At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE R.K. DESHPANDE & THE HONOURABLE MR. JUSTICE ARUN D. UPADHYE
For the Petitioners: S.A. Choudhari, Advocate. For the Respondent: R.D. Thakur, Advocate.
Arun D. Upadhye, J.
1. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
2. Shri S. A. Choudhari, learned counsel for the petitioners has submitted that the respondent has rendered only 9 years and 8 months service with the Department and therefore, he is not eligible for pension under the Central Civil Services (Pension) Rules, 1972. He further submitted that the learned Central Administrative Tribunal, Nagpur failed to appreciate that the respondent is not eligible for pension as he has not completed 10 years of qu
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alifying service. According to him, if respondent had completed 9 years and 9 months service, he could have received the benefit of Rule 49(3) of the C.C.S. (Pension) Rules. He, therefore, submitted that the learned Tribunal wrongly interpreted the Rule 49(3) and given benefit to the respondent and held that the respondent has completed more than 10 years service and therefore, qualified for grant of pension. He, therefore, prayed that the impugned Judgment of the Tribunal under challenge be set aside and the writ petition be allowed.
3. Shri R. D. Thakur, learned counsel for the respondent has submitted that the Tribunal has considered the facts as well as legal position in right perspective and allowed Original Application filed by the respondent. No interference of this Court is called for in the impugned Judgment. He further submitted that the respondent has completed qualifying service of 10 years and therefore, eligible for pension. The writ petition, therefore, be dismissed.
4. Considering the submissions of both the sides and having gone through the Judgment dated 08/12/2016 passed by the Tribunal, we are of the view that no interference of this Court is called for. The learned Tribunal has considered the provisions of Rule 49(3) of the C.C.S. (Pension) Rules and came to the conclusion that the respondent has completed the service more than 10 years and entitled to get pension. The learned Tribunal has observed that the respondent had already completed 9 years and 8 months service and adding six months to it as a fraction for remaining 4 months of service, the same would come to more than 10 years. The learned Tribunal has interpreted the provisions of Rule 49(3) and given benefit of 6 months to the respondent. We have perused the said provision of 49 of the C.C.S. (Pension) Rules, which is reproduced below for ready reference.
'49. In the case of Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(2) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirtythree years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensum.
(b) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension shall be less than Rupees Three hundred and seventy-five per mensum.
(c) Notwithstanding anything contained in Clause (a) and Clause (b), the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54.
(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service.'
Considering the provisions of Rule 49(3) of the C.C.S. (Pension) Rules, the petitioners were not justified to deny the claim of the respondent on the ground that he falls short of four months service for minimum qualifying service of 10 years so as to become eligible for pension. The learned Tribunal has set aside the order dated 01/07/2013 passed by the petitioners by allowing Original Application No.2128/2014 filed by the respondent. The learned Tribunal has rightly interpreted the provisions of Rule 49 (3) of C.C.S. (Pension) Rules and given benefit to the respondent by adding 6 months for fraction of remaining 4 months less service. The submission put forth on behalf of petitioners that the Tribunal has wrongly interpreted the provisions of Rule 49(3) of C.C.S. (Pension) Rules, therefore cannot be accepted.
5. Shri Chaudhari, learned counsel for the petitioners relied upon ruling in the case of Union of India Vrs. Sant Singh, reported in 2002 SCC OnLine Del 869. In the above ruling, Their Lordships of Delhi High Court have held that in calculating the length of qualifying service fraction of a year equal to 3 months and above is to be treated as completion of 6 months for the purpose of reckoning the qualifying service. Since fraction of a year equal to 3 months and above, is to be treated as half year of completed service, the respondent by application of the Rule must be deemed to have completed 10 years of service in the Rehabilitation Department for the purpose of computing the prorata pension. Considering the above ratio laid down by the Delhi High Court which supports the case of respondent, therefore, the submission put forth on behalf of the petitioners, cannot be accepted that he has not completed qualifying service.
6. After considering the submissions of both the sides, we are of the view that, there is no merit in the petition. The order passed by the Tribunal under challenge will have to be confirmed and writ petition is liable to be dismissed. Hence, accordingly writ petition is dismissed. Rule is discharged with no order as to costs.