IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER 2019 PRESENT THE HON'BLE MR. JUSTICE S N SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO.12588/2018 (S-CAT) BETWEEN:
DR. K.MATHIVANAN, S/O V. KRISHNARAJ, AGED ABOUT 51 YEARS, FARM SUPERINTENDENT, CENTRAL CATTLE BREEDING FARM, HESSARGHATTA, BANGALORE-560088. RESIDING AT QUARTER NO.54, CCBF, HESSARGHATTA, BANGALORE-560088.
(BY SRI. R.KAMALESAN, ADVOCATE) AND:
... PETITIONER 1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF AGRICULTURE DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING & FISHERIES KRISHI BHAVAN NEW DELHI-110001.
2. THE JOINT SECRETARY, CATTLE & DAIRY DEVELOPMENT (CDD) DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING & FISHERIES KRISHI BHAVAN NEW DELHI-110001.
3. THE JOINT COMMISSIONER, CATTLE BREEDING FARM (CBF) DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING & FISHERIES KRISHI BHAVAN NEW DELHI-110001.
...RESPONDENTS (BY SRI. MADANAN PILLAI.R., CGC FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RELEVANT RECORDS FROM THE RESPONDENTS AND ON PERUSAL; QUASH THE ORDER DATED 5.2.2018 PASSED BY THE HON’BLE CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, IN O.A.NO.792/2016 (ANNEXURE-A), WHILE GRANTING THE PRAYER MADE IN I.A.NO.792/2016 PREFERRED BY THE PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:
ORDER The applicant in O.A.No.792/2016 on the file of the Central Administrative Tribunal, Bengaluru,(for short “Tribunal) has come up in this writ petition impugning the order dated 5.1.2018 in rejecting his application in O.A.No.17000792/2016.
2. The brief facts leading to this writ petition are as under:-
The petitioner herein an ex-serviceman joined the service of respondent No.1 as Ex-serviceman in the post of Farm Superintendent in its Central Cattle Breeding Farm(CCBF) at Hessarghatta, Bengaluru. It is seen that his appointment with respondent No.1 is from 12.7.2000. When he was serving in the organization of respondent No.1, it is seen that he sent an application seeking to discharge him from service on voluntary retirement. The said application was submitted through speed post as well as by mail. The petitioner having waited for some time approached the Tribunal for the relief of direction to respondent No.1 to grant him pension and other retiral benefits as per Rules expeditiously on the ground that his VRS submitted on 4.2.2016 would come into effect on 9.5.2016 as per Rule 48(A) of CCS (Pension) Rules, 1978 thereby indicated that the application for voluntary retirement is not considered and no orders are passed and therefore, the retirement would come into force by virtue of Rule 48(A) of CCS(Pension) Rules, 1972. In the said proceedings, after considering the prayer of the petitioner herein, the Tribunal dismissed his application by its order dated 5.1.2018 which is the subject-matter of challenge in these proceedings.
3. The material on record would indicate that even before filing of application in O.A.No.170/00792/2016 which was filed on 27.5.2016, the petitioner herein had received communication from respondent No.3 on 28/30.6.2016 in F.No.11-3/99- Admn.III, which reads as under:-
“I am directed to refer to your letter dated 18/5/2016, on the subject cited above and to say that your request for grant of Voluntary Retirement Scheme (VRS) was considered in this Department. However, as per rule 48-A(1) of CCS Pension Rules-1972, twenty years qualifying service is required for considering VRS of a Government Servant. Since, you have not completed twenty years of qualifying service in the Government. Therefore, your request for grant of VRS cannot be considered.”
Thereby clearly indicating that the petitioners VRS application was considered and that as per Rule 48-A(1) of CCS Pension Rules, 1972, twenty years qualifying service is required for considering VRS of a Government servant and since he had not completed twenty years of qualifying service in the Government, by communication dated 30.06.2016 his request for grant of VRS was not considered. Though the said document was cited as Annexure-A14 to the original application, in the memorandum of application the rejection of his request is not at all mentioned and in the prayer column also there is no prayer to set aside the said order and to consider the same afresh. In the absence of prayer to that effect, the finding recorded by the Tribunal that the applicant-petitioner herein is not entitled for the relief sought for in the application appears to be just and proper. Even otherwise, we have perused the communication dated 28.6.2016 vide Annexure-A14 to the O.A. Rule 48A(1) of CCS(Pension) Rules, 1972 reads as under:-
“48-A(1): Retirement on completion of 20 years’ qualifying service – (1) At any time after a Government servant has completed twenty years’ qualifying service, he may, be giving notice of not less than three months in writing to the appointing authority, retire from service:
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is – (i) on assignments under the Indian Technical and Economic Cooperation (ITCE) Programme of the Ministry of External Affairs and other aid programmes, (ii) posted abroad in foreign based offices of the Ministries/Department, (iii) on a specific contract assignment as a foreign Government.
Unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.”
Thus, the said Rule clearly indicates that the service of petitioner with respondent No.1-organization being 16 years, he was not entitled to pensionary benefits in the absence of 20 years of qualifying service.
4. However, at this juncture, learned counsel for the petitioner would submit that since he is an ex- serviceman, the services which was rendered by him as Serving Officer in Indian Army should have been considered in addition to the qualifying service that he has completed. However, this question cannot be decided in the present case since the petitioner has not questioned the communication dated 30.06.2016 and the record also does not indicate how many years he has served in Army and whether the Rule provides adding the service rendered in the Indian Army to be included for the qualifying service is also not placed before this Court. We are of the view that petitioner has to agitate the same by raising the above said contention before appropriate forum.
5. In that view of the matter, the present writ petition which is in challenge to the order impugned dated 5.1.2018 in O.A.No.170/00792/2016 does not merit consideration and accordingly, this writ petition is dismissed.
However, liberty is reserved to the petitioner to challenge the communication dated 28.06.2016 and the question as to whether Rules supports his claim to add the number of years served in Indian Army to the number of years he has served in the respondent No.1-
organization to which the qualifying minimum service of 20 years as contemplated under Rule 48A(1) of CCS(Pension) Rules, 1972 is kept open.
No order as to costs.
Sd/- JUDGE Sd/- JUDGE *alb/-