Delhi High Court
Rajeev Nambiar And Ors vs Union Of India And Ors on 30 October, 2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 22nd August, 2023
Judgment delivered on: 30th October, 2023
+ W.P.(C) 6573/2022 & CM APPL. 19992/2022
RAJEEV NAMBIAR AND ORS ..... Petitioners
versus
UNION OF INDIA AND ORS ..... Respondents
Advocates who appeared in this case:
For the petitioners: Mr. Himanshu Upadhyay, Advocate (Through VC)
For the Respondent: Mr. Sanjeev Uniyal, Sr. Panel Counsel with
Mr. Dhawal Uniyal, Advocate (Through VC)
Sgt. A. Prasad, DAV (Air Force)
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
MANOJ JAIN, J
1. It needs to be assessed whether the petitioners herein are
entitled to "pro rata pension" from the date(s) of their respective
discharge or not.
2. Petitioners were enrolled in Indian Air Force and held various
ranks in the category of PBOR (Personnel Below Officer Rank) and
NCO (Non-Commissioned Officer). After serving Indian Air Force
between 10 to 15 years, they were discharged under Rule 15 (2)(g)(ii)
of Indian Air Force Rules, 1969, being found „unsuitable for retention
in the Air Force'.
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By:SONIA THAPLIYAL
Signing Date:30.10.2023
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3. Petitioners contend that they are entitled to receive „pro rata
pension‟ on completion of 10 years of service. They rely on the
judgments in Govind Kumar Srivastava Vs. Union of India & Ors.:
2019 SCC OnLine Delhi 6425 and Brij Lal Kumar Vs. Union of India
& Ors.: 2020 SCC OnLine Delhi 1477.
4. According to the Petitioners, they had, themselves, never
sought discharge from the Indian Air Force and despite spending their
prime in the Indian Air Force in most adverse conditions, their
services were abruptly terminated on the ground of unsuitability and
such action of the Indian Air Force cannot deny them their right to get
pension. They also pray that the pre-conditions as laid down in letter
no. 8 (3)/86/A/D (Pension/Services) of Ministry of Defence dated 19 th
February, 1987 for grant of „pro rata pension‟ only in case of joining
Central Public Enterprises (CPE) be struck down as discriminatory
and violative.
5. Petitioners contend that there cannot be any arbitrary distinction
between the officers who are able to secure a job in any other
governmental organization and those who are not able to secure any
such job and, therefore, they should also be treated at par.
6. Respondents have, on the other hand, submitted that the
petitioners are governed by "Pension Regulations for the Air Force
1961" and as per Regulation 121, the minimum qualifying service for
earning „regular pension‟ is 15 years. Since the petitioners have put in
service of less than 15 years, they are not eligible to seek any pension
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By:SONIA THAPLIYAL
Signing Date:30.10.2023
17:38:13
as per the aforesaid statutory provision. It is also claimed that, even
otherwise, petitioners‟ contention for grant of „pro rata pension‟ is
bereft of any substance as they were discharged, being unsuitable for
retention in Air Force, and not because they were absorbed or to be
absorbed by any Central Public Enterprise or Public Sector
Undertaking.
7. Respondents contend that the reliance by the Petitioners on said
precedents is misplaced as principle of „pro rata pension‟ stands
attracted when any such official gets absorbed or employed in any
other government organization, through proper channel, and under
those circumstances only, the qualifying service is taken as 10 years
for grant of „pro rata pension‟.
8. There is no denying the fact that petitioners herein were
discharged under Rule 15 (2)(g)(ii) of Indian Air Force Rules, 1969.
Relevant details of their posting and discharge are as under:-
S. Name of Petitioner Date of Date of Reason of Tenure
Enrollment Discharge Discharge of
No.
Service
in IAF
1 Mr. Rajeev Nambiar 10.03.1986 02.02.1998 His service 11 yrs.
no longer 134
required - days
unsuitable
for retention
in IAF
2 Mr. Bino Agustine 30.06.1992 22.08.2005 His service 13 yrs.
no longer 22 days
required -
unsuitable
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By:SONIA THAPLIYAL
Signing Date:30.10.2023
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for retention
in IAF
3 Mr. Rajesh 03.08.1993 11.12.2005 His service 12 yrs.
Edathiparambil no longer 125
Vasudevan required - days
unsuitable
for retention
in IAF
4 Mr. Saji Simon 30.06.1992 22.06.2005 His service 12 yrs.
no longer 353
required - days
unsuitable
for retention
in IAF
5 Mr. Jayachandran 15.05.1976 20.08.1986 His service 10 yrs.
Devendren no longer 98 days
required -
unsuitable
for retention
in IAF
6 Mr. Krishna Kumar 21.08.1985 28.04.1997 His service 11 yrs.
Govindan no longer 182
required - days
unsuitable
for retention
in IAF
7 Mr. Ramavarma 19.02.1977 12.11.1989 His service 12 yrs.
Ram Kumar no longer 213
required - days
unsuitable
for retention
in IAF
8 Mr. Kasturi Ravi 15.04.1981 03.05.1993 His service 11 yrs.
no longer 296
required - days
unsuitable
for retention
in IAF
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:30.10.2023
17:38:13
9 Mr. Kola 26.08.1977 14.11.1987 His service 10 yrs.
Gopalakrishnaiah no longer 77 days
required -
unsuitable
for retention
in IAF
10 Mr. Harjinder Singh 06.09.1974 06.05.1986 His service 11 yrs.
Brar no longer 188
required days
11 Mr. Desai 22.03.1980 03.09.1990 His service 10 yrs.
Vijaykumar no longer 114
Dahyabhai required - days
unsuitable
for retention
in IAF
12 Mr. Ravi Ramesh 11.06.1986 07.12.1997 His service 11 yrs.
Kumar no longer 169
required days
9. Petitioners seem to have mixed up two different concepts i.e.
grant of „regular pension‟ on completion of minimum qualifying
service and grant of „pro rata pension‟ on satisfaction of certain pre-
conditions.
10. As per Regulation 121 of Pension Regulations 1961, petitioners
need to have minimum qualifying service of 15 years for earning
„regular pension‟.
11. Since none of the Petitioners have completed 15 years of
service, they are not entitled to any regular service pension.
12. Petitioners, however, contend that they are entitled to pro rata
pension as they have completed 10 years of service. According to the
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By:SONIA THAPLIYAL
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Petitioners, there cannot be any discrimination between an official
who is discharged after 10 years and the one absorbed in any other
Central Government service after 10 years of service.
13. Fact, however, remains that the concept of „pro rata pension‟ is
altogether different one and cannot be treated at par with „regular
pension‟.
14. Pro rata pension is given to those officers/officials of the Indian
Air Force who are either permanently absorbed in any other Central
Government Enterprises/Public Sector Undertaking or appointed in
such Central Government Enterprises/PSU when they apply through
proper channel and obtain requisite No Objection Certificate (NOC)
from the Indian Air Force. This is, however, subject to the stipulation
that the concerned officer/official should have completed 10 years of
service.
15. Undoubtedly, earlier there was some disparity regarding grant
of „pro rata pension‟ as such benefit was given to commissioned
officers only and it was in that context that the Co-ordinate Bench of
this Court in Govind Kumar Srivastava (supra) held that the denial of
similar kind of benefit of „pro rata pension‟ to PBOR/NCO was
violative of Article 14 of the Constitution and accordingly respondent
was directed to grant „pro rata pension‟ to said petitioner who had also
rendered 10 years of service.
16. In Govind Kumar Srivastava (supra), petitioner was enrolled in
IAF as Airman on 19.06.1998. Pursuant to an advertisement issued
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By:SONIA THAPLIYAL
Signing Date:30.10.2023
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by Air India, said petitioner applied for the post of Technical Officer.
„No Objection Certificate‟ was also issued by the Indian Air Force
permitting him to take up employment with Air India which at the
relevant time was a public sector enterprise. Said Petitioner got
selected in Air India and was discharged from Indian Air Force on
21.07.2008 i.e. after serving Indian Air Force for 10 years and one
month.
17. When Govind Kumar Srivastava sought „pro rata pension‟, it
was declined and it was in the aforesaid backdrop that he had raised
the question of discrimination meted out to PBOR/NCO in the matter
of grant of „pro rata pension‟ claiming that it was not based on any
rational criteria or principle. It was contended that only commissioned
officers of Defence Services were eligible for grant of pro rata
pension on their absorption/joining any such Central Government
Enterprises/PSU and no similar benefit was available to them.
18. It was in the aforesaid circumstance that in Govind Kumar
Srivastava (supra), it was held that there was no justification for
denial of „pro rata pension‟ to PBOR/NCO and, therefore, direction
was issued to the respondents to grant „pro rata pension‟ to said
petitioner. Union of India filed a Special Leave Petition being S.L.P.
(Civil) No. 8813/2019 against the aforesaid order but the same was
rejected by Supreme Court on 26.04.2019, leaving the question of law
open.
19. The aforesaid legal position has been reiterated by another Co-
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By:SONIA THAPLIYAL
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ordinate Bench of this Court in Brij Lal Kumar (supra).
20. Clearly, in the present fact-situation, said precedents are not
applicable at all.
21. The principle of „pro rata pension‟ works in a different domain
altogether as the concerned official continues to be in service albeit in
a different central government organization. Any such official would
be entitled to receive pro rata pension (i) if he has already completed
10 years of service and (ii) is permanently absorbed or appointed in
any Central Public Enterprise through proper channel.
22. This special provision has been made for them so that on such
absorption/appointment in another central government organization,
they are not put to any loss. Pro-rata pension is thus premised on the
fact that though the officer in question may not have completed the
full period of qualifying service for being eligible to receive regular
pension, he gets pro rata pension, on existence of certain pre-
conditions.
23. Letter dated 19.02.1987 which deals with the subject of grant of
pro rata pensionary benefit to the commissioned officers of Defence
Services on their permanent absorption in Central Public Enterprises
in our view is not suggestive of any discrimination.
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:30.10.2023
17:38:13
24. Pre-conditions mentioned in Paragraph-2 of said letter read as
under:-
"The provisions of this letter will apply to those who:
(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 Enterprises.
25. As noted hereinabove, the principle of „pro rata pension‟ does
not stand attracted herein as petitioners were neither absorbed nor
appointed in any other Central Public Enterprises. They all have been
discharged as they were found "unsuitable for retention in Air
Force".
26. Since the objective behind grant of „pro rata pension‟ is totally
different, petitioners cannot draw any parallel. Moreover, there is
nothing discriminatory or violative in such policy either. It caters to
those officials who get absorbed in other central government
organization through proper channel. Since they continue to serve
central government organization, principle of pro rata pension has
been introduced so that they are not, eventually, put to any
disadvantageous position and are not denied pensionary benefits for
not completing minimum qualifying service, particularly when they
continue to serve one or the other Government Department. This
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:30.10.2023
17:38:13
policy of pro rata pension universally applies to all such officials who
choose to continue to serve another central government organization.
This policy is, thus, neither meant nor applicable to those who are
discharged on the ground of unsuitability or leave Indian Air Force to
take up any private assignment/job.
27. The doctrine of equality, enshrined in Articles 14 and 16 of the
Constitution of India, is intended to advance justice by avoiding
discrimination. It stands attracted when equals are treated as unequals
or where unequals are treated as equals. The guarantee of equality
does not imply that the same rules should be made applicable in spite
of differences in their circumstances and conditions. Although
Articles 14 and 16 of the Constitution forbid hostile discrimination,
they do not prohibit reasonable classification. Thus, equality means
equality as between members of the same class of employees and not
equality between members of separate independent classes. A person
who is discharged on the ground of unsuitability cannot seek any
parity with a person who continues to serve government, albeit, in a
different organization.
28. As the very word suggests, the concept of pro rata denotes
„proportionality‟ and as noted already, it is meant for those who
continue to serve governmental organization. The letter in question is
modelled on Rule 37 of Central Civil Services (Pension) Rules, 1972
which also provides that a Government servant who has been
permitted to be absorbed in a service or post in or under a corporation
or company wholly or substantially owned or controlled by the
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By:SONIA THAPLIYAL
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Government or in or under a body controlled or financed by the
Government shall, if such absorption is declared by the Government
to be in the public interest, be deemed to have retired from service
from the date of such absorption and shall be eligible to receive
retirement benefits which he may have elected or deemed to have
elected, and from such date as may be determined, in accordance with
the orders of the Government applicable to him.
29. In T.S. Thiruvengadam v. Secy. to Govt. of India, (1993) 2 SCC
174, the Supreme Court, though in a different context, noted that said
Rule 37 provides that a Government servant who has been permitted
to be absorbed in service in a Central Government public undertaking
in public interest, be deemed to have retired from service from the
date of such absorption and shall be eligible to receive retirement
benefits in accordance with the orders of the Government applicable
to him and went on to hold that the plain language of the rule did not
permit any classification while granting the retirement benefits. It
also, in no uncertain words, held that all those persons who fulfil the
conditions under Rule 37 were a class by themselves and no
discrimination can be permitted within the said class. Thus, the
impugned letter cannot be said to be discriminatory as there is no
unequal treatment amongst the equals.
30. As an upshot of our forging discussion, petitioners are not
entitled to any „pro rata pension‟.
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:30.10.2023
17:38:13
31. Since there is nothing suggesting any kind of discrimination or
unequal treatment either, the petition stands dismissed.
32. No order as to costs.
MANOJ JAIN, J
SANJEEV SACHDEVA, J
October 30, 2023/dr
Digitally Signed
By:SONIA THAPLIYAL
Signing Date:30.10.2023
17:38:13
