Shortfall of Service upto One Year for Grant of Pension Condonation of Shortfall is Permissible

The Hon,ble  Supreme Court has held that there is a provision to condone one year of service to make a person eligible for pension, but for more than one year condonation there is no provision in Army. The earlier judgement of Supreme Court in Surender Singh Parmar,s case who was from Navy and sought premature retirement on completion of 13 years and 10 months service was granted pension by rounding of more than nine months and less than three month to one full year and than one year condonation in terms of Govt of India Ministry of Defence letter dated 14 August 2001, that matter was distinguished in Ex Sep Chhatar Pal case who was discharged from service having short of one year and 79 days.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO(S). (DIARY NO.17785/2015) OF 2019

EX SEP CHHATAR PAL                                                                                                           ..    Appellant(s)

Versus

UNION OF INDIA . & ORS.                                                                                                    ..     Respondent(s)

O R D E R

Leave to appeal is granted. The appellant worked as a Sepoy in the Indian Army. He was discharged from service by an order dated 16th July, 2001. He challenged the order of discharge by filing a writ petition in the Delhi High Court. The said writ petition was transferred to the Armed Forces Tribunal (‘the Tribunal’). The appellant also sought for pensionary benefits in the matter pending before the Tribunal. While affirming the order of discharge, the Tribunal by a judgment dated 04th April, 2012 directed the respondents to consider waiver of the minimum qualifying service for pension. After reconsideration of the matter, the respondents decided that the appellant is not entitled for pension as he fell 79 days short of 14 years. The minimum qualifying service that is required for eligibility to claim pension is 15 years which can be relaxed by a year. The appellant filed a review petition before the
Tribunal to review its judgment dated 04th April 2012. The review petition was dismissed on 15th March, 2013. Another O.A. was filed by the appellant seeking relief that he is entitled for payment of pension by relaxation of 79 days. According to him, he would have completed 14 years provided there was a waiver of 79 days and he would be entitled to claim pension. The Tribunal refused the submission made on behalf of the appellant and dismissed the original application. Aggrieved, the appellant is before us in this appeal. Learned counsel for the appellant relied upon Regulation 9 of the Pension Regulations for Army, 1961 (Part –I) to argue that the fraction of a year, which equals to three months and above but less than six months, shall be treated as a complete one-half year for the purpose of calculating the length of qualifying service. He relied upon the judgment of this Court in Union of India versus Surender Singh Parmar [(2015 (3) SCC 404].Learned senior counsel appearing for the respondents submitted that the case for relaxation of the qualifying service was duly considered pursuant tothe direction issued by the Armed Forces Tribunal. Itwas found that the appellant had not completed three years consecutive period with exemplary remarks in DSC. He earned six red ink entries due to indisciplined attitude/character. As he had completed only 13 years and 332 days which is a period short by 79 days for 14 years service, we are of the opinion that the appellant is not entitled to pension.Regulation 9 of the Pension Regulations for the Army, 1961 (Part-I) reads as follows : “9. If the total period of qualifying service of an individual exceeds completed years by six moths (180 days) or more, the amount of his pension/gratuity will be increased by half the difference between the pension/gratuity admissible for the completed years of his qualifying service and the one admissible for the next consecutive number of complete years.” It is clear from Regulation 9 that it is the qualifying service in excess of the completed years which has been dealt with under Regulation 9. The appellant cannot get any benefit from this Regulation as his service was only for 13 years and 332 days. So far as the judgment of this Court in Parmar’s case is concerned, the appellant therein was voluntarily discharged from service. Therefore, the said judgment is not applicable to the facts of this case as the
discharge of the appellant herein is not voluntary. In the instant case, the service record of the appellant was taken into account by the respondents while reconsidering his case for relaxing the qualifying service. We are of the considered opinion that relaxation of the period of one year has already been granted inspite of which the appellant fell short by 79 days for completion of 14 years. In view of the aforesaid discussion, we see no reason to interfere with the order of the Armed Forces Tribunal.

The appeals are dismissed.

 ………………………..J.
( L. NAGESWARA RAO )

………………………..J.
( HEMANT GUPTA )

New Delhi,
Dated: August 22, 2019

ITEM NO.16                                                            COURT NO.10                                               SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CIVIL APPEAL D NO. 17785/2015

EX SEP CHHATAR PAL                                                                                                                     Appellant(s)

VERSUS

UNION OF INDIA . & ORS.                                                                                                            Respondent(s) (IA 1/2015 )

Date : 22-08-2019 These appeals were called on for hearing
today.

CORAM   :

HON’BLE MR. JUSTICE L. NAGESWARA RAO
HON’BLE MR. JUSTICE HEMANT GUPTA

For Appellant(s)

  Mr. S.M. Dalal, Adv.
Mr. Rameshwar Prasad Goyal, AOR

For Respondent(s)

 Ms. Sonia Mathur, Sr. Adv.
Mr. Sanjay Kr. Tyagi, Adv.
Mr. Yogesh Pachauri, Adv.
Mr. A.K. Sharma, Adv.
Mr. Mukesh Kumar Maroria, AOR

UPON hearing the counsel the Court made the following
O R D E R

                                  Leave to appeal is granted.

The appeals are dismissed in terms of the Signed Order.
Pending application(s), if any, stand disposed of

(GEETA AHUJA)                                                                                                  (SUNIL KUMAR RAJVANSHI)
COURT MASTER (SH)                                                                                                     BRANCH OFFICER
(The Signed Order is placed on the file)