Group Captain A.S. Gangoli And ... vs Union Of India, Represented By The ...
2001 Latest Caselaw 233 Bom

JUDGMENT

R.M. Lodha, J.

1. By means of this writ petition, the Petitioners seek to impugn the Note 1 appndd to para 5 of the Respondent's decision contained in letter dated 30.10.1987 (Exh. C.) annexed with writ petition as being violative of the Article 14 of the Constitution of India, the Petitioners have further prayed that the Respondent be directed to grant to the Petitioners the weightage of 7 years while computing their pension and weightage of 5 years while computing their retirement gratuity. The Petitioners have also claimed for interest on delayed payment of due pensionary and gratuity amount.

2. The Petitioners were employed in Indian Air Force (in short 'IAF') as Group Captains, Wing Commanders etc. and put in about 20/25 years of service. It is the case of the Petitioners that the Respondent devised the scheme to solve. The problem of shortage of junior ranks and a surplus in the middle seniority bracket of a large number of officers, whereby the Public Sector undertakings could approach the IAF for release of surplus officers. For the purpose of Vayudoot Ltd.(Public Sector Undertaking), it is the case of the Petitioners that IAF encouraged them and other officers to apply for premature retirement and join Vayudoot in public interest. Accordingly the Petitioners applied for premature retirement in public interest for joining public sector undertaking viz. Vayudoot. By order dated 6.5.1987, the Respondent approved the Petitioners' premature retirement from IAF in public interest with effect from 18.5.1987. In the said order the Respondent informed the Petitioners that in respect of prorata pensionary benefits, admissible to them on absorption in Vayudoot, the separate order shall be issued. The Petitioners have averred that they were assured that there would be no loss of benefits of pension, gratuity or any other retirement benefits and that they would have the benefit of 100% computation of pension yet the Respondent by its decision as contained in the letter dated 30.10.1987 has deprived the Petitioners of the weightage of 7 years in the matter of pension and weightage of 5years in the matter of gratuity. The Petitioners made representations to the concerned authorities for redressal of their grievances and as nothing was done by them, the Petitioners were constrained to file the present writ petition.

3. Mr. Rambhadran, learned Counsel appearing for the Petitioners contended that para 1 of the Note appended to the communication dated 30.10.1987 which deprives the Petitioners weightage of 7 years for pension and weightage of 5 years in the matter of retirement gratuity is per se violative of Article 14 of the Constitution of India and discriminatory

inasmuch as the pilots of IAF, who retired prematurely on their own personal request either for better prospects or otherwise are given such weightage of 7 years for the purpose of pension and weightage of 5 years for the purpose of retirement gratuity while Petitioners and like who have retired prematurely in public interest for joining public sector are denied such weightage of 7 years for pension and 5 years in retirement gratuity.

4. The Respondent has filed the counter to the writ petition and in para 10 of the counter affidavit dated 4th November, 1990 they have set up the defence that the officers who retired prematurely on account of superannuation or any personal reasons are treated as normal retirees for all purposes and, therefore, they have allowed weightage to them. It is Stated that Air Force Officers are allowed to retire prematurely on two grounds viz. (1) for personal reasons which are generally supersession, where such officers do not want to serve under their juniors promoted to higher rank, and (2) for absorption in the Public Sector undertakings/ autonomous bodies. It is Respondent's case that the officers who get premature retirement for absorption in public sector undertakings are not entitled to any weightage. In additional affidavit dated 7.2.2001 filed by the respondent it is stated that eligibility for pension for the first category i.e. Armed Forces Personnel who were/are retired on superannuation and prematurely retired on personal reasons, minimum service required is 20 years, while in the case of second category, i.e. Armed Forced Personnel who were/are retired prematurely for permanent absorption in Government/Semi Government organisations, the minimum eligibility is that the employee must have rendered 10 years or more service in IAF. It is, thus, stand of the Respondents that eligibility criteria for both the categories of premature retirees are different and they form separate class. According to respondent there is neither any discrimination nor violation of Article 14 of the Constitution of India.

5. Pension Regulations for the AIR Force, 1961 relates to pensionary service of personnel of Air Force and also regulations relating to the delegation of powers and pension procedure. Part I contains regulations relating to pensionary benefits of personnel of Air Force, while Part II contains regulations relating to the delelgation of various procedure affecting the personnel whose pensions are regulated by regulation in Part I. Regulation 3 of Part I of Regulations aforesid reads thus :-

"3. The full rate of pension or gratuiry provided for in these Regulations shall not be granted unless the service rendered has been satisfactory. If the service has not been satisfactory, the Competent Authority may make such reduction in the amount of pension or gratuity as it thinks proper."

Regulation 16 reads thus :-

"Officers cashiered, dismissed, removed or called upon to retire

16. (a) When an officer who has to his credit the minimum period of qualifying service required to earn a pension, is cashiered or dismissed or removed from the service, his pension may, at the discretion of the President, be either forfeited or be granted at a rate not exceeding that for which he would have otherwise qualified, had he retired on the same date.

(b) When an officer who has to his credit the minimum period of qualifying service required to earn a pension is called upon to retire or to resign, or in the event of his refusing to do so is required from or gazetted out of the

service, he may at the discretion of the President be granted a pension at a rate not exceeding that for which he would have otherwise qualified, had he retired on the same date in the normal manner."

6. We find that Regulation 3 enables reduction of amount of pension or gratuity if service is not satisfactory. Under Regulation 16 the discretion is given to the President to reduce or forfeit pension of the officer who has to his credit minimum period of qualifying service only in the event of his cashiered or dismissed or removed from the service. The other relevant Regulations are Regulations 22. 25, 26 and 36. The aforesaid Regulations for the Army came up for consideration before the Apex Court in Union of India and Ors. v. Lt. Col. P. S. Bhargava. The Apex Court on consideration of the said Regulations held thus :-

"16. The mere perusal of Regulation 3 shows that the Competent Authority may make a reduction in the amount of pension or gratuity if the service has not been satisfactory. The reading of this Regulation clearly shows that normally full rate of pension or gratuity is to be granted unless the service which is rendered is not satisfactory. It is not the case of the appellant that the respondent's service was not satisfactory. Therefore, no reduction of pension or gratuity under Regulation 3 could have been ordered.

18. Regulation 16(a) gives the President the power either to forfeit or to reduce the rate of pension in the event of an officer being cashiered, dismissed or removed from the service. Under sub-regulation (b) of Regulation 16, if an officer is called upon to retire or resign, he may at the discretion of the President be granted a pension at a rate not exceeding what he would have otherwise qualified. Regulation 16 gives the power to the President to reduce or forfeit the pension of an officer who has to his credit the minimum period of qualifying service only in the event of his being cashiered, dismissed or removed from the service. Even in such a circumstance, there is no automatic forfeiture of pension or gratuity. An officer whose service is terminated by reason of his being cashiered, dismissed or removed from the service would normally be entitled to get his pension though the President has a right to forfeit or reduce the pension.

19. Regulation 16 does not cover a case of voluntary resignation. Regulation 16(b) does refer to a case where an officer who has to his credit the minimum period of qualifying service being called upon to resign whose pension can be reduced. Had the Regulation intended to take away the right of a person to the terminal benefits on his voluntary resigning, then a specific provision similar to Regulation 16(b) would have been incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntary resign, cannot be automatically deprived of the terminal benefits ."

7. In the present case there is no dispute as regads entitlement of the Petitioners to the benefits of pension and gratuity under Regulations since they have to their credit minimum qualifying service. The dispute is in respect of denial to the petitioners benefit of weightage of 7 years in respect of pensionary benefits, and weightage of 5 years as regards gratuity which is being otherwise given to the officers who have also prematurely retired but for personal reasons. It would be appropriate and relevant to refer to communication dated 30.10.1987 containing the decision of the Respondent. The said communication dated 30.10.1987 sent to chief of Army, Naval and Air Staff contains the Government decisions on the recommendations of IVth Central Pay Commission regarding pensionary benefits. Para 5 of the communication dated 30.10.1987 is as follows :

"Qualifying service

(a) The term "Qualifying Service (QS) shall means :

Category

Qualifying service recknonable for Pension Death- cum- Retirement

 

Retiring/Service/ Invalid/Terminal Gratuity

   

Retirement Gratuity

Death gratuity

Officers

Actual qualifying service rendered by the officer plus a weightage (in years) appropriate to the rank last held as indicated in (b) below subject to the total qualifying service including weightage- not exceeding 33 years.

Actual qualifying services plus a weightage of 5 years subject to the total qualifying service in-cluding weightage not exceeding 33 years.

Actual qualifying service rendered plus a weightage of 5 years subject to total qualifying service not exceeding 3 years. In case actual service is less than 5 years, no weightage shall be given.

Actual qualifying service tendered.

Personnel below officer rank (Including NCs (E)) and Honorary Commissioned service officers.

Actual qualifying service rendered by the individual plus a weightage of 5 years subject to the total qualifying service including weightage not exceeding 33 years.

Same as above

Same as above.

Same as above.

(b) Weightage for the purpose of calculation of pension of commissioned officers will be as given below :-

(1) Service officers (other than MNS) Rank

Army

Navy

Air force

Weightage in Yrs.

Subaltern

Sub Lt

Pit.

Offr/FIg.Offr

Captain

Lt

Fit.

Lt.

Major

Lt Cdr.

Sqn Ldr.

Lt.

Col. (TS)

Cdr.

(TS)

Wg.

Cdr (TS)

Lt.

Col. (S)

Cdr.

(S)

Wg.

Cdr(S)

Col.

Captain [with less than 3 years 10 months service

Gp.

Capt.

Brig.

Capt.

(with years 10 months service and more)

Air Cmde.

Maj.

Gen

Rear Admiral

AVM

Lt.

Gen.

Vice Admiral

Air Marshal

Lt.

Gen/ (Army Commander)

Vice Admiral /(FOS-in-C)/VCNS

Air Marshal (ADs-in-C) VCAS

COAS

CNS

CAS

(iii) MMS Officers Rank

Weightage In years

Captain

Major

Lt.

Col.

Col.

Notes :

(1) There will be no weightage for officers and personnel below officer rank who retire prematurely for permanent absorption in public sector undertakings and autonomous bodies.

8. But for the aforesaid Note 1 which provides that there will be no weightage for officers and personnel below officer rank who retire prematurely for permanent absorption in public sector undertakings and autonomous bodies, the Petitioners would be entitled to weightage of? years for pension benefits and gratuity. The class carved out by Note 1 by denying the officers and personnel the weightage who retired prematurely for permanent absorption in public sector undertakings and autonomous bodies cannot be said to have any rationale. The Respondents have stated in their counter and additional affidavit that premature

retirement is permitted to the Air Force Officers on two grounds viz. (i) for personal reasons and (ii) for absorption in the public sector undertakings/autonomous bodies. The Respondents have admitted that the officers falling in the first category are entiteld to weightage as per communication Exh. C. dated 30.10.1987. The reason given for that is the officers and personnel who seek premature retirement on personal reasons are treated as normal retirees. If the officers and personnel who were given premature retirement for personal reasons are entitled for weightage as per communication dated 30.10.1987, we see no reason why the officers and personnel who have sought premature retirement in public interest to join public sector undertakings should not get the same benefit of weightage under communication dated 30.10.1987, the classification made by the Respondent for giving benefit of weightage to one class of the officers and personnel who are given premature retirement for personal reasons and to deprive the other class of the officers and personnel who get premature retirement in public interest for joining public undertakings cannot be justified. There is absolutely no reasonableness in the classification made by the Respondent nor is there any nexus from the object sought to be achieved by making such classification. Merely because in the additional affidavit different period of qualifying service prescribed for permitting the officer to seek premature retirement on personal reasons and premature retirement in public interest for joining public undertakings is stated, the two classes of premature retirees cannot be justified for the purpose of benefit of weightage regarding terminal benefits viz. pensionary and gratuity benefits. Take a case where an officer on completion of prescribed period of service seeks premature retirement on personal reasons which is granted and thereafter he joins service in public undertaking, such officer is entitled to weightage as per communication dated 30.10.1987 in respect of pension and gratuity but the officer who in the public interest for joining public sector undertakings got premature retirement after completion of prescribed service is not granted benefit of weightage. How can refusal to grant benefit of weightage to the other case be justified? Either do not give weightage at all to the premature retirees but if you give, no justifiable differentiation can be made between the two classes of premature retirees carried out by the Respondent. The classification is totally without basis and thus, clearly suffers from vice of discrimination. We are of the considered view that there is clear discrimination by the Respondent in depriving the Petitioners the benefit of weightage under communication dated 30.10.1987 on the basis of Note 1 appended to para 5 of the said communication. The Note 1 appended to para 5 of the said communication dated 30.10.1987, for the reasons aforesaid deserves to be declared inoperative being violative of Article 14 of the Constitution of India.

9. Accordingly, we allow the writ petition and make the Rule absolute by declaring that Note 1 appended to Para 5 of the Responent's letter dated 30.10.1987 (Exh.C) is illegal and inoperative. We further direct the Respondent to grant to the Petitioners the weightage of 7 years while computing their pension and weightage of 5 years while computing their retirement gratuity. The Respondent is directed to recompute the pension and retirement gratuity of the petitioners as per aforesaid direction within

3 months and make payment of balance amount to the Petitioners immediately thereafter. The Respondent shall be liable to pay interest at the rate of 9% p. a. If such due amount is not paid to the Petitioners within 4 months from today or in other words within one month from the date of recomputation of pension and retirement gratuity.

No costs.

Parties may be provided ordinary copy of this order duly authenticated by the Court Associate on payment of usual copying charges.