Lal Chand Ex. No. 95949 vs Union of India

R.L. Anand, J.—Lal Chand, petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India, against the respondents for issuance of a writ of certiorari and for the quashment of the orders Annexures P-3 and P-5 and it was prayed by the petitioner that directions be issued to the respondents to release the pension to the petitioner as per the instructions Annexure P-6 besides interest.

The case set up by the petitioner is that he was enrolled in the Army on 18.7.1940 and at the time of enrolment, he was hale and hearty and no note of any disease was given in the Service Book by the Medical Board. In the year 1947, the petitioner rendered military service sincerely and continuously and without any complaint and he dedicated his youth for the cause of nation. He defended the national interest during World Ward-II and served the Army in Indo-Pak war in 1947. He was discharged from the military service on 21.2.1954 as his services were no longer required being surplus to the establishment. At the time of the his discharge, character of the petitioner was assessed to be good. According to the petitioner the authorities discharged him from military service at its own and there was no request from the side of the petitioner. After his retirement, the petitioner submitted documents before the authorities and claimed right of pension, but his claim was rejected. According to the petitioner, he rendered 13 years and 219 days service in the Army. Only gratuity has been paid to him. The petitioner made several requests for the release of service pension vide letter dated 31.5.1978. The authorities replied to the petitioner that he was not eligible for the grant Of service pension because 15 years qualifying service has not been completed by him. Finally, a legal notice was given by the petitioner in the year 1998. The petitioner submitted that as per the instructions dated 31.10.1987, the Army personnel who have retired or died in harness, are entitled to special pension and gratuity. Since the petitioner has been discharged from the Army on account of the fact that he was declared surplus, therefore, he is entitled to the benefit of pension.

Notice of the writ petition was given to the respondents, who filed reply and denied the allegations. Short stand of the respondents is that since the petitioner did not complete the qualifying service of 15 years, therefore, he is not entitled to the service pension, as per the instructions relied upon by the petitioner, because these instructions were issued in the year 1987 and the petitioner was discharged from the Army prior to 1987 and, therefore, these instructions cannot be applied retrospectively.

I have heard Mr. R.S. Sangwan, the learned counsel for the petitioner and Mr. Anil Rathee, Advocate, learned counsel appearing on behalf of the respondents, and have gone through the record of this case.

The first contention raised by the learned counsel for the petitioner is that the petitioner was discharged from the Army not at his own request but under the directions of the respondents when he was considered as surplus. He submitted that as per instructions dated 30.10.1987, Annexure P-6, a person who has put in more than 10 years of service and less than 15 years of service is entitled to the pension equal to the service as per para 6.2 (b) of these instructions. Counsel further submitted that as per the para 6.2 (b) of these instructions, the petitioner is entitled to minimum pension of Rs. 375/- and the respondents have illegally denied pension to the petitioner. Therefore, he is entitled to the relief.

On the contrary, the learned counsel for the respondents submitted that the instructions dated 30.10.1987 Annexure P-6, have to be applied prospec-tively and not retrospectively. Under these instructions, only those jawans are entitled to the benefit of pension who have been declared surplus after 1.1.1986. Admittedly, the petitioner was discharged from service on 21.2.1954 and he had not completed 15 years of service. Therefore, he is not entitled to the benefit of instructions dated 30.10.1987.

I find force in the contention of the learned counsel for the respondents. Instructions dated 30.10.1987 cannot be applied retrospectively but have to be ap-plied prospectively and have been introduced for the benefit of those jawans, who retired from the Army service after 1.1.1986. The cut off date has a nexus and it cannot be said that this cut off date is arbitrary. This aspect of the matter has also been considered by the Hon''ble Supreme Court in Commander Head Quarter, Calcutta and others Vs. Capt. Biplabendra Chanda, and it was observed by their Lordships that a person who had retired earlier to 1.1.1986 is ineligible to pension under the rules in force then. This very point was further considered by the Hon''ble Supreme court in Union of India and others v. Vijayapurapu Sub-bayamma 2000(4) RSJ 289. Otherwise also, a plain reading of the instructions dated 30.10.1987 indicates that the Government of India never wanted to give the benefit to the persons who retired from the service before 1.1.1986. Therefore, I repel the first contention raised by the learned counsel for the petitioner.

It was then submitted by the learned counsel for the petitioner relying upon the provisions of Regulation 198 of Pension Regulations for the Army that as per this Regulation, the petitioner is entitled to the service pension as he has rendered more than 10 years of service.

There is a flaw in the argument raised by the learned counsel for the petitioner. Regulation No. 198 is not applicable to the facts of the present case. This Regulation is for the benefit of those jawans who have been discharged from the army on becoming invalid. It is the case of the petitioner that his discharge is on account of surplus. Therefore, the petitioner cannot take the benefit of Regulation No. 198.

It was then submitted by the learned counsel for the petitioner that Regulation No. 198 should be declared bad because a person who is discharged from the Army on becoming invalid is entitled to get pension if he serves the Army for 10 years, but a person who served more than 10 years and has been discharged from the Army not at his own request but on account becoming surplus, is not entitled to any benefit.

The submission of the learned counsel may look alluring at the first instance but on a deep scrutiny, it is devoid of any merit. The classification for granting pension to the jawans who have been discharged from the Army on becoming invalid and those who have served the Army and have been retired, is a reasonable one. The pension is granted to those jawans who served the Army for 15 years irrespective of the fact whether they are discharged on completion of the contract or they are discharged on becoming surplus. The category of those jawans who became invalid during service is a separate one. For those jawans/Army personnel, the Legislature has given special concession. In these circumstances, I again repel the contention raised by the learned counsel for the petitioner.

In short, the instructions dated 30.10.1987 (Annexure P-6) are to be applied prospectively and not retrospectively. Therefore, the petitioner is not entitled to the benefit of pension. In this view of the matter, I do not see any merit in this writ petition. The same is hereby dismissed with no order as to costs.

Petition dismissed.