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Ex. Sepoy M. Muthusamy, Ex Army No. 6608551 v/s Union of India, Represented by the Secretary to Ministry of Defence & Others

    O.A. No. 28 of 2016

    Decided On, 09 July 2018

    At, Armed Forces Tribunal Regional Bench Chennai

    By, THE HONOURABLE MR. JUSTICE V.S. RAVI
    By, JUDICIAL MEMBER & THE HONOURABLE LT GEN C.A. KRISHNAN
    By, ADMINISTRATIVE MEMBER

    For the Applicant: M. Sivaraman, Advocate. For the Respondents: V. Balasubramanian, Central Government Sr. Panel Counsel.



Judgment Text

1. This O.A. has been filed on 30.11.2015, by the applicant under Section 14 of the Armed Forces Tribunal Act, 2007 to condone the shortage of service of 5 months and 4 days of the applicant for qualifying service of 15 years to grant service pension to the applicant.

2. The applicant has stated in the amended O.A. and also the learned counsel has stated that the applicant has completed a total period of 20 years of service inclusive of uniform and colour service from 11.2.1962 to 11.2.1982 and has been discharged on 31.3.1982. The applicant has put in 14 years, 6 months and 26 days in colour service. Hence the pension of the applicant ought to have been fixed by condoning the shortage of service of 5 months and 4 days of service of the applicant for the grant of service pension.

3. Also the applicant submits that the action of the respondents is violative of Article 14 and 16 of the Constitution of India and that after putting the excellent qualifying service in the borders, the deficit pension disbursed by the respondent is violative of fundamental principles of service law of jurisprudence. Hence the applicant has requested to condone the shortfall of service of 5 months and 4 days since the applicant has already got the 14 years, 6 m

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onths and 26 days of qualifying service for grant of service pension and also to pass orders as deemed fit.

4. The Respondents in the reply statement and in their additional reply statement and also the learned Central Government Sr. Panel Counsel for the respondents have submitted that the applicant has been enrolled in the Army on 11.2.1962 and on completion of his colour and reserve service, the applicant has been discharged from the service on 31.3.1982. There is no Government order for revision of Reservist Pension at par with Service Pensioner. The applicant has filed the O.A after inordinate delay. The applicant has been transferred to the reserve establishment on 7.9.1976 on completion of 14 years 6 months and 26 days of service in accordance with the policy. Therefore, the applicant has not earned the minimum qualifying colour service of 15 years for grant of service pension. The shortfall of service in the present case is not due to any non-qualifying service but the applicant has rendered less than 15 years service. Hence the present O.A. is devoid of any merit.

5. The following pertinent point arises for consideration in the present O.A :-

Whether the applicant is entitled to get service pension after condoning the shortage of service of 5 months and 4 days for qualifying service of 15 years for grant of service pension for reasons and grounds stated in the O.A. on a careful consideration of the materials on record in proper perspective?

6. POINT: The respondents have clearly admitted in the additional reply statement dated 2.7.2018 that the applicant has been transferred to the Reserve establishment on 7th September, 1976 on completion of 14 years 6 months and 26 days in accordance with the policy laid down in Para 7 of IHQ of MOD (Army) letter No.89188/IX/Org 2(MP)(c) dated 29-1-1976. On that ground only, the applicant has prayed for condoning the shortfall of service of 5 months and 4 days as the applicant has already completed a qualifying service of 14 years 6 months and 26 days of qualifying service as admitted by the respondent authorities in their additional reply statement.

7. The following Orders of the Hon’ble Supreme Court and also the Hon’ble Principal Bench of the Armed Forces Tribunal are quotable in this regard :-

i) In Civil Appeal No.9389 of 2014 in Union of India & Anr., Vs. Surender Singh Parmar, decided on 20.01.2015 by the Hon’ble Supreme Court of India, it has been held that :-

'6. ……..It is not in dispute that the respondent has completed 13 years, 10 months and 13 days of service under the appellant. In view of declaration of Regulation 82(a) ultra vires, the prayer of the respondent for considering his case for condonation cannot be rejected on the ground that he voluntarily sought permission to leave the service. The aforesaid submission was also accepted by the High Court in the earlier writ petition preferred by the respondent.

7. The note below paragraph 5 of the Government of India, Ministry of Defence instructions dated 30th October, 1987 at clause 5 provides that in calculating the length of qualifying service fraction of a year equal to three months and above but less than six months shall be treated as a completed one half year for reckoning qualifying service. The said provision reads as follows:

'5. Qualifying service.

(a) xx xx xx

(b) xx xx xx

Notes: (1) to (4) xx xx xx

(5) In calculating the length of qualifying service fraction of a year equal to three months and above but less than six months shall be treated as a completed one half year and reckoned as qualifying service.'

8. In view of the aforesaid provisions the respondent is entitled to claim total period of service as 14 years for the purpose of calculation of pension. By Government of India, Ministry of Defence order dated 14th August, 2001 administrative power has been delegated to the competent authority under clause (a)(v) the competent authority has been empowered to condone shortfall in qualifying service for grant of pension beyond six months and upto 12 months. The said provision reads as follows:

'(a)(v) Condonation of shortfall in Qualifying Service for grant of pension in respect of PBOR beyond six months and upto 12 months.'

9. In view of the aforesaid provision, the respondent is also entitled to claim for condonation of shortfall in qualifying service for grant of pension beyond six months and upto 12 months. If the aforesaid power has not been exercised by the competent authority in proper case then it was within the jurisdiction of the High Court or Tribunal to pass appropriate order directing the authority to condone the shortfall and to grant pension to the eligible person, which has been done in the present case and we find no ground to interfere with the substantive finding of the Tribunal.

ii) In O.A.No.401 of 2013 in Surender Singh Parmar Vs. Union of India & Ors., decided on 19.11.2013 by the Hon’ble Armed Forces Tribunal, Principal Bench, it has been held that :

'13……..In Gurmukh Singh case, the Division Bench of Bombay High Court in its judgment held, that the rule 82(a) of the Regulation 1964 is violative of Article 14 and consequentially that rule has been struck down by the Bombay High Court. Against Gurmukh Singh case the SLP No.13893 of 2007 was preferred by the UOI obviously in the year 2007 and as per the fact stated in the reply to the contempt petition, UOI stated before the Delhi High Court that operation of the judgment of the Gurmukh Singh was also stayed by the Supreme Court……

….Hon’ble Delhi High Court decided the Balwan Singh case and from the judgment of the Balwan Singh case we found that there was no challenge to the rule 82(a) before the Hon’ble Delhi High Court, neither that challenge was argued, neither it was considered nor it was decided by the Delhi High Court…..

14. Be it as it may be, after decision of the Gurmukh Singh case by the Bombay High Court, the Hon’ble Supreme Court dismissed the SLP No.13893 of 2007 preferred by the UOI in Gurmukh Singh’s case, on 23.07.2012….

….Hon’ble Supreme Court again took up the Balwan Singh case on 13.08.2012 and dismissed the SLP preferred by Balwan Singh also. …When this judgement was brought to the notice of the Division Bench of Delhi High Court in the petitioner’s writ petition No.WP(C) 12507 of 2004 the Hon’ble Division Bench of Delhi High Court specifically held that, 'we have perused the judgment dated 22.11.2006 of the High Court of Judicature at Bombay in Writ Petition No.430/2005 (Gurmukh Singh Vs. UOI) with which we are in respectful agreement'…..

8. In the circumstances, it is seen that there is no merit in the objection of the respondents that Regulation 47 mandates for minimum qualifying service of 15 years to earn service pension. Where regulations contain a specific provision for condonation of shortfall in qualifying service upto 12 months by the competent authority, for eligibility to earn pension/gratuity, period of qualifying service fixed under Regulation 47 is subject to the rules for condonation period. Cases in which condonation of shortfall in service are inapplicable and to be excluded are covered by Regulation. Undoubtedly, the claim of the applicant for condonation of shortfall in his service does not come under the excluded categories. Hence it is seen that the shortfall of qualifying service of the applicant to earn service pension, which is only 5 months and 4 days, deserves to be condoned, making him eligible for service pension. His claim has to be upheld, for the above mentioned reasons.

9. Further in O.A.No.17 of 2017 in K.Rajendran Vs. Union of India & Ors., decided on 2nd June, 2017 by the Hon’ble Armed Forces Tribunal, Regional Bench, Chennai it has been held that :

'10. The communication dated 23.04.2012 (R-1), nowhere conveys that the Rule 125 stands modified by the order/communication dated 23.04.2012 (Annexure R.10). It appears that the matter was brought to the notice of the Ministry with respect to the interpretation of Rule 125. The communication dated 23.04.2012 is only an opinion given by the Government and therefore observed that 'intention behind grant of condonation' is that individual must not be left high and dry 'but should be made available for atleast one pension'. The benefit of Rule 125 'for atleast for one pension' is not in the Rule 125. The communication dated 23.04.2012 nowhere supersedes the original Rule 125 nor reviewed Rule 125 but it is only an opinion of the Government that according to Government what was the intention behind the grant of condonation for deficiency of service for grant of service pension. When the rule is very clear that intention is irrelevant. The Rule 266 clearly declared that all general rules shall be applicable to the employees governed by the provisions of Chapter 4 and we have already observed that there is no inconsistent rule to the Rule 125 under Chapter 4 of the Regulations. The communication/letter dated 23.04.2012 neither have modified the Rule 125 nor reviewed it but it only conveyed that according to opinion of Government what was the intention for making Rule 125. In view of the above reasons, mere opinion of the Government and the interpretation of Rule 125, is not binding upon the Tribunal, particularly, when the Rule 266 and Rule 125 as are in force today are very clear.

11. In view of the above reasons, we are of considered opinion that petitioner’s husband was eligible under Rule 125 for condonation of shortfall in service in pensionable service. So far as the fact is concerned, petitioner’s husband’s shortfall in service was only less than one year which could have been condoned. In view of the clear rules made under Pension Regulations for the Army, 1961 and particularly, Rule 266, which provides that the general rule shall not be applicable when they are inconsistent with the rules framed under Chapter 4, the Government’s communication dated 23.04.2012, just runs contrary to Rule 266 and therefore, cannot be given effect to.'

10. In the facts and circumstances, it seen that the applicant’s case is on similar footing and is squarely covered by the orders of the AFT Principal Bench, New Delhi and also this Bench and he is therefore, entitled to condonation of 5 months and 4 days of shortfall in service to complete 15 years of qualifying service. Thus, the point is answered in favour of the Applicant. However, as per the Order dated 2.7.2018 passed in M.A.36 of 2016 herein, the arrears will be restricted for a period of three years prior to the date of filing of the present O.A.

11. In the result, the shortfall of 5 months and 4 days in service of the applicant is condoned to complete 15 years of qualifying service to earn service pension. Accordingly, the applicant is entitled to service pension for his service with effect from 1.12.2012. Corrigendum PPO shall be issued to that effect and arrears shall be paid within three months from the date of receipt of this order, failing which the respondents shall pay interest at 9% p.a. O.A. is ordered, accordingly. No costs.
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