Ex. Major (Mrs) S.R. Alimchandani vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 722 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present petition is filed by the petitioner praying for an order granting service pension to the petitioner from the date of her retirement along with interest on the arrear pension payable to the petitioner.

2. The petitioner was initially appointed as a short service commissioned officer for a period of three years, which was, however, extendable to a total period of seven years. An office order was issued by the respondent on 28th November, 1960 whereby the tenure of short service commissioned officer was made extendable up to 9 years by giving yearly extension. Another office order was issued by the respondent on 16th March, 1963 by which the tenure of short service commissioned officer was made extendable from 9 years to 10 years in the Army Medical Corps in special cases. Pursuant to the aforesaid office orders issued by the respondents from time to time, the petitioner remained as a short service commissioned officer for a period of 10 years. An army instruction was issued by the respondents on 15th December, 1962 whereby short service commissioned officers were allowed to exercise their option for being appointed as emergency commissioned officers in the Army Medical Corps subject to the rules and regulations applicable. In terms of the aforesaid circulars and instructions issued by the respondent, option was also called for from the petitioner, who was working as a short service commissioned officer and was completing her full tenure of 10 year, to submit her option in the Army Medical Corps. The petitioner submitted her option for being engaged as an emergency commissioned officer under her letter dated 8th February, 1963. Pursuant to the said option exercised by the petitioner, she was appointed on emergency commission in Army Medical Corps under order dated 31st July, 2004.

3. In terms of the Army Instruction No.191/62, the maximum age limit for grant of permanent commission to a non-regular officer with no post-graduate qualification is 30 years. As the petitioner had already crossed 30 years of age at the time of her intial appointment as short service commissioned officer, she could not have been at all considered for permanent commission. The petitioner thereafter continued to serve on emergency commission till her superannuation from service on 20th February, 1979. Thereby the petitioner had rendered 24 years and 9 months of unbreakable service to the army. By virtue of the aforesaid service, if the petitioner was working on permanent commission, in that event she would have been considered for a pensionable service of 25 years as she has rendered 24 years and 9 months of service. The petitioner was not paid any pension and her request for payment of regular pension was rejected by the respondent on the ground that the petitioner served only on short service commission and on emergency commission and never worked on permanent regular commission and, therefore, she is not entitled to receive any pension under the pension regulations.

4. It was submitted by the counsel appearing for the petitioner that the petitioner is shown to have been working in short service regular commission and, therefore, she should have been considered as a permanent regular commissioned officer and should have been given all retiral benefits including pension. In support of his contention, the counsel relied upon the word 'regular' as appearing in the army instructions. Reliance is also placed on the words ''Short Service Regular Commission'' as mentioned in the Gazette of India Notification No. 2531 dated 6th October, 1965 whereby the petitioner was granted Emergency Commission with effect from 1st March 1964. It was also submitted that the petitioner was also entitled to weightage as per Government of India, Ministry of defense, notification dated 3rd February, 1998 and 30th October, 1987 and, therefore, on getting special weightage of service, the petitioner would be entitled to pension for full 33 years of service.

5. The aforesaid submission of the counsel appearing for the petitioner was, however, refuted by the counsel appearing for the respondents by contending that the petitioner, at the time of her initial appointment on short service commission, had crossed 3 years of age and, therefore, even at that stage, she could not have been considered for permanent regular commission. She drew our attention to the army instructions wherein it is provided that the maximum age limit for grant of permanent commission ta non-regular officer with no post-graduate qualification, is 30 years. She also submitted that since the petitioner was not a permanent regular commissioned officer, she was not entitled for grant of pension under the pension regulations. In support of her contention, she had drawn our attention to the various army instructions, which are placed on record.

6. In the light of the aforesaid submissions of the counsel appearing for the parties, we may discuss the various aspects which arise for our consideration. It cannot be disputed that at the time when the petitioner was given short service commission, she was of more than 30 years of age and, therefore, at that stage, under no circumstance the petitioner could have been given a permanent regular commission. The petitioner was put under short service commission, which has a tenure of service, which is exendable initially to a total period of 7 years but by subsequent orders passed the said tenure of service was extended from 7 to 9 years and thereafter to 10 years in Army Medical Corps. The petitioner initially was appointed for 3 years and her service was extended from time to time, in terms of which she completed 10 years of service as short service commissioned officer. Thereafter, she was given an option for emergency commission in Army Medical Corps in terms of the army instructions dated 15 th December, 1962. The petitioner in terms of the aforesaid instructions, exercised her option for emergency commission under her letter dated 8th February, 1963. Pursuant to the said option exercised by the petitioner, she was appointed on emergency commission in Army Medical Corps by order dated 31st July, 1964. So far the short service commissioned officers in Army Medical Corps are concerned, a circular is issued, which is annexed at page 56 of the paper book, laying down that the service on short service commission would not be pensionable and that on final termination of their service , the officers would be eligible, subject to their service being satisfactory, to a gratuity for Rs.1000/- for each complete year of service in short service commission including extension thereof. In the said circular it was also mentioned that the officers in short service commission would be given two chances for taking up the departmental examination for permanent regular commission at any time after completion of two years of short service commission service and before completion of five years of service provided they fulfill the condition of eligibility. The petitioner admittedly did not fulfill the eligibility criteria for being appointed to permanent regular commission. Therefore, she was never appointed as a permanent regular commissioned officer. After completing ten years of service in short service commission, which is the maximum period of service, an option was given to the petitioner to be an energency commissioned officer. She expressed her option and accepted the said commission. The terms and conditions of such appointment are also governed by the army instructions dated 15th December, 1962. Clause 19 of the said instructions provides the rule for grant of permanent regular commission. It provides that an officer granted the emergency commission, if eligible and suitable in all respects, may be considered, at the appropriate time, for permanent/regular commission in the Army Medical Co. ps. In para 20, under the heading 'Pensionary Terms and Terminal Gratuity', it was provided that those terms were under consideration and orders would be issued separately. It is agreed to by the counsel appearing for the parties that no such order regarding pensionary terms and terminal gratuity has so far been issued by the respondent.

7. It was sought to be submitted by the counsel appearing for the petitioner that since the petitioner was given short service regular commission, therefore, it should be deemed to be an appointment as a permanent regular commissioned officer and, therefo, the petitioner is entitled to get pension under the pension regulations. The said contention, however, is found to be fallacious as at every stage and under every army instruction, a distinction has always drawn between a short service regular commissioned officer and a permanent regular commissioned officer. This is apparent when para 19 of Circular No.15/5 dated 15.12.1962 is read. The said para draws a distinction between emergency commission and permanent regular commission. If the petitioner was appointed as a permanent regular commissioned officer, then only the provisions of the Pension Regulation would have been applicable. Because she was appointed as emergency commissioned officer, therefore, the provisions of Pension Regulation are not applicable to her. This finds support from circular No. 15/5 dated 15th December 1962 wherein it was specifically mentioned that pensionary terms and terminal gratuity were under consideration. The subsequent circular of 1965 did not provide for bene it of payment of any pension to emergency commissioned officer but provided for payment of only gratuity. The petitioner could not be continued in service beyond ten years as short service commissioned officer and accordingly she was given an option to join emergency commission, which option she had expressed in favor of joining the said commission and accordingly was given the said emergency commission wherein she also worked. The said service also did not carry with it benefit of pension as no such benefit is envisaged under any of the army instructions or pension regulations. Therefore, the petitioner cannot claim as if she is entitled to receive pension under the provisions of the pension regulations.

8. Counsel appearing for the petitioner placed strong reliance on Pension Regulations for the Army, 1961, in support of his contention that provisions of Pension Regulation are applicable to the petitioner. Reference was made to paragraph 26 thereof which provides for and lays down the period of service which qualify for pension. It was submitted that pension is payable to an officer irrespective of the type of commission and, therefore, and officer, whether on emergency commission or short service commission, would be entitled to get pension on retirement from service. In order to appreciate the said contention, the relevant portion of the said para is quoted:-

''26. The following periods of service qualify for pension:-

(a) Commissioned service. - Service as a permanent regular commissioned officer and, if it is preceded without a break, service of the following categories jointly or severally subject to the refund in the prescribed manner to Government of the gratuity, if any, other than war gratuity, received in respect of such service:-

(i)Service as commissioned officer in the Army, Indian Navy and Air Force, irrespective of the type of commission;

(ii)Embodied or called out commissioned service as an officer of the late Indian Territorial Force or the late Auxiliary Force (India) or of the Territorial Army;

xx xx xx ''

9. A bare reading of the aforesaid provision would clearly establish that the submission as aforesaid is fallacious and without any substance. This provision has been incorporated to give the benefit of service rendered prior to regular commission for the purposes of evaluating the qualifying period for pension. The provision is applicable to an officer who has rendered service as a permanent regular commissioned officer. It merely provides that if an officer has rendered service as a permanent regular commissioned officer, which is preceded by earlier service on short service commission or any other commission, then such prior service rendered by him would be counted and qualify for pension. The said provision, however, is not applicable when the service rendered by an officer is only on short service commission/emergency service commission and not at all on permanent regular commission.

10. The petitioner also cannot derive any advantage from the use of the expression ''Short Service Regular Commission'' in the Notification dated 6th October, 1965. It is the admitted case before us that the petitioner was not eligible for regular commission and rendered only tenure appointments on short commission. The use of the expression ''regular'' here is to describe the ''short service'' and cannot be equated to ''Regular Commission'' in the Armed Forced Medical Corps.

11. Since it is held that the petitioner is not entitled to get pension under the pension regulations, in terms of her claim, it is not necessary for us to discuss as to whether the petitioner is entitled to get weightage and claim for pension for 33 years of service by giving the benefit of weightage as claimed by her.

12. In terms of the aforesaid discussions and the conclusions arrived at by us, we find no merit in this petition and the petition is dismissed.