LANDMARK JUDGMENT FOR SECOND PENSION FROM DSC

LANDMARK JUDGMENT FOR SECOND PENSION FROM DSC AFTER CONDONATION OF SHORTFALL / DEFICIENCY OF SERVICE AS PER PENSION REGULATIONS FOR THE ARMY 1961 AND 2008 (REVISED)

Pension for DSC Service after condonation of short fall / deficiency up to 12 months in completing 15 years of service in DSC.   The Larger Bench of Armed Forces Tribunal (Principal Bench) New Delhi after hearing the following submissions have delivered a landmark judgment on 01 October 2019 granting relief to all those DSC persons who have rendered minimum 14 years of service in DSC for second pension.

1.       Provisions of Pension for Defence Security Corps personnel :-

(a)     Pension Regulations for the Army 1961 para 266 says that the grant of pensionary award to personnel of the Defence Security Corps shall be governed by the same general rules as are applicable to the combatants of the Army, except where they are inconsistent with the provisions of the Regulation in this Chapter.

(b)     Para 125 condonation of deficiency in service for eligibility to service/reservist pension is permissible upto six months except in cases where an individual discharged at his own request or an individual who is eligible for Special Pension or Gratuity or an individual who is invalided out with less than 15 years of service.

(c)      As per Pension Regulations for the Army 2008 para 44 the deficiency in service for eligibility for pension /gratuity may be condoned upto 12 months in each case subject to certain exceptions as provided in para (b) above.

(d)     As per Govt of India Min of Def letter NO 4684/DIR(PEN)/2001 dated 14.08.2001 para 1 (a) (v) condonation of shortfall in qualifying service or grant of pension in respect of PBOR beyond six months and upto 12 months was made permissible.

(e)      As per para 173 of Pension Regulations of Army 2008 Pension Regulations for the Army 1961 para 266 are reiterated and made the same general provisions applicable as by Regular Army Personnel.

(f)      As per para 175 (a)(i) an individual who has rendered 15 years or more in DSC his service pension shall be calculated as per Regulation 50 for actual qualifying service rendered in the Defence Security Corps without the element of weightage.

(g)     Defence Service Personnel are entitled for service pension on completion of 15 years of service in DSC apart from the service rendered in Regular Army if he complete 15 or more service and do not opt to count former service of Army in DSC in terms of para               174 (a).

(h)     The widows of DSC are entitled for Special Family Pension/Liberalized Family Pension and Ex-Gratia lump sum compensation under same condition at the same rate as applicable to regular Army Personnel under Chapter IV of the Regulation in terms of para 181(a) of Pension Regulations for the Army 2008 which was also provided in Regulations of 1961.

(j)      The widows of Army personnel who are getting two pensions i.e. one from Army and another from civil side are made eligible for two pensions after death of their husband wef 24.09.2012.  Same way a person who retired from Regular Army on completion of 15 years or more and getting service pension and thereafter joined DSC and there also complete 15 years is eligible for two pensions i.e. one from Army and another from DSC treating both service as separate.

2.       RAKSHA MANTRI’s COMMITTEE OF EXPERTS 2015 HELD FOR REVIEW OF SERVICE AND PENSION MATTERS

Question raised with facts in respect of condonation of deficiency of service in DSC.

Pension Regulations of the three services provide for condonation of service till 6 months for grant of pension. The period has further been extended to 1 year by way of a Government Letter issued on 14.08.2001. Personnel joining the Defence Security Corps (DSC) after retiring from the regular Defence Services have two options in matters of pension. Such personnel can either add their former service into their DSC service and take one pension for combined total length of service OR they can opt for their normal pension from their former regular service and start afresh in the DSC where they are entitled to second pension if they separately complete 15 years in the latter. In the second type of cases, the service in DSC is totally divorced from the former service and actually the term ‘second’ pension is a misnomer since it simply is an independent pension earned from their second spell of service without any connection with their former service. Many personnel fortuitously miss out on their second pension from DSC by a few months on retiring just prior to completion of 15 years in DSC. This is in stark contrast with those personnel who join civil appointments rather than the DSC where they are eligible for pension after 10 years of service on the civil side whereas if they join the DSC they are not eligible for the same even if they complete much above 14 years in the DSC. Since such personnel with more than 14 and less than 15 years of service were eligible for condonation of service up to 1 year, many of them applied for the same but their cases were rejected based on an old letter issued by the AG’s Branch of the Army in 1962 further based on a UO of the MoD stating that condonation would not apply to “second pension” cases. This seemed quite absurd since there is no such prohibition in the Regulations (eg, Regulation 125 of Pension Regulations of the Army, 1961) or even in the master MoD letter of 14-08-2001. As expected, Hon’ble Courts read down and disagreed with such a disabling provision introduced by the Services HQ/MoD and held that there was no such prohibition under the rules and hence condonation could not be denied to “second” pension cases. The same was held in multiple cases including by the Punjab & Haryana High Court in LPA 755/2010 Union of India Vs Mani Ram decided on 05-07-2010, the Delhi High Court in Ex-Sep Madan Singh Vs Union of India decided on 31-08-2006 and also various Benches of the AFT. Accordingly, accepting such a legal position, a letter was correctly issued by the Army HQ to all concerned to concede all such cases pending before various Courts after due approval and discussion with the then Secretary ESW.  However, strangely, the MoD in 2012 took out another letter re-iterating the earlier position and stating that since the idea of condonation is to grant financial benefits to those who are not in receipt of the same, condonation may not be granted for second pension.

RECOMMENDATION OF RAKSHA MANTRI’s COMMITTEE ON THE SUBJECT OF SECOND SERVICE PENSION FROM DSC

The Committee recommends the following on the issue:

(a) The Committee notes with concern that such a stand denying condonation of service for second pension is not only obdurate but also contemptuous since once an issue is decided by a Constitutional Court and accepted as such for many personnel and also the impugned letter read down or struck down by judicial interpretation, the DESW could not have issued another similar letter in 2012 with similar contentions to revalidate or negatively resuscitate a judicially settled issue. If such a stand were to be accepted, then even after impugned letters or provisions are read down, interpreted or struck down, various departments of the Government would simply issue them again with a different date to revalidate their actions, something which is not acceptable in a democracy which has the rule of law as its hallmark.

(b) Even otherwise the reasons to deny such condonation cannot be invented when no such prohibition or reasons exist in the master regulations or letters of the Government, moreover when the second service by those DSC personnel who have not opted to add their former service in their DSC service is totally separate and divorced from their earlier service with no connection whatsoever with their former service or financial situation. Defence personnel who are joining the DSC cannot be placed at a disadvantage than their peers joining civil Government organisations who become eligible for pension after 10 years.

(c) All appeals filed on the subject or in the pipeline may be withdrawn. The fresh letter issued by the DESW in the year 2012 merely reiterating the earlier letter of 1962 hence also needs to be withdrawn or directed to be ignored and status quo ante as accepted by judgements (supra) needs to be accepted since now it is the law of the land. Matters be conceded on a case to case basis, as was the practice earlier.

3. GOVT OF INDIA, MIN OF DEFENCE DIRECTION FOR REDUCING LITIGATION

The Govt of India, Min of Def vide their letter dated 07.09.2018 directed implementation of recommendation of expert committee constituted by Hon’ble Raksha Mantri for reducing litigation being prime focus of Govt of India and repeatedly emphasized by various circular by Cabinet Secretariats and Ministry of Law and Justice taking view that  the tendency of continuous unethical filing of appeals in issues that have attained finality at the High Court and Supreme Court should be checked and all appeal should be identified and immediately withdrawn this was also circulated by the office of the CGDA, Delhi Cantt vide their letter dated 30.10.2018.

4. LAW SETTLED BY HON’BLE AFT, HIGH COURT AND SUPREME COURT BY GRANTING BENEFITS TO DSC PERSONNEL AND THEIR WIDOWS BY CONDONING DEFICIENCY OF SERVICE AND QUASHING THE POLICY LETTERS.

          (a)     The AG’s Branch of the Army vide letter No 82370/AG/PS-4 (a) dated 07.12.1962 stated that condonation of deficiency of service would not apply to second pension cases.  Hon’ble Courts read down and disagreed with such a disabling provision introduced by the Services HQ/MoD and held that there was no such prohibition under the rules and hence condonation could not be denied to “second” pension cases. The same was held in multiple cases including by the Punjab & Haryana High Court in LPA 755/2010 Union of India Vs Mani Ram decided on 05-07-2010, the Delhi High Court in Ex-Sep Madan Singh Vs Union of India decided on 31-08-2006 and also various Benches of the AFT.

          (b)     Govt of India, Min of Def vide letter dated 14(2)/2011/D(Pen/Pol) dated 23.04.2012 reiterated that the condonation of short fall in service towards second service pension in respect of DSC was examined and the benefits of condonation was rejected.  This Hon’ble Tribunal in OA 60/2013 titled Bhani Devi vs UOI taking in view TA 377/2009 titled Hoshiar Singh vs UOI & ORs decided vide order dated 07.11.2013 that rule 266 clearly declared that all general rules shall be applicable to the employees governed by provisions of chapter IV and there is no inconsistent rule to Rule  125 which is applicable to condone the deficiency of service and held that the letter dated 23.04.2012 just run contrary to Rule 266 applicable to DSC personnel and therefore cannot be given effect to.  Thereafter catena of orders were passed by different AFT’s granting benefits of condoning deficiency of service upto one year and granted second service pension to the DSC personnel.

          (c)      The Govt of India, Min of Def vide letter dated 20.06.2017 issued another letter reiterating the facts/rule provided in letter dated 07.12.1962 and 23.04.2012 conveying that the condonation of deficiency in service for grant of service pension of DSC service is not permissible.  This issue was discussed by Hon’ble AFT (RB) Kochi in OA No 131/2017 titled Mohanan T vs UOI vide order dated 12.10.2017.   The Hon’ble Tribunal held that the amendment to Regulation 44 introduced as Sub Regulation (iv) vide letter dated 20.06.2017 denying condonation for second pension is not in keeping with the principle enunciated by the Hon’ble Apex Court in DS Nakara’s & Ors vs UOI (1983) 1SCC 305 and declared Sub Regulation (iv) as ultra vires and strike down the same.  The Hon’ble Tribunal had taken various judgments and policies into consideration while deciding the said matter.   The respondents filed an appeal before Hon’ble Supreme Court by challenging the order of Hon’ble AFT (RB) Kochi titled Ex Nk Mohanan T vide Civil Appeal (Diary 27100) of 2018 which was dismissed by Hon’ble Supreme Court on 27.08.2018.

5. 5. It is respectfully submitted that the department is issuing same provisions with same ratio by re-issuing the letters which was already been held ultra vires by the constitutional court time to time by granting benefits of condonation of deficiency of service in second service pension to DSC personnel. It was held in various judgments that in pension matters a person, thus otherwise entitled to the benefits of a beneficial provision of a statute should not ordinarily be deprived therefrom.