IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 3138 OF 2008

Naresh Kumar   …Petitioner

Versus

Department of Atomic Energy & Ors.                 …Respondents

JUDGMENT

Swatanter Kumar, J.

1

1. The appellant  was serving  in  the  Indian  Air  Force  as  Air  

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 13th 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-à-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

19