Kishori Lal vs Union Of India And Others

Counter affidavit has been filed. Applicant does not wish to file rejoinder.

Proxy counsel for the applicant submits that the case is squarely covered by number of judgements which is not disputed by counsel for the

respondents. As such, vide separate order, OA stands disposed of.

M.A. No. 1280 of 2019:

Vide this application, the applicant seeks condonation of delay of 9030 days in filing the OA by relying upon Deokinandan Prasad Vs. State of Bihar -

[AIR 1971 SC 1409] and Union of India & Ors. Vs. Tarsem Singh -[2009 (1) AISLJ 371,] wherein it was held that since the pension is not a bounty

payable on the sweet-will and pleasure of the Government, on the other hand, the right to pension is a valuable right vesting in a government servant,

relief may be granted as it does not affect the rights of the other parties In view of the aforesaid, delay of 9030 days in filing the OA is condoned.

Accordingly, M.A. No. 1280 of 2019 stands disposed of.

O.A. No. 687 of 2019:

By means of the present OA, the applicant has approached this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007 praying for the

following reliefs:

(a) Direct respondents to condone the deficiency/short fall of 01 month and 27 days of service and to make the applicant eligible for grant of service

pension from Defence Security Corps. And/or

(b) Direct respondents to grant service pension from Defence Security Corps including retiral and consequential benefits with effect from the date of

discharge and to pay the due arrears with interest @ 12% per annum till final payment is made.

(c) Any other relief which the Honble Tribunal may deem fit and proper in the facts and circumstances of the case along with cost against the

respondents.

Brief facts of the case are that the applicant was enrolled in the Indian Army on 09.01.1980 in the DOGRA Regiment and discharged from service

on 31.01.1997 (AN) , after serving for 17 years and 23 days, for which he was granted service pension. After discharge from Army, the applicant

was re-enrolled in Defence Security Corps (DSC) of the Army on 28.06.2002 and was discharged from service on 30.04.2017. The applicant submits

that he rendered service in DSC for 14 years, 10 months and 03 days (14 years 307 days) of service. Hence, there is a shortfall of 01 month and 27

days to complete 15 years of service to become eligible for service pension in DSC (second pension). The applicant further submits that he sent an

appeal dated 30.04.2017 to the respondents for the grant of service pension for DSC service by condoning the said shortfall of pensionable service, but

the same was not replied to. Therefore, the applicant througl, this OA prays for grant of second service pension for the service in DSC.

With regard to prayer for grant of second service pension, it may be noticed that the applicant has been denied pension for the spell of service in

DSC on the ground that he has not completed the minimum required qualifying service of 15 years.

Learned counsel for the applicant relied on Rule 125 of Pension Regulation of the Army as per which, shortfall in qualifying service for the grant of

pensionary benefits in respect of personnel below officer rank (PBOR) shortfall upto 12 months can be condoned by the competent authority to earn

service pension. He further submitted that the same issue was also decided by the Armed Forces Tribunal, Principal Bench, New Delhi in its judgment

dated 07.11.2013 in O.A. No. 60 of 2013 in the matter of Bhani Devi vs. Union of India & Ors. as well as in its judgment dated 14.08.2014 of O.A.

No. 80 of 2014.

The respondents in their counter affidavit, while not disputing the facts stated by the applicant with regard to his enrolment into the Army, grant of

service pension in the Army and re-enrollment in DSC service, submitted that the provision of condonation of deficiency in qualifying service is totally

against Para 132 of Pension Regulations for the Army 1961 (Part I), revised Para 47 of Pension Regulations for the Army 2008 (Part 10 and various

policy letters issued by the Govt. of India, Ministry of Defence). They further contended that as per Para 132 of Pension Regulations for the Army

1961 (Part I), revised Para 47 of Pension Regulations for the Army 200 (Part I) that the minimum qualifying service for earning a service pension is

15 years and that as per Govt. of India, Ministry of Defence letter No 14(2)/2011/D(Pen/Po1) dated 23.4.2012, which stipulates that the intention

behind grant of condonation of deficiency in service for grant of service pension is that the individual must not be left high and dry but should be

eligible for at least one pension and that the case of the applicant cannot be considered for condonation of deficiency in qualifying service for grant of

second service pension. The respondents went on to submit that Govt. of India has clarified the same vide the ibid letter that no condonation shall be

allowed for the grant of second service pension and, therefore, the applicant is not entitled to the condonation of shortfall of qualifying service for the

grant of second service pension.

Heard the submissions of the counsel for both the parties and also perused the documents placed on record.

The fact that the applicant was enrolled in the Indian Army on 09.01.1980 and discharged from service on 31.01.1997 is not disputed Further, the

fact that the applicant was re-enrolled in DSC on 28.06.2002 and discharged on 30.04.2017 after completing 14 years and 307 days of service in DSC

is also not disputed. The case of the applicant for condonation of shortfall of 01 months and 27 days to complete the minimum period of 15 years of

service for earning second service pension has been rejected by the respondents based on the Govt. of India, MOD Policy dated 23.04.2012, which

has been reiterated vide GoI, MoD Policy vide letter No. 14(02)/2011-D(Pen/Pol) dated 20.06.2017. .

The issue involved in this case is no more res integra as the matter was already settled by this Tribunal, in the case of Bhani Devi (supra), wherein

it was held that the provisions of condonation of shortfall in service under Regulation 125 of Pension Regulations for the Army, 1961, (Part I) are

equally applicable to armed forces personnel serving in DSC, for qualifying them for grant of second service pension. The judgment was also followed

by the orders of AFT, Chandigarh Bench in the case of Uday Singh Vs. Union of India and Ors. (M.A No 2165 of 2015 and 0.A No 333 of 2015)

dated 31.05.2016. In any case, this controversy has been set at rest by the Larger Bench in the case of Smt. Shama Kaur Vs. Union of India &

others etc. etc. (0.A. No. 1238 of 2016 etc. etc.) decided on 01.10.2019.

In view of the above reasons, we are of the considered opinion that applicant was eligible under Rule 125 for condonation of shortfall in service in

pensionable service. So far as the fact is concerned, applicant's shortfall in service was only of 01 months and 27 days and the same could have been

condoned. In view of the clear rules made under the 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.

We find that this OA is also on similar grounds and is squarely covered by the order passed by the Larger Bench and, therefore, the applicant is

entitled to condonation of 01 month 27 days of shortfall in service to complete 15 years of qualifying service, in accordance with Regulation 44 read in

conjunction with Regulation 173 of the Pension Regulations for the Army, (Part I), 2008 for earning second service pension for the service rendered in

DSC.

In the result, the shortfall of 01 month and 27 days in service of the applicant in DSC is condoned to complete 15 years of qualifying service in

DSC to earn second service pension. Accordingly, the applicant is entitled to service pension for his service in the DSC with effect from the date of

his discharge from service, i.e., 30.04.2017.

OA is accordingly allowed. Respondents are directed to issue corrigendum PPO for:

(i) Service pension for his service in the DSC with effect from 30.04.2017.

(ii) Arrears shall be paid within four months from the date of receipt of this order, failing which, the respondents shall pay interest @ 6% p.a.

There is no order as to costs.