JUDGMENT Khan, J.
1. Petitioner is clamouring for pension and respondents are denying it to him for shortfall of 254 days in his qualifying service under the relevant rules. He wants this shortfall to be condoned or his previous service rendered in Navy to be counted towards his qualifying service.
2. Petitioner first joined Navy on 2.3.1956. He was discharged from there on 5.6.1957 after 1 year 103 days for professional unsuitability. He was later enrolled in the Army (Corps of Signals) on 25.6.1957 for 20 years combined colour and reserved service. He, however, failed to indicate the service rendered by him in the Navy in the enrollment form. Meanwhile, while he was serving in the Army, he was selected for a contract service in defense Services of Zambia. He claims that he was sponsored and selected by Government of India through Army Headquarters and to fulfill the international commitments after thorough screening and tough competition and that the whole process in this regard was carried out and completed by the Army. He relies upon the defense Ministry's letter dated 4.2.1997 for this and asserts that it was because of this that he was transferred to Pension Establishment and discharged on 13.10.1971 under Army Rule 13(1)(i)(b) and sent to Zambia on the same date after having completed 14 years and 111 days service. His grievance is that he thereafter asked for his pensionary benefits and made several representations to respondents in this regard but in vain. He was later constrained to file CW No. 3429/98 which was disposed of on 3.8.1999 whereby respondents were directed to take a decision on his representation which they eventually rejected by order dated 22.11.1999 on the ground that he was discharged on compassionate grounds at his own request and that his service in the Navy could not be counted as he had failed to declare it and even elected to count his past service towards the pensionary benefits and gratuity in his Enrollment Form.
3. Petitioner has filed this petition now to challenge this and is asking for either reckoning of his service rendered in the Navy towards his qualifying service or for condoning the shortfall of 254 days to entitle him for grant of pensionary benefits.
4. Petitioner's case, on the first aspect, is that he was not issued the requisite Discharge Certificate by the Navy which it was obliged to do under Section 7(4) of the Navy Act and he had, therefore, no occasion to indicate the service rendered by him in the Navy at the time of his enrollment in the Army. Apart from this, he says that his enrollment form was filled up by the then Recruiting officer and he had no knowledge of how it was filled up and whether he had disclosed the relevant information and satisfied the due requirement. He also denies that he had ever sought any voluntary discharge from Army on compassionate grounds which otherwise was not permissible at the relevant time because of the Army operations in Bangladesh when all reservists were being called and no leave or discharge was allowed. Nor had he any compulsion to do so and to loose his pensionary benefits of getting out of service before completing his qualifying service of 15 years. On the contrary, it was in fulfillment of Government of India's international commitments to provide technical Army manpower to Zambian Army that he along with some others was selected on the understanding that he would be granted pension. So much so that only those personnel were selected for contract service in Zambia who had become due for grant of pension or were transferred to Pension Establishment to entitle them to pension. He also complains that while all others sent to Zambia in similar circumstances were granted pensionary benefits, he was denied this on hyper-technical reasons.
5. Respondents' stand is that petitioner could not be granted pensionary benefits as he had not completed the requisite qualifying service of 15 years under para 132 of Army Pension Regulations of 1961. He was enrolled in the Army on 25.6.1957 and discharged on 13.10.1971 after completing 14 years and 111 days service. He was accordingly falling short by 254 days which was not liable to be condoned as he was discharged from service on his own request. It is also pointed out that under para 125(a) or Pension Regulations, condensation of deficiency of service was not applicable to personnel discharged at their own request. His previous service rendered in the Navy could also not be counted towards his qualifying service as he had failed to disclose it at the time of enrollment under para 126 of the relevant pension regulations which require the previous service to be allowed by the competent authority for purposes of pension and gratuity provided the individual had declared it and disclosed the cause of his discharge and had elected to reckon that service towards pension and gratuity in his Enrollment Form.
6. By court order dated 10.9.2002, respondents were required to produce the relevant record to show whether petitioner was discharged from Army under Rule 13(1)(i)(b) on compassionate grounds and whether he was selected and sponsored for service in Zambia at his request or to fulfill the commitment of Government of India to provide military services to Zambian Army. They have failed to produce any record. Their counsel Mr. Datar has, however, produced an unattested photocopy purported to be of petitioner's application for discharge on compassionate grounds which is not of much help in the absence of other relevant record.
7. Be that as it may, all that remained to be examined was whether petitioner could be deprived of his pensionary benefits because of his failure to indicate the past service rendered by him in the Navy in his enrollment form and whether respondents were justified in refusing to condone his shortfall of 254 days in the qualifying service on the plea that he had sought voluntary discharge on compassionate grounds.
8. There is no dispute that para 126 of the Pension Regulations provides that former service rendered by combatants and enrolled non-combatants may be allowed to be credited and reckoned towards pension and gratuity by the competent authority - subject to fulfillment of conditions stated in column 5. Condition 1 in this column requires an individual to declare his former service and cause of discharge at the time of re-employment/re-enrollment and also to elect whether he wanted to count that service towards pension and/or retirement/death gratuity. It also says that the election made by him once shall be final. The relevant condition for facility reads thus:-
" Condition 1 - At the time of re-employment/ re-enrolment, the individual shall have declared his former service and cause of discharge there from and elected to count that service towards pension or gratuity and retirement/death gratuity. The election once made shall be final."
9. It goes without saying that the reckoning of the past service under para 126 falls within the discretion of the competent authority who may order to credit it to the individual's qualifying service subject to the conditions attached thereto. But the question that arises is whether non-fulfillment of such conditions in peculiar circumstances would disentitle an individual from pensionary benefits for good, more so when the individual either had no knowledge of this or had no hand in the alleged failure to satisfy the requirements. In our view, it would be too much to hold so by placing a rigid interpretation on the terms of condition (1) and overlooking the circumstances in which petitioner had failed to indicate his past service in the Enrollment Form.
10. Petitioner's version is that his enrollment form was filled up by the Recruiting officer at the relevant time and he had no knowledge of now different columns of the form were filled up and whether the relevant information was disclosed in these or not. He also says that he had no occasion to disclose his previous service in the Navy as he was no issued the requisite discharge certificate by the Navy though he was entitled to be furnished this under Section 17(4) of the Navy Act.
11. We have no reason to disbelieve this because discharge certificate of the Navy was admittedly made available to petitioner on diplomatic intervention years after some time in 1976. His reservation about the disclosure of his past service at the time of enrollment was not, therefore, without any basis. It is not anybody's case that he had himself filled up the enrollment form and had failed to disclose his past service in the Navy. He was after all enrolled as Matric Entry Rate (MER) soldier and may not have known the requirements for entitlement to pension at the time of entry in service. No default could, therefore, be attributed to him in this regard in the peculiar circumstances of the case to deprive him of his past service being credited towards his qualifying service which otherwise fell in the discretion of the competent authority.
12. The respondent's stand on the other aspect also does not carry conviction. Though they claim that petitioner had sought voluntary discharge on compassionate grounds from Army and had also opted for contract service in Zambia on his own, they have failed to produce any record to substantiate this. On the contrary, petitioner has placed reliance on defense Ministry's letter dated 4.2.1971 to show that he was sponsored and selected pursuant to Government of India's commitment to provide technical army man power to Zambian Army for which all formalities were completed by the Army Headquarters and for which he was discharged from Army under Rule 13(1)(i)(b) after being brought on Pension Establishment. There is also no rebuttal to his claim that only those who qualify for pension or were brought to Pension Establishment for being granted pension were selected for contract service to Zambia.
13. All this belies that petitioner had sought voluntary discharge on compassionate grounds. There is nothing to show that he was under any compulsion to do so and to abandon his 14 years or more service in the Army half way to deprive himself of the pensionary benefits only for taking a trip to Zambia. The sequence of events, on the other hand, shows that petitioner along with some others was sponsored and selected for contract service in Zambia in fulfillment of international commitment by the Government of India and for this his discharge was processed under Rule 13(1)(i)(b) by bringing him on the pension Establishment. The copy of discharge certificate placed by him on the record also suggests that Army Headquarters had picked up personnel who were either entitled to pension or were to be granted pension after being brought on Pension Establishment. Therefore, once it was found that petitioner had not sought discharge on his own on compassionate grounds, there was no hitch in condoning his shortfall in qualifying service under para 125 of the Pension Regulations.
14. We, thus, see no reason why petitioner should be deprived of his pensionary benefits in peculiar facts and circumstances of this case.
15. This petition is accordingly allowed and respondents are directed to treat his case as a special case and either to reckon and credit his past service in the Navy to his qualifying service of 15 years or to condone his shortfall of 254 days to entitle him to draw pensionary benefits. Requisite orders are directed to be passed by all concerned functionaries of Respondents within four months of receipt of this order.