Delhi High Court
Narvir Singh vs Union Of India & Others on 25 February, 2013
Author: Gita Mittal
$-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.3439/2010
% Date of decision : 25th February, 2013
NARVIR SINGH ..... PETITIONER
Through : Col.(Retd.) S.R. Kalkal,
Adv.
versus
UNION OF INDIA & OTHERS ..... Respondents
Through : Ms. Barkha Babbar, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
GITA MITTAL, J. (Oral)
CM No.18869/2012
By way of this application, the legal representatives of Cdr.
Narvir Singh (Retd.) seek to be impleaded as petitioners as he has
unfortunately expired on 16th September, 2012.
For the reasons stated in the application, the application is
allowed.
WP(C) No.3439/2010
1. By way of this writ petition, the petitioner assails the order
dated 22nd March, 2010 passed by the Armed Forces Tribunal in
O.A. no.211/2009 rejecting the prayer of the petitioner for grant of
pro-rata pension to him from the date of his discharge from the
Indian Army and a direction to the respondents to release service
pension under Regulation 23 of the Pension Regulations for the
Navy.
2. The case of the petitioner is that on 26th December, 1966 he
was granted regular commission in the Indian Navy and he sought
voluntary retirement as he claimed that he had been wrongly
superseded for the next higher rank of Commander in the Navy.
He was permitted to so retire on 31st March, 1983. The petitioner
claims that he was permanently absorbed in the Shipping
Corporation of India Ltd. on 30th November, 1982, when he had
served for 16 years, 65 days in the Indian Navy. The respondents
contend that the petitioner had not joined the Shipping Corporation
of India, the public sector undertaking, on deputation or otherwise
with the consent of Naval authorities.
3. We find that this position was not disputed before the Armed
Forces Tribunal. The petitioner does not challenge this position
even in the writ petition or in the rejoinder which has been filed.
4. We may note that these communications and circulars were
never placed before the Armed Forces Tribunal. Learned counsel
for the petitioner also places reliance on a circular dated 20 th
January, 1979. Perusal of this document shows that this circular
only provided criteria for pre-mature retirement/resignation of
Defence Services Officers and does not contain the mention of
grant of pro-rata pension. We may also note that the letter dated
20th January, 1979 or the policy letter dated 12th July, 1982 were
not placed before the Armed Forces Tribunal by the petitioner.
5. So far as claim of the petitioner is concerned, Col. S.R.
Kalkal, learned counsel for the petitioner has drawn our attention to
the policy letter dated 12th July, 1982 which refers to orders issued
by the Ministry of Finance read with memos of the Ministry of
Defence to the effect that:
"Officers who have been permitted to be absorbed in the
Public Sector Undertakings on or after 8th November,
1968, are deemed to have retired from service from the
date of such absorption and are eligible to draw the pay
of the post in the Public Sector Enterprise in addition to
pro-rata pension from the date of absorption, subject to
fulfillment of the eligibility conditions for this purpose
laid down in the orders issued by the BPE regarding the
period of option etc. They are required under the
relevant orders applicable to them to exercise option
within 6 months of their absorption for either of the
alternatives indicated below:-
(a) Receiving the monthly pension and death-cum
retirement gratuity under the usual Government
arrangement, or
(b) Receiving the DCR Gratuity and a lump-sum
amount in lieu of pension worked out with reference to
the commutation tables obtaining on the date from which
the commuted value becomes payable.
Where no option is exercised within the prescribed
period the officer is automatically governed by
alternative (b) above. A person opting for alternative (a)
is entitled to commutation of a portion of pension as
admissible in accordance with the existing orders."
(Emphasis supplied)
6. As noticed above, the instant case does not relate to an
officer who has been permitted by the respondents to be absorbed
in the public sector undertaking.
7. The respondents have placed reliance on a circular of the
Government of India dated 19th February, 1987 which clarified the
above noticed position in the following terms:
"(i) while on deputation to Central Public Enterprises
exercise an option for permanent absorption and are
discharged/permitted to retire prematurely from Defence
Services for this purpose.
(ii) are appointed in Central Public Enterprises on the
basis of their own applications sent through proper
channel in response to advertisements and are permitted
to retire prematurely from service in the Defence
Services for the purpose of taking up the appointment in
the Enterprise."
8. We find that the Armed Forces Tribunal has found that the
applicant was not entitled to pro-rata pension for the simple reason
that the conditions mentioned in the circular dated 19 th February,
1987 are not satisfied. Learned counsel for the petitioner has
challenged the applicability of the letter dated 19 th February, 1987
for the reason that the petitioner had voluntary retired on 31 st
March, 1983. We find that given the clear policy enunciation in
the prior policy letter dated 12th July, 1982 noticed hereto before,
which is relied upon by the petitioner, the position does not change
whether reference is made to policy letter dated 12th July, 1982.
We find that the subsisting position has only been clarified by the
letter dated 19th February, 1987.
9. We may note that petitioner has expired during the pendency
of the writ petition on 16th September, 2012 and the present
petition is being pursued by his legal heirs.
10. In this background, we find no fault in the order passed by
the Armed Forces Tribunal. The present writ petition has no merit
and is dismissed.
GITA MITTAL, J
J.R. MIDHA, J
FEBRUARY 25, 2013/dk
