PRAKASH CHANDRA KAKKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned Counsel for the petitioner and the learned Counsel for the respondents.

(2.) The petitioner was holding the post of Auditor under the Controller of Defence Accounts. He was sent on deputation on 19.6.1981 to the Mica Trading Corporation (hereinafter called MITCO), a Government of India Undertaking, for a limited duration. Subsequently he came to be absorbed in the services of MITCO with the concurrence of the Central Government on 17.10.1984 with effect from 19.6.1984. In pursuance thereof he exercised his option for commutation of pension in 1991 which came to be accepted by the Central Government and his commuted pension was paid to him. He then agitated shifting of his date of absorption before the Central Administrative Tribunal, Patna Bench, registered as O.A. No. 29 of 1992. By order dated 15.2.1994 the date of his absorption was shifted from 19.6.1984 to 1.6.1985. Subsequently the Central Government issued a notification dated 14.6.1994 notifying his date of absorption as 1.6.1985. The petitioner then came to this Court in C.W.J.C. No. 1517 of 2001 with the claim that he had a right to re-exercise his option again as to whether he would opt for pro-rata pension or commutation of pension in view of the fresh date of absorption fixed. The writ petition was dismissed on 14.12.2001 on grounds of remedy available before the Central Administrative Tribunal, Patna Bench, Patna. He then filed O.A. No. 189 of 2001 which has been dismissed leading to institution of the present application.

(3.) Counsel for the petitioner contended that notwithstanding the fact that the petitioner had exercised his option for commutation of pension in context of absorption with effect from 19.6.1984 no sooner that the date of absorption was changed to 1.6.1985 the petitioner was entitled to be given the option afresh whether he wanted to go opt for pro-rata or commuted pension. The scheme for pro-rata pension and commuted pension were different for the two dates of absorption i.e. 19.6.1984 and 1.6.1985. While the former date of absorption gave him a better choice of commuted pension, the latter gave him a better choice of pro-rata pension. Therefore, before he was to be denied a more advantageous position he was required to be given notice for fresh exercise of option. In absence of any fresh option exercised in terms of the fresh date of absorption he automatically came in the category of a person who has opted for pro-rata pension. Strong reliance has been placed on the orders in O.A. No. 29 of 1992 that the respondents were required to treat him as absorbed with effect from 1.6.1985 with all consequential benefits of salary and pension etc. flowing therefrom. The contention, therefore, was that if the petitioner is a person absorbed from 1.6.1985 he has to be treated as a person absorbed from that date for all practical purposes as the date of absorption cannot be 1.6.1985 for certain other purposes and for the purpose of commutation his date of absorption would be 19.6.1984. That creates an anamolous position.