government after discharge from military service would be entitled to draw two Family Pensions.
The above recommendation of the Committee has been accepted by the Government and the President is pleased to decide that the families of Armed Forces pensioners who re-employed in Civil Departments/PSUs/Autonomous bodies/Local Funds of Central/State Government after getting retired from military service and were a receipt of military pension till death, shall be allowed to draw Family pension from military side in addition to the family pension, if any, authorized from the re-employed civil department subject to fulfillment of other prescribed conditions as hitheretofore.
The provisions of this letter shall be applicable to the Armed Forces personnel who got discharged/retired/invalided out from service with effect from 24th September 2012 or thereafter, Benefit of these provisions shall also be allowed in past cases however the financial benefit shall be granted from 24th September 2012 only.
[8] In the same line by the memorandum No. F.8(1) FIN(G)/99 dated 18.06.2015, in order to implement the recommendations of the said Committee on the issues relating to Defence Service Personnel and Ex-Servicemen, 2012 in respect of grant of double family pension from the military organization as well as from the civil employment, it has been observed as under:
Now, the undersigned is directed to state that the Government of Tripura has decided to allow continuance of family pensions to the mentally/physically disabled children who drew, are drawing or may draw family pensions even after their marriage. Further, the State Government has also decided to allow two family pensions where the pensioner drew, is drawing or may draw two pensions for military and/or civil employment.
The benefits under the instant Memorandum shall be effected from 1st June, 2015."
[9] The petitioners have also referred the letter dated 31.07.2014 under No.8(1)-FIN(G)/99/329 issued by the Under Secretary to the Government of Tripura, Finance Department, Pension Cell to the Senior Accounts Officer, office of the AG (A & E). Considering its relevance, the substantive part is extracted hereunder:
Subject: Clarification regarding entitlement of Pension/Family Pension/Other Pensionary Benefits to Ex-BSF/CRPF/Assam Rifles person-re-employed in TSR.
Sir,
In inviting a reference to your Letter No.F.Pen-3/Sup/Duel
Pension/2018-19/2624-2626 dated 07.06.2018 on the subject cited above, I have been directed to inform that Defence service Personnel who have been re-employed in Civil employment is allowed to draw two pensions for Military and Civil employment. Members of family of such pensioners are also entitled to two family pensions as per extant rules.
The relevant memorandum is enclosed herewith for taking necessary action.
[10] Mr. Somik Deb, learned counsel appearing for the petitioner has therefore contended that the decision for denying was entirely uninformed and as such, the said decision is liable to be set aside. Mr. A. K. Bhowmik learned Advocate General assisted by Mr. M. Debbarma, learned Addl. G.A has submitted that earlier the respondents have taken a stand in their reply (at para-8) which reads as follows:
That, in reply to the statement made in para 3.3 to 4 of the writ petition I state that the Finance Deptt. Govt. of Tripura vide its memorandum No.F.81(1)-FIN(G)/99 dated 18.06.2015 (Annexure- 14 to the writ petition) decided to allow two family pension for Defence Service personnel and Ex-Serviceman for rendering military service as well as civil employment, but the petitioner re-employed in TSR as Ex-Central Armed police Force Personnel after retirement from serviced before the date of 24th September, 2012 as such petitioner is not entitled for dual pension for the service rendered in TSR as Ex-Central armed police Force Personnel‟ in accordance with the said Memorandum (Annexure-13 to the writ petition). Therefore, the claim of the petitioner is not relevant.
[11] After the reply by the respondents was filed on 04.02.2019, the matter was revisited by the Finance Department and the updated decision was communicated to the Director General of Police Tripura vide letter No.F.13(38)-PD/19/1066 dated 23.03.2019. The said decision vis-à-vis the instant writ petition is quite apt and relevant. Keeping that perspective of fact, as narrated above, and having reference to Rules 19 of CCS (Pension) Rules 1972 as adopted in the state of Tripura, the Finance Department took their decision. For purpose of reference Rule 19 of CCS (Pension) Rules, 1972 is extracted hereunder:
Counting of military service rendered before civil employment
(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 after attaining the age of eighteen years, may, on his confirmation in a civil service or post, opt either -
(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
(b) to cease to draw his pension or refund the gratuity including death-cum-retirement, if any, and count the 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 employees 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 and the pension immediately drawn shall not be required to be refunded but the element of pension which was not taken into account for fixation of pay or re-employment shall be refunded.
(2) (a) The authority issuing the order of substantive appointment to a civil service or post as is referred to in sub-rule(1) shall along with such order require in writing the Government servant to exercise the option under that sub-rule within three months of the date of issue of such order, if he is on leave on that day, within three months of the 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).
(b) If an 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, bonus or gratuity received in respect of his earlier military service, in monthly installments not ex-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 the whole amount has been refunded.
(4) In the case of a Government servant who, having elected to refund the pension, bonus or gratuity, dies before the entire amount is refund, the unrefunded amount of the 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 services.
Note: The provisions of this sub-rule shall apply to an employee who had rendered continuous temporary non-regular military service along or in conjunction with war service and any interruption in service between the temporary non-regular military service and civil service may be condoned in accordance with the provisions of rule 28.
[12] Finance department Government of Tripura have noted in their opinion that Rule 19 of CCS (Pension) Rules makes it abundantly clear that a person who has retired from a military service before attaining the age of superannuation has two options after joining the civil service post viz, he can retain the military pension and gratuity received on discharge from military service on which case, his former military service shall not count as qualifying service or alternatively he can cease to draw his pension or refund the gratuity received under military service, if any, and count the previous military service as qualifying service in which case the service so allowed to count shall be restricted to a service which is paid from Consolidated Fund of India. Further, in pursuance of Rule 19(3), the government employee has to refund the pension and other retirement benefits received by him from his military service in order to get his previous service counted as qualifying service and that situation will not arise until the whole amount is refunded.
[13] That apart, it has been opined that Rule 19(2)(a) of CCS(Pension) Rules defines the the qualifying service of a government employee in post. One government employee becomes entitled to pension on completion of 10 years of service. The petitioners had completed the said qualifying service in both the services. Thereafter, in the said advisory it had been succinctly laid down by the Finance Department as under:
Now, in the context of the writ petition, it is stated the writ petitioner has the following options:
(a) either to draw two separate pensions- one from BSF and one from TSR; or
(b) to refund the pension from BSF and count the entire service period rendered by him (in combination of service under BSF and TSR) for the purpose of a pension under TSR as per Rule 19 indicated above.
As regards item (a) above- the petitioner will be deemed to have not refunded his pension received from BSF and as such he shall continue to get pension/family pension as disbursed from BSF. The service rendered by him under BSF will not be counted for the purpose of calculation of qualifying service required for minimum pension under TSR. While disbursing the pension for the service under TSR, the TSR authorities will have to see as to whether he has completed minimum period of 10 years‟ required for calculating qualifying service for pension under TSR. Accordingly, he will get proportionate pension based on the period of service rendered under TSR.
As regards item (b) above- the petitioner will not get any pension from BSF, as he is expected to opt to refund the pension fund to the State Govt. However, the period of service rendered by the petitioner under BSF will be combined with the period of service rendered under TSR to count the total service period rendered by him for the purpose of pension/family pension.
It is relevant to mention here that if the petitioner gets two pensions as per Item
(a) above, then after his death his family members will also be entitled to two family pensions. But if the petitioner opts to refund the pension amount of BSF as per Rule 19(1) (b), then after his death his family members will be entitled to two family pensions.
Therefore, it is clarified that defence service personnel who have been re-employed in civil employed is allowed with only one pension if he surrender the pension of military service as per Rule 19(1)(b) of CCS (Pension) rules as adopted in the State; otherwise he shall be entitled to military pension and civil pension, if he is guided by Rule 19(1)(a) of CCS pension rules and if he completes at least 10 years qualifying service under Rule 49(2) of CCS (Pension) Rules. [Emphasis added]
[the communication No.F.13(38)-pd/19/1066 dated 23.03.2019 as issued by the Home Department to the Director General of Police Tripura and the Advisory of the Finance Department are taken on record for future reference.]
[14] Having appreciated the submission made by the counsel for the parties and scrutinized the records and the advisory of the Finance Department, this court is of the view that the petitioners who have been re-appointed in the civil employment may opt for one pension, if they surrender their pension of military servicer as per Rule 19(1)(b) of CCS (Pension) Rules, 1972 as adopted in the state of Tripura or they shall be entitled to military pension and the civil pension (both inclusive) if they are guided by Rule 19 (1) (a) of CCS (Pension) Rules, 1972 as they have completed their service in the civil employment more than 10 years (the minimum qualifying service) as per Rule 49 (2) of CCS (Pension) Rules, 1972 as adopted in the State of Tripura.
Hence, the petitioners are directed to exercise their option to their appointing authority for determining their pension and other retirement benefits. From the date of receiving the option from the petitioner, the pension and other retirement benefits shall be released by the respondents within 3 (three) months without fail.
In the result, the writ petition stands allowed to the extent as stated above.
No order as to costs.