V.P. Dahiya vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 843 Del

JUDGMENT

Mukundakam Sharma, J.

1.The petitioner has filed the present writ petition with a prayer for issuance of a direction to the respondents to pay higher rate of pension to the petitioner by counting full pre-commissioning service and also adding weightage of 9 years towards qualifying service for pension.

2.In order to appreciate the contentions raised by the parties and to answer the issue that falls for our consideration, a brief sum up of the facts leading to the filing of the present writ petition is set out hereafter.

3.The petitioner was enrolled as combatant Airman in the Indian Air Force on 13.11.1964. In the aforesaid capacity, the petitioner served up to 5.9.1970. Therefore, the petitioner had a total of 5 years 297 days as Airman. The petitioner was granted a Short Service Commission on 5.9.1970 and he worked in that capacity up to 3.10.1980, when he was released from the Army in the rank of Captain. The petitioner thereafter was given pension by the respondents computing his qualifying service for pension as 13 years 348 days in the following manner:

I

Service as Airman with effect from 13.11.1964 to 5.9.1970 (5 years 297 days to 2/3rd)

= 3 years 319 days

II

Service as Short Service Commissioned Officer with effect from 6.9.1970 to 3.10.1980

= 10 years 28 days

Total

= 13 years 348 days

4.On the basis of the aforesaid qualifying service for pension, the petitioner was paid his pension with effect from 4.10.1980 @ Rs.120/- per month for qualifying service of 13 years 348 days. Consequent on recommendations of 5th Central Pay Commission, the existing pension of the petitioner was revised with effect from 1.1.1996 @ Rs.2158/- per month for 13 years 11 months 18 days.

5.Being aggrieved by the aforesaid action of the respondents, the petitioner filed this writ petition claiming the entire service of 5 years 297 days rendered by the petitioner as Airman and also for giving weightage of 9 years for qualifying years for pension in terms of the circular of the respondents. In support of the aforesaid writ petition, counsel for the petitioner relied upon the circular dated 7th June, 1999 issued by the Ministry of defense, Government of India, New Delhi. Relying on the circular dated 30th October, 1987, the counsel for the petitioner referred to the note appearing in para 5 of the aforesaid circular. Para 5 deals with the qualifying service. Note 4 is appended below the said para 5, which provides that full pre-commissioned service rendered under the Central Government whether in a Civil Department, or in the Armed Forces, shall be taken into account for working out the qualifying service for earning pensionary benefits subject to fulfillment of other conditions.

6.Counsel for the respondents, however, refuted the aforesaid submission contending, inter alia, that the petitioner was entitled only for 2/3rd of service rendered as Airman as per AI 6/S/65. A copy of the said circular has also been placed on record. Counsel relied on para 6 particularly of the aforesaid circular in support of his contention that 2/3rd period of petitioner's OR service in Air Force could be counted as qualifying service for pension, which stands already taken into account while notifying the pension benefits to the petitioner. It was also submitted that the petitioner is not entitled to get the weightage of 9 years, which is claimed by the petitioner.

7.We have considered the aforesaid submission as also the various notifications and the records placed before us by the parties. Para 6 of 6/S of 1965 deals with the Retiring Pension of Emergency Commissioned Officers stating that the same shall be regulated in accordance with provisions of the aforesaid instructions. Para 6 reads as below:

"Retiring Pension

6. Serving JCOs and Other Ranks (including corresponding ranks of the Navy and Airforce) granted Emergency Commission will have the option either:-

(a) to accept any pension (including ad hoc increase)/gratuity earned for pre-commissioned service under the rules which would have applied had the officer concerned been discharged on the date immediately prior to that on which he was granted emergency commission, and draw terminal gratuity for EC service;

OR

(b) to forego the terminal gratuity for EC service and count his emergency commissioned service towards service pension / service gratuity in the substantive rank held before grant of emergency commission; in no case, however, will pension be granted at a rate lower than that indicated below:-

xx xx xx

xx xx xx"

8. After serving for 5 years 297 days as Airman in the Indian Air Force, the petitioner was appointed as a Short Service Commissioned Officer. According to the notification A/1/6S/65 only 2/3rd period of pre-commissioned service in Air Force could be granted as qualifying service for pension and, therefore, the respondents duly counted his service as Airman towards qualifying service of pension as 3 years 319 days. They have computed service as Short Service Commissioned Officer for the entire period of 10 years 28 days and, therefore, the petitioner has towards his credit a total of 13 years 348 days as qualifying service for pension. The respondents have explained their calculation of the revised pension in the following manner:

"The calculation of revised pension is as under:

 As per Govt. letter dated 27.5.98
Notional pay of Captain as fixed 
by CDA (o) PUNE                      3,300

                                     -------
                               Total 3,500
                                   --------
 

Qualifying service has been shown in para No.5 above i.e. 13.5 years.
 Pension for 13.5 years                3,500 x 13.5 = 715.90/-
      i.e. appx. Rs.716/- pm
                                             2    33
Consolidated pension under govt. 
letter dated 24.11.97 w.e.f.                  Rs.2185/- p.m. 
1.1.96 is which was notified vide
 PPO No.M/V CPC/657/99

Pension under Govt. letter dated 7.6.99
Minimum of scale of the Capt on 1.1.96          Rs. 9,600/-
     Rank pay                                    Rs. 400/-
                                             -------------
                                         Total Rs.10,000/-
                                            -------------
 

Qualifying service 13.5 years and weightage Nil. (being an ECO who retired before 1.1.96 are not entitled for any rank weightage as per extant orders.)

Pension for 13.5 years 10,000x13.5 = 2,045.45/- i.e. appx. Rs. 2,046/-

2 33 which has been notified vide PPO No.M/MODP/MNL/93/99. The PDA has been instructed to pay the pecuniary benefits, which are more favorable."

9. Having perused the aforesaid calculations as pointed out by the respondents in their counter affidavit and after hearing the counsel for the parties, it is clear to us that the petitioner is claiming the benefit of rank weightage as also counting his pre-commissioned service in full according to the letter dated 31.10.1987. However, ex facie and on the bare perusal of the said notification, it is crystal clear that the said circular is not applicable to Emergency Commissioned Officers and Short Service Commissioned Officers as that is applicable only to Permanent Regular Commissioned Officers. According to the circular issued by the Government of India, Ministry of defense dated 9.1.1990, a copy of which is placed on record, it is disclosed that the pre-commissioned service would be counted in full in respect of Emergency Commissioned Officers and Short Service Commissioned Officers, who retire on or after 1.1.1986. As the petitioner retired from service with effect from 3.10.1980, therefore, the provisions of the said circular and the benefits given there under would not be applicable to the petitioner.

10. Counsel for the petitioner sought to rely upon the decision of this Court in Writ Petition (C) No.1990/2003 titled Ex. Sub. Shamsher Singh v. Union of India and ors. decided on July 20, 2004. The ratio of the said decision is not applicable to the facts of the present case as the said case was rendered altogether in a different context. The petitioner in the said case was also not a Short Service Commissioned Officer as that of the petitioner herein and, therefore, ratio of the said decision cannot be made applicable to the facts of the present case.

11. In view of the aforesaid position, we are of the considered opinion that the respondents were justified in holding that the qualifying service of the petitioner works out only to 13.5 years. Consequently the pensionary benefits which are also being paid to the petitioner appear to us to be just, legal and valid. Therefore, we find no merit in this petition and the petition is dismissed.