D.M. Dafedar vs Union Of India And Others

Respondents have not brought the medical record. However, it is pointed out that no medical record of the. applicant is required keeping in vinv the

relief claimed by the applicant.

Heard arguments.

Vide separate order, OA stands disposed of.

Aggrieved by the order of Respondent No 2, vide Additional Directorate General of Territorial Army (ADO TA) letter No. 46347/TA-42263/LC/TA-

4 dated 09.03.2017, denying him grant of pension on the grounds that he had not completed 20 years minimum qualifying service mandated for grant of

pension, the applicant, a TA officer, who superannuated in the rank of Lieuteaant Colonel (Lt Col) with over 15 years of qualifying service, has filed

this OA seeking grant of service pension in his capacity as a 'late entrant', with effect from 01.05.2014, the date after his superannuation from service.

Brief facts of the case, as averred by the applicant, are that he was commissioned in the TA on 01.05.1995 and superannuated on 30.04.2014 with

17 years, 5 months and 13 days of service, which includes 1 year and 19 days' service in Central Government (P&T Department) service and 2 years,

4 months and 10 days of service in State Service with Karnataka Government. The respondents (ADG TA) has denied grant of service pension on

the grounds that he aggregates only 15 years and 23 days of embodied service and further, he does not qualify as a 'late entrant', who needs only 15

years of qualifying service, because the provisions of late entrant clause apply only to permanent regular commissioned officers, and not to TA

officers.

Heard the learned counsels on both sides and perused the pleadings and documents on record.

Learned counsel for the applicant has referred to Paras 15, 25(a) and 292 of the Pension Regulations of the Army (PRA), 1961, which are

reproduced as hereunder:

Pension Regulations for Army, 1961-Part 1 (in short, PRA) : 'PRA 15: For the purpose of the regulations in this chapter, a 'late entrant' is

an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years' commissioned service

qualifying for pension but whose total qualifying service is less than 20 years.'

PRA 25(a) : The minimum period of Qualifying service (without weightage) actually rendered and required for earning retiring pension

shall be 20 years (15 years in case of late entrants).

PRA-292 : The grant of pensionary awards to members of the TA shall be governed by the same general regulations as are applic able to

the corresponding personnel of the Army except where they are inconsistent with the provisions of regulation in this chapter.

Accordingly, counsel contends that the applicant qualifies as a 'late entrant' as he superannuated with more than 15 years (but less than 20 years) of

service. Further, he has averred that a large number of similarly placed TA officers, viz, less than 20 years but more than 15 years, have been granted

pension by treating them as 'late entrants'. Reliance is placed on the order of this Tribunal dated 19.02.2010 in the matter of Maj S.D. Sincih Vs.

Union of India (T.A. No. 46 of 2010) in support of the applicant's case.

Learned counsel for the respondents, on the other hand, has controverted the arguments made on behalf of the applicant. Learned counsel contends

that though admittedly, he has 15 years and 23 days' of embodied service in TA, the applicant cannot be granted service pension as he does not qualify

as a 'late entrant' due to the fact that, on several occasions, the applicant himself had requested for disembodiment or had not reported for embodiment

on the ground that his parent organisation did not relieve him. Further, TA officers do not come within the ambit of officers who can be considered as

'late entrants' as the 'late entrant' clause is applicable only on permanent regular commissioned officers.

Consideration:

We have given careful consideration to the arguments made before us and find that the primary issue is whether the applicant, a TA officer with

more than 15 years of service, can be granted service pension, by treating him as a 'late entrant' in which case only 15 years of qualifying service are

required.

We find that Para 292 of Chapter V of the Pension Regulations of the Army 1961, which deals with the Territorial Army, clearly states that grant

of pensionary awards to members of the Territorial Army shall be governed by the same general regulations as are applicable to the corresponding

personnnel of the Army, except where they are inconsistent with the provisions of regulations in this Chapter. This aspect has been clarified

subsequently by Govt. of India vide its policy letters with regard to implementation of Fifth and Sixth Central Pay Commission recommendations, vide

its letters of 30.10.1987 and 03.02.1998, whereby TA officers have been clubbed with regular commissioned Army officers.

We also find that the total service of the applicant works out to 15 years and 23 days, as admitted by the respondents in their counter affidavit, and

stated in IHQ of MoD (Additional Directorate General Territorial Army) letter dated 09.03.2017.

Counsel for the applicant has argued that, the term 'late entrant' is essentially meant for TA officers as they are the only officers who are

commissioned at a higher age and are more liable to superannuate without completing full qualifying period for earning service pension. Respondents,

on the other hand, contend that the provisions of Chapter II of the Pension Regulations of the Army (PRA) (as mentioned in Para 14 and Para 26),

are only applicable to 'regular commissioned officers of the Indian Army and the Military Nursing Service', and thus are not applicable in entirety to

TA officers of the Territorial Army, who are covered by Chapter V of the PRA 1961. Para 292 of PRA 1961 refers to exceptions in equality of

pension regulations between the TA and Regular Army when it stipulates 'where they are inconsistent with the provisions of regulations in this

Chapter'. The respondents thus argue that the provision of 'late entrant' is only applicable to regular commissioned officers of the Indian Army and the

Military Nursing Service, but not to the officers of Territorial Army.

We find the arguments put forth by the respondents on this aspect quite fallacious, keeping in view the catena of judgments by various Benches of

this Tribunal since 2010. In fact, the Honble Apex Court has, on one occasion, declined to allow 'leave to appeal' to the respondents against such a

judgment of the Tribunal, Order of 29.11.2013 by the Hon'ble Supreme Court in the case of Union of India Vs. B.D. Mishra [Civil Appeal D. No.

28183 of 2013 (for preliminary hearing). The point which clearly stands out in favour of the applicant is that, if this provision of 'late entrant' is not

applicable for a TA officer, then, who else is it meant for? Thus, we find that the applicant is entitled to the categorization of 'late entrant', and

consequent pensionary benefits.

Accordingly, the OA bears merit and is allowed. The applicant is granted service pension with effect from 01.05.2014. Arrears will be paid to him

within a period of four months, failing which, he will be entitled to interest @ 6% per annum.

No order as to costs.