NARESH KUMARversusDEPARTMENT OF ATOMIC ENERGY AND ORS.

                   [2010] 8 S.C.R. 627


                    NARESH KUMAR                            A
                            v.
    DEPARTMENT OF ATOMIC ENERGY AND ORS.
          (Civil Appeal No. 3138 of 2008)
                     JULY 08, 2010
                                                            B
 [DR. 8.5. CHAUHAN AND SWATANTER KUMAR, JJ.)

    Service Law - Pension - Multiple pension options -
Appellant opted for pro-rata pension - Later made
representation seeking change in option and claiming C
pension for combined service - Representation rejected by
authorities - Writ petition filed by appellant - Dismissed on
ground of unexplained delay and /aches, as well as on merits
- Propriety of - Held: Proper- The relief claimed by appellant
was misconceived and could not be granted on the facts of D
the case - Moreover, appellant, without giving any
explanation, approached the writ court long after his
representation was rejected by the authorities - Delay I
Lach es.

    Service Law - Settled practice - Challenge to - Held:   E
Normally the matters which are settled should not be
permitted to be unsettled on the mere asking.

     The appellant served in the Indian Air Force for 15
years wthereafter he served the Department of Atomic F
Energy (DAE) and later served the Nuclear Power
Corporation (NPC) as well. He had opted to receive
pensionary benefits from the Air Force instead of
comoined benefits of Civil and Military Pension. However,
later he moved a representation before the authorities G
concerned seeking change in option from pro-rata
pension to pension for combined service put in by him
both under DAE and NPC. The representation was
rejected. The appellant made two more representations
                           627                            H
    628      SUPREME COURT REPORTS             [201 OJ 8 S.C.R.


A   for reconsideration of his grievance but they were also
    rejected.

        Subsequently, the appellant filed a writ petition
    praying for a direction to the respondents to accept his
8   option for combined service pension. The petition was
    dismissed by the High Court on the ground of
    unexplained delay and laches, as also on merits.

          Dismissing the instant a11peal, the Court

c      HELD: 1.1. 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 NPC.
  In the representation moved by the appellant, he had
  submitted that pension for combined service put in both
D 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 in 1999 but still the appellant chose not to
  challenge the same and waited for considerable years.
E The circular of 2001 (relied upon by the appellant) was
  applicable to re-employed pensioners, who opted for
  separate military and civil pension, and hardly had any
  bearing on the case of the appellant, who was claiming
  combining of the pension of DAE and the Corporation
F none of them being the part of the military or Air Force
  service. [Para 7] [633-E-H; 634-A-D]

      1.2. The respondents had circulated a booklet
  wherein it was specifically stated that whosoever opts for
  a monthly pro-rata pension would not be allowed to
G commute any part of pro-rata pension either at the time
  of permanent absorption or at any time thereafter.
  According to the respondents, this practice has been
  uniformly followed till date and a large number of
  employees had exercised their option like the appellant.
H There is substance in the plea of the respondents that the
  NARESH KUMAR v. DEPARTMENT OF ATOMIC                     629
            ENERGY AND ORS.
appellant having opted and taken benefit for all this             A
period cannot be permitted to alter the option and if his
case is now accepted, it will cause tremendous
administrative and financial problems for the NPC. It is
true that normally the matters which are settled should
not be permitted to be unsettled on the mere asking.              B
[Para 6] [632-G-H; 633-A-C]

  _ 1.3. The relief claimed by the appellant is
misconceived and cannot be granted on the facts of the
case. Merely because the case of the appellant was                C
forwarded by the Department for favourable
consideration, would not vest any right in the appellant
and can hardly be of any material consequence. If an
employee keeps making representation after
representation which are consistently rejected then the
employee cannot claim any relief on that ground. The              D
High Court was not in error while 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            E
Court of competent jurisdiction till the year 2007. [Para 9]
[635-A-D]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3138 of 2008.                                                     F

    From the Judgment & Order dated 04.04.2007 of the High
Court of Judicature at Bombay in Writ Petition No. 520 of 2007.

    Rajesh Srivastava for the Appellant.
                                                                  G
    Pravin H. Parekh, Sameer Parekh, Ranjeeta Rohatgi,
Shashank Kunwar, Rukhmini Bobde, Vishal Prasad (for Parekh
& Co.) for the Respondents.

    The Judgment of the Court was delivered by
                                                                  H
    630      SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A         SWATANTER KUMAR, J. 1. The appellant was seNing
  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
B 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 qualifyiny service for his military and
c civil services from the Union of India. However, the appellant
  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
D   provisions cf 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.
E   The conditions of service were finalized and contained in the
    Office Memorandum dated 26th May, 1994 which came to be
    challenged 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
F   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
G   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 pension. Vide his request
H   dated 14th January, 1999, the appellant requested the
   NARESH KUMAR v. DEPARTMENT OF ATOMIC                   631
   ENERGY AND ORS. [SWATANTER KUMAR, J.]
authorities for change in option from pro-rata pension to A
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 B
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  c
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 D
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 E
representation submitted by the appellant on 5th September,
 2005 was/also disposed of by the authorities by passing the
following order:

    " ... Your representation has been re-considered carefully
    in the Department and it is regretted that your request for   F
    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 G
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 H
    632      SUPREME COURT REPORTS                  [2010) 8 S.C.R.


A   its order dated 4th April, 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
B   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
C   Counsel appearing for the appellant after issuance of the
    Memorandum by the authorities relaxing and lifting the
    limitations 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
D   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
E   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 opted for pro-rata pension at a
F   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
G 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
H be allowed to commute any part of pro-rata pension either at
   NARESH KUMAR v. DEPARTMENT OF ATOMIC                      633
   ENERGY AND ORS. [SWATANTER KUMAR, J.]
the time of permanent absorption or at any time thereafter. The A
petitioner having opted and taken benefit for all this peri0d
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 B
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  c
settled should not be permitted to be unsettled on the mere
asking. As per practice, the Corporation 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 D
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         E
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 moved even on 14th January, 1999, he had submitted
that pension for combined service put in both under DAE and          F
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          G
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          H
     634       SUPREME COURT REPORTS                  [2010] 8 S.C.R.


A    limitation as provided in the paragraphs of that circular. 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
B    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
c    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 combining of the pension
     of DAE and the Corporation none of them being the part of the
D    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:
E
           "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
F    in the 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
H    pensioner in civil service, the pensionery benefits for second
   NARESH KUMAR v. DEPARTMENT OF ATOMIC                  635
   ENERGY AND ORS. [SWATANTER KUMAR, J.]
spell of service shall not be subject to any limitation as per A
provisions of rule 18(3) of the Rules. In other words, it is not
relatable to service rendered in DAE vis-a-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 B
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       c
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 dismissing the Writ Petition even on the ground
of unexplained delay and laches. The representation of the D
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        E
the parties to bear their own costs.

B.B.B.                                    Appeal dismissed.