JUDGMENT
S.K. Gupta, J.
1. By means of this petition, the petitioner seeks issuance of a writ in the nature of mandamus directing the respondents to release the amount of gratuity and other benefits including dearness allowance and other allowances of both the services and be paid full pension for both the services rendered by him. It is further stated that the former service of the petitioner rendered in Kumaon Regiment be also counted towards his service rendered by the petitioner in Defence Services Corps (DSC) to fix the pension and release the arrear from the date he has been discharged from DSC.
2. The initial appointment of the petitioner was in Kumaon Regiment on 23rd July, 1958. He was promoted to the rank of Naik with effect from 18th October, 1967. Further promotion was given to the petitioner to the rank of Havildar with effect from 1st July, 1974. It is further stated that after serving the Army for a period of more than 17 years, he was discharged from the Army in May, 1975. He was, however, re-enrolled in Defence Security Corps on 10th August, 1981 as Sepoy and was re-transferred to Pension Establishment with effect from 1st August, 1991 under Rule 13(3) item III (i) of the Army Rules, 1954 after completion of initial term of engagement. The petitioner further stated to have not been paid complete pension for both the services and also has not been paid gratuity, which compelled him to approach the Court for seeking redressal of his grievance, as various representations made in this behalf remained unresponded by the respondents.
3. The stand taken by the respondents in their demurrer filed to the writ petition is that the petitioner was never promoted to a higher rank and he was discharged from Defence Security Corps service in the rank of Sepoy. That the petitioner after re-employment in the Defence Security Corps elected to cease to draw pension and to count former service towards enhanced rate of pension and gratuity with service in Defence Security Corps in terms of Government of India, Ministry of Defence, New Delhi letter No. PC III to MF No. A00592/DSC-2/54-C/D (GS-1V) dated 3rd March, 1983. It is further stated that the petitioner duly signed Option Certificate on 27th May, 1983 and countersigned by the Officer Commanding the Unit and placed on record. Enhanced rate of pay and allowances were accordingly paid to the petitioner throughout his service rendered in Defence Security Corps, taking into account the former service rendered by the petitioner in Kumaon Regiment and Defence Security Corps based on his option, as provided by the Rule. The petitioner was granted enhanced rate of service pension with effect from 1st September, 1991 for life with dearness allowance as admissible from time to time. It is further stated that a sum of Rs. 15,520 on account of Retirement Gratuity and Rs. 28,106 on account of capitalised sum of computation of pension was also paid to the petitioner. On implementation of the 5th Central Pay Commission Report, the petitioner is getting enhanced rate of pension @ Rs. 1,291 per month from 1st January, 1996 for life with dearness allowance, as admissible as per the Government decision.
4. On going through the record, it is found that the petitioner had elected to cease to draw pension and to count former service on enhanced rate of service benefits with gratuity in the Defence Security Corps. This option was exercised by the petitioner in terms of letter dated 3rd March, 1983 referred to supra. This fact finds further support from the Option Certificate signed by the petitioner and countersigned by the Officer Commanding. The petitioner has, thus, aggregated qualifying service both of the Army as well as Defence Security Corps 27 years and 30 days to his credit on account of which he has been granted enhanced rate of service pension at the rate of Rs. 413 per month from 1st September, 1999 for life with dearness relief. This enhanced service pension has been given by taking into account both the
services rendered by the petitioner in Kumaon Regiment and Defence Security Corps and on the strength of his option exercised under the Rules applicable to the petitioner. There cannot be any dispute that the petitioner is not entitled to pension for serving the Defence Security Corps on the basis of total length of service in the Army also. Either he may draw the pension for the service rendered by him in the Army and service rendered by him in the Defence Security Corps or he may draw the pension taking into account total length of service rendered both in the Army and the Defence Security Corps. He cannot have double benefit/advantage. The petitioner, in this case, having opted for his length of service rendered in the Army to be counted for the higher emoluments in the Defence Security Corps and the pension having been fixed on the basis of his total length of service and paid full pension and granted enhanced rate of pension in full and cannot claim the pension of the reservist pensioner, which was suspended from the date he was enrolled in Defence Security Corps as per the provisions contained in Rule 266 (d) of Pension Regulations for the Army Part-I (1961). I do not find any merit in the submissions made by Mrs. Surinder Kour, learned Advocate appearing for the petitioner.
5. That apart, the petition is hopelessly belated and barred by delay and laches. The petitioner was discharged from the Defence Security Corps service on the completion of initial terms of engagement on 31.8.1991 and the writ petition came to be preferred on 29-1-2003 after a period of more than 11 years from the date of discharge from service. There is no explanation, much less plausible explanation, rendered by the petitioner for delay of 11 years in presenting the writ petition. The petitioner has, therefore, lost both the right and the remedy on this account of delay and laches. On this count of delay and laches alone, the writ petition is liable to be dismissed.
For what has been discussed above, I do not find any merit in this petition. The petition is accordingly dismissed.
