Hawa Singh (Ex.Sep.) vs Union Of India
1998 Latest Caselaw 566 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has prayed for the issue of certiorary to quash the order dated the 3rd of July, 1997 passed by the Chief Record Officer, defense Security Force Records. The case of the petitioner could be shortly stated:

2. The petitioner was enrolled in the Territorial Army as combatant soldier on the 18th of August, 1959. The petitioner served during Indo-Pak military conflict during 1965. He was awarded a meritorious medal 'Samar Seva Star'. On the 2nd of July, 1970, he was discharged from the Territorial Army. He had rendered service for 10 years, 11 months & 14 days. He was re-enrolled on the 6th of November, 1970 in the defense Security Corps. He was discharged therefrom on the 30th of April, 1974 after having served for 3 years, 7 months & 24 days. The persons who had served in the Territorial Army and the defense Security Corps are granted service pension under Pension Regulations for the Army, 1961, which would require the qualifying service of 15 years. The petitioner claimed pension. That was not granted. He filed the CWP.2212/97 and this Court disposed of the same on the 28th of May, 1997 directing the authorities to consider and dispose of the claim of the petitioner. Thereafter, by order dated the 3rd of July, 1997, the claim of the petitioner for service pension was rejected.

3. In the grounds of the writ petition, it is stated:-

"(a) That the red entries may be ground for discharging soldier from the service as he may not be considered suitable for further retention in the service on the ground of in-efficient soldier. The red entries in the service record cannot be used as a weapon to mar the even one day service of the soldier. The Hon'ble Supreme Court has already lay down an authoritative law that even the service rendered by the boys has to be counted for the purpose of pensionary benefits.

(b) That even the interest of justice a soldier who had served the cause of the motherland cannot be denied the pension even in the interest of natural justice."

4. The order passed by the Chief Record Officer, defense Security Force Records, is as under:-

"1. Your case regarding service pension has been carefully reviewed afresh as per the direction of Hon'ble High Court order dated 28th May 97 and civil writ petition No.2212/97 and the decisions arrived at are incorporated in the succeeding para graphs.

2. You were initially enrolled in 112 Inf Bn (TA) on 18 August, 1959 and discharged therefrom on 02 Jul 70 (AN) under TA Act Rule 16(2) on compassionate grounds after rendering 6 years and 281 days embodied service.

3. You were re-enrolled in defense Security Force on 06 Nov 1970 and discharged from service on 30 Sep 74 (AN) under Army Rule 13(3) item III (v) on administrative grounds being 'UNDESIRABLE AND INEFFICIENT SOLDIERS'.

      You had incurred four red entries during your BSC service as  per      the details given below:- 
 

 
       Sr.  Place and      Nature of offence   Punishment Awarded 
     No.  date
          of offence 
     (a)  C/O 56 APO     Without sufficient  14 days RI in
          12.10.71       cause overstayed    military custody. 
                         leave granted from
                         4.9.71 to 10.10.71
                         (Total 37 days) 
     (b)  C/O 56 APO     Absented without    28 days detention
          04.09.72       proper authority    in military
                         from 4.9.72 to      custody. 
                         06.10.72 (Total
                         period of absence
                         33 days) 
     (c)  C/O 99 APO     Without sufficient  14 days detention
          13.05.74       cause overstayed    in military
                         leave granted from  custody. 
                         14.5.74 to 23.05.74
                         (Total period of
                         absence 10 days) 
     (d)  C/O 99 APO     Without sufficient  07 days detention
          22.07.74       cause failing to    in military
                         appear at the time  custody. 
                         fixed at the place
                         appointed for duty.
 

4. As per Rule 126 of Pension Regulation Army Part-I (1961), 'After reenrolment the individual shall have completed any consecutive period of three years service without two red ink entries or a court martial conviction to fulfill the eligibility conditions for counting his former service towards pension/gratuity with service in DSC. You had incurred 4 red entries during a short spell of 3 years and 249 days physical service with DSC. Because of you having incurred four red ink entries punishments, your former embodied service of 6 years and 281 days rendered with 112 Inf Bn (TA) could not be counted towards pension/gratuity in DSC as per rules on the subject. You had only 3 years and 249 days qualifying service with DSC as mentioned above. Even if your former service of 6 years and 281 days was counted towards pension/gratuity in DSC, then also your total qualifying service would have been only 10 years and 165 days at your credit at the time of your discharge from DSC service. As per Rule 132 of Pension Regulation Army Part-I (1961), unless otherwise provided for, the minimum qualifying colour service for earning a service pension is 15 years. You have not completed 15 years qualifying colour service for the reason stated above. You are, therefore, not entitled to any service pension under the provision of Rule 132 of Pension Regulations for the Army."

5. In the counter-affidavit, it is stated in paragraph 10:-

"The allegation that the respondents No.2 rejected the pension claim of the petitioner on the grounds of four red ink entries is totally false, misleading and hence denied. The petitioner had rendered only 3 years and 249 days service with defense Security Corps. His former embodied service of 6 years and 281 days rendered with 112 Inf Bn (TA) was not counted towards pension/gratuity with service in defense Security Corps as he did not fulfill the eligibility conditions laid down in Rule 126 of Pension Regulations for the Army Part I (1961) which stipulates that `after re-enrolment, the individual shall have completed any consecutive period of three years service without two red ink entries or a court martial conviction' to fulfill the eligibility conditions for counting his former service towards pension/gratuity with service in defense Security Corps. A copy of Rule 126 is hereto annexed and marked as Annexure R2(b). The petitioner had incurred 4 red ink entries during a short spell of 3 years and 249 days physical service with defense Security Corps as men- tioned in DSC Records letter No.PEN/10195006//64 dated 03 July 1997, addressed to the petitioner. Even if his former service of 6 years and 281 days was counted towards pension/gratuity with service in defense Security Corps, even then his total qualifying service would have been only 10 years and 165 days to his credit at the time of his discharge from defense Security Corps. As the petitioner had not completed 15 years of qualifying colour service, he is not entitled to get Service Pension within the frame work of rules in the subject."

6. The learned counsel for the petitioner, Mr.S.M.Hooda, relying upon the judgment of the Supreme Court in "Raj Pal Sharma & Others Vs. State of Haryana & Others" and "Dharambir Vs. State of Haryana" and "Mahinder Singh Vs. State of Haryana", 1985 (Supp) S 72, contended that the reasoning given by the Chief Record Officer in the impugned order is erroneous and contrary to the judgment of the Supreme Court. In the case before the Supreme Court, the proviso to Rule 4 of Punjab Government National Emergency (Concession) Rules, 1965 was challenged. Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965 reads as under:-

      Increments,  seniority  and pension_Period  of  military  service      shall count for increments, seniority and pension as under:- 
 


 

      (i) Increments: The period spent by a person on military service,      after attaining the minimum age prescribed for appointment to any      service or post, to which he is appointed, shall count for increments.  Where no such minimum age is prescribed the  minimum  age      shall  be as laid down in Rules 3.9, 3.10 and 3.11 of the  Punjab      Civil Services Rules, Volume II. This concession shall,  however,      be admissible only on first appointment. 
 


 

      (ii)  Seniority:  The  period of military  service  mentioned  in      clause  (i) shall be taken into consideration for the purpose  of      determining  the seniority of a person who has rendered  military      service." 
 

 
 

 7.   The  Government  of Punjab added the proviso to Rule 4 which  runs  as follows:- 
 


       "Provided  that  a  person who has been  released  from  military      service  on  compassionate grounds shall not be entitled  to  any      concession under this rule."  
 

8. The proviso was challenged before the Supreme Court earlier in "Ex-Captain K.C.Arora Vs. State of Haryana", 1984 3 S 281. The Supreme Court struck down the proviso as being ultra vires the Constitution. The Supreme Court followed its earlier decision.

9. I fail to see how the ratio laid down by the Supreme Court could be made applicable to the facts of this case. I do not find any error in the impugned order. Therefore, the writ petition is dismissed.

10. There shall be no orders as to costs.