AI Structured Summary
Not yet generated for this judgment
Judgment
K. Narayana Kurup, J.—The Petitioner was a regular combatant of the Indian Army. He joined the Army on 19th March 1959 and was discharged on 15th December 1974 after completing 15 years, 9 months and 2 days of regular service. The grievance of the Petitioner is that notwithstanding the fact that he possesses the qualifying service necessary for pension, the Respondents have denied pensionary benefits to him. The fact that the Petitioner has completed 15 years, 9 months and 2 days is borne out by Exhibit P-1 certificate of service. Since Exhibits P-2 and P-3 representations preferred by the Petitioner did not elicit any response, the Petitioner has moved this Court with the present writ petition praying for the issuance of a writ of mandamus directing the Respondents to disburse the pension and other benefits due to the Petitioner with immediate effect.
The Respondents have filed a counter affidavit disputing the claim of the Petitioner.
The question that arises for consideration in this Original Petition is whether the Petitioner is eligible to pensionary benefits reckoning 15 years, 9 months and 2 days as the qualifying service. The Respondents have a case in their counter affidavit vide paragraph 6 as follows:
The Petitioner''s date of birth is 23rd March, 1944. He was enrolled in the Army on 19th March, 1959 as a Sapper Boy and was transferred to man service/re mustered as a recruit on 23rd March, 1961. In accordance with Rule 122(a)(II) of Pension Regulations Part I period of service rendered before reaching the age of 17 years is treated as non-qualifying service for pension and gratuity. In addition period due to absence without leave/overstaying leave is also not to be counted for pension. Thus the Petitioner''s nonqualifying service is as under:
(a) 19th March 1959 to 22nd March 1961 Spr. Boy 2 yrs. 04 days
(b) 4th January 1971 to 12th February 1971 AWL 40 days
(c) 23rd October 1967 to 9th November 1967 OSL 18 days
(d) 28th November 1972 to 29th November 1972 AWL 02 days
(e) 29th January 1973 to 29th January 1973 AWL 01 day
(f) 30th September 1973 to 1st October 1973 AWL 02 days
(g) 25th May 1974 to 29th May 1974 AWL 05 days
2 yrs. 72 days
Going by the statement contained in the counter affidavit the service rendered by the Petitioner before he attained 17 years of age cannot be counted for pension. I am not impressed by the stand taken by the Respondents. On the contrary, I am of the view that the Petitioner is entitled to due weight age of the entire service rendered by him after he was recruited into the Army on 19th March 1959 irrespective of the fact that he was below the age of 17 years.
The out-dated notion of pension being a bounty depending upon the will of the employer not enforceable as a legal right has been discarded by the decision of the Apex Court in Deokinandan Prasad Vs. The State of Bihar and Others, wherein the Apex Court ruled that pension is a legal right and the payment of which does not depend upon the discretion of the Government. It was further held that the grant of pension does not depend upon any one''s discretion and it is only for purpose of quantifying the amount having regard to the service and other allied matters that it may be necessary for the authority to pass an order to that effect. The nature of pension and its underlying philosophy have been explained at great length by Desai, J. in Nakara v. Union of India AIR 1983 S.C. 180. His conclusions are:
(1) Pension is not an exgratia payment, but a payment for past service rendered; and
(2) It is a social economic welfare measure rendering socio economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they will not be left in the lurch.
On a careful consideration of the principles laid down by the apex court I cannot but hold that the object of pension is to further socio economic justice which is one of the pillar stones of our constitutional edifice. Employees who retire after rendering satisfactory service to the State have to be properly looked after not on the ground of charity but on the basis of their legal and constitutional rights. In this connection it must be borne in mind that pension is not a gratuitous payment but a deferred wage payment of which can be legally enforced. Extending this principle of deferred wages it must be held that so long as the Petitioner was paid wages for the period below the age of 17 years, he must also be paid deferred wages and the same cannot be denied to him on the specious plea that service rendered by him before he attained the age of 17 years has to be treated as non-qualifying service. With the recognition of the notion of pension being a legal and constitutional right the expression ''qualifying service'' must receive a liberal interpretation so as to include service rendered before the Petitioner attained 17 years of age. The State having accepted and utilised the service of the Petitioner and paid wages for the period before he attained 17 years of age cannot now turn round and say that they will not pay ''deferred wages'' to the Petitioner. I find absolutely no rational basis for excluding the service rendered by the Petitioner before he attained the age of 17 years, nor any such basis pleaded before this Court. In my opinion the stipulation contained in Rule 122(a)(II) of the Pension Regulations Part I that service rendered before reaching the age of 17 years will be treated as non-qualifying service for pension and gratuity is arbitrary and violative of the legal and constitutional right of the Petitioner. The criteria adopted in the said rule in excluding the service rendered by the Petitioner before he attained the age of 17 years is arbitrary, the classification being not based on any discernible rational principle and even wholly unrelated to the objects to be achieved by the grant of pension. That apart, in Ext. P-1 discharge certificate the Respondents have no case that the Petitioner is not eligible for pensionary benefits. On the other hand, in Ext. P-1 it is categorically stated that the Petitioner has completed 15 years, 9 months and 2 days (15 years and 272 days). The non-qualifying service as per Ext. P-1 is only 68 days without reckoning the service rendered by the Petitioner before he attained the age of 17 years and the letter service is not seen excluded from the qualifying service in Ext. P-1. As already observed, the service rendered by the Petitioner before he attained the age of 17 years is not liable to be excluded on the ground that he has not attained the age of 17 years. Then, the question is whether the non-qualifying service of 68 days can excluded. Even assuming the said 68 days are also excluded, the Petitioner has still got more than 15 years of service and servicemen who complete 15 years of qualifying service are entitled for pension and other pensionary benefits. The Respondents have no case that the Petitioner was dismissed from service in which case it should have been preceded by an enquiry or a court martial as the case may be. Admittedly, that has not been done.
The question then arises whether the rule in question which denies pensionary benefits due to the Petitioner by excluding the service rendered by him before he attained 17 years of age is to be declared as ultra vires being violative of the constitutional right of the Petitioner. Taking note of the humanism which is one of the fundamental duties enshrined in Part IV A of the Constitution and which binds the State employer also, this Court must adopt a liberal and progressive approach in interpreting the rule providing for grant of pensionary benefits. The State having utilised the service of the Petitioner before he attained the prescribed age cannot now turn round and say that such service cannot count for pension. So viewed, in the place of age 17 one must read the age of the Petitioner at the time of initial appointment even though it be a little less than 17. Such an interpretation of reading down will avoid the need of invalidating the rule. When two interpretations are possible, one that upholds the provision has to be preferred.
In the light of the aforesaid discussion, I hold that the Petitioner is entitled to pensionary benefits reckoning 15 years, 9 months and 2 days as the qualifying service irrespective of his age at the time of his initial recruitment on 19th March 1959.
In the result, I allow this Original Petition and direct Respondents 3 to 5 to disburse to the Petitioner his pensionary benefits reckoning 15 years, 9 months and 2 days as the qualifying service within three months from the date of receipt of a copy of this judgment with admissible interest.
Original Petition is allowed as above.