[Cites 5, Cited by 0]
Kerala High Court
Union Of India vs Ex Nk Thomas Varughese on 27 March, 2026
Author: N.Nagaresh
Bench: N.Nagaresh
1
W.P.(C). No. 3530/2026
2026:KER:28319
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 27TH DAY OF MARCH 2026 / 6TH CHAITHRA, 1948
WP(C) NO. 3530 OF 2026
PETITIONERS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE,
SOUTH BLOCK NEW DELHI, PIN - 110 011.
2 THE CHIEF OF ARMY STAFF,
INTEGRATED HEAD QUARTERS (ARMY) SOUTH BLOCK, NEW DELHI,
PIN - 110 011.
3 OFFICER IN CHARGE, OIC DSC RECORDS MIL ROAD,
BURNACHERRY P.O., KANNUR, PIN - 670 013.
4 OFFICER IN CHARGE, PCDA (P), DRAUPADI GARH ALLAHABAD,
UP, PIN - 211 014.
BY ADV SMT.M.SHAJNA, CGC
RESPONDENTS:
EX NK THOMAS VARUGHESE, AGED 63 YEARS,
S/O LATE KG THOMAS, KOLINCHICKAL HOUSE, PERINGANAD P.O.,
ADOOR, PATHANAMTHITTA DISTRICT, KERALA, PIN - 681 551.
BY ADVS.
SRI.T.R.JAGADEESH
SHRI.ADI NARAYANAN
SMT.MANASI JAGADEESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.03.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C). No. 3530/2026
2026:KER:28319
N. NAGARESH & JOHNSON JOHN, JJ.
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W.P.(C) No. 3530 of 2026
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Dated this the 27th day of March, 2026
JUDGMENT
The petitioners have filed the writ petition challenging Ext. P1
order dated 26.09.2022 passed by the Armed Forces Tribunal,
Regional Bench, Kochi, condoning the shortfall of 1 year, 2 months
in completing 15 years of qualifying service for pension in Defence
Security Corps (DSC) by the respondent and consequently making
him eligible for grant of second service pension.
2. It is submitted that the Tribunal has exceeded its
jurisdiction against the policy issued by the Union of India and has
failed to appreciate that Union of India, as per its Policy letter No.
14(02)/2011-D (Pen/Pol) dated 20.06.2017, has in clear and
categorical terms stated that no condonation shall be allowed for
grant of second service pension. The relevant portion of the said
letter dated 20.06.2017 is as follows:
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"3. It is conveyed that the intention behind condonation
of deficiency in service for grant of service pension is
that the individual must not be left high & dry but should
made eligible for at least one service pension. In view of
above, it is clarified that no condonation shall be allowed
for grant of second service pension."
3. It is also submitted that it is an explicit position from the
records that the petitioner is drawing his first service pension and
therefore, in the light of the letter dated 20.06.2017, the
respondent cannot be granted the benefit of condonation of
shortfall for the purpose of second service pension. The letter
dated 20.06.2017 makes it clear that grant of condonation of
deficiency in qualifying service is to be accorded only in deserving
cases to make the individual eligible for at least one service
pension, and that condonation of deficiency in qualifying service
for grant of second service pension in respect of DSC personnel
has no merit. Therefore, in terms of the policy enacted for grant of
pension to ex-servicemen, there was no question of condonation
of deficiency in qualifying service for grant of second service
pension, it is contended.
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4. Central Government Counsel relied on the decision of the
Hon'ble Apex Court in "Union of India v. Air Commodore NK
Sharma [2023 SCC Online SC 1673] and argued that the Tribunal
which is a quasi judicial body is bound to function within the strict
boundaries of the governing legislation and cannot direct
making/altering of a Government policy.
5. We have heard the learned Central Government Counsel
appearing for the petitioners and the learned counsel for the
respondent.
6. The issue involved in this case is whether the shortfall in
the second service rendered by the petitioner in the DSC can be
condoned or not, for the purpose of claiming pension. It is an
admitted position that the very same issue has been decided by
the Hon'ble Apex Court in Union of India & Ors. v. Balakrishnan
Mullikote (Ex Hav 256812 M) [2026 SCC OnLine SC 464], in
which it is held as follows:
"47. This Court is of the view that Union of India through
the Ministry of Defence shall determine the length of
qualifying services in accordance with Paragraphs 9 and 18
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of the Pension Regulations, of 1961 and 2008 respectively,
as well as Note 5 appended to the letter dated 30 th October
1987.
48. If, upon determination of the length of qualifying service,
there remains a shortfall of one year or less, the
Respondents shall be entitled to seek condonation of such
deficiency for the purpose of pension eligibility, in
accordance with Paragraph 125 of the Pension Regulations,
1961 or Paragraph 44 of the Pension Regulations, 2008.
This position has already been affirmed by this Court in
Surender Singh Parmar (supra). The relevant portion of the
said judgment is reproduced hereinbelow:--
"3. The factual matrix of the case is as follows : the
respondent joined the Indian Navy on 12-8-1971 and
after rendering 13 years 10 months and 13 days'
service sought his retirement on compassionate ground
upon which he was released from service on 24-6-
1985. The minimum qualifying period for pensionable
service is 15 years. There is a provision in the Navy
(Pension) Regulations, 1964 for condonation of shortfall
in service, initially it was for six months and
subsequently the condonation was made permissible
for one year. The respondent claimed that he was
entitled to the benefit under the said Regulations and
the Government of India Instructions dated 30-10-1987.
The appellant denied the said benefit to the respondent
vide order dated 14-8-2001.
4. The respondent initially approached the High
Court of Delhi by filing Writ Petition (C) No. 12507 of
2004. It was pointed out before the High Court that the
Division Bench of the Bombay High Court titled
Gurmukh Singh v. Union of India vide judgment dated
22-11-2006 declared the Navy (Pension) Regulation
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82(a) as null and void being ultra vires to Article 14 of
the Constitution of India. Regulation 82(a) provided that
the benefit of condonation of shortfall in pensionable
service shall not be applicable to the case in which a
sailor got the discharge from the service at his own
request. It was also brought to the notice of the High
Court that similar finding was given by the Delhi High
Court in the case of the respondent in Surender Singh
Parmar v. Union of India vide order dated 6-11-2007
and that the appellant Union of India was directed to
consider the case of the respondent for the purpose of
condoning the deficiency in service and pass
appropriate orders within three months.
5. The appellant opposed the said prayer on the
ground that the respondent has not completed the
requisite service of 14 years upon which only one can
get the benefit of condonation of shortfall of service up
to one year. Therefore, according to the appellant, the
respondent was not eligible candidate for condonation
of the shortfall in pensionable service of one year.
Before the High Court the respondent contested the
statement made by the appellant that the respondent
served for 13 years 8 months and 13 days and brought
to the notice of the High Court that actually he served 13
years 10 months and 13 days which was not disputed.
The respondent claimed benefit by rounding off the
period of service in terms of the Government of India
Instructions dated 30-10-1987. The Division Bench of
the Delhi High Court after considering the rival
submissions and taking note of the Instructions dated
30-10-1987 by the order dated 6-11-2007 [WP (C) No.
12507 of 2004, decided on 6-11-2007 (Del)] set aside
the appellant's earlier rejection order dated 14-8-2001
and directed the appellant to reconsider the case of the
respondent.
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xxx xxx xxx
10. The note below Para 5 of the Government of
India, Ministry of Defence Instructions dated 30-10-1987
at Clause 5 provides that in calculating the length of
qualifying service fraction of a year equal to three
months and above but less than six months shall be
treated as a completed one half year for reckoning
qualifying service. The said provision reads as follows:
"5. Qualifying service.--
(a)-(b)***
Notes.--(1) to (4)***
(5) In calculating the length of qualifying service
fraction of a year equal to three months and above but
less than six months shall be treated as a completed
one half year and reckoned as qualifying service."
11. In view of the aforesaid provisions the respondent
is entitled to claim total period of service as 14 years for
the purpose of calculation of pension. By the
Government of India, Ministry of Defence Order dated
14-8-2001 administrative power has been delegated to
the competent authority. Under clause (a)(v) the
competent authority has been empowered to condone
shortfall in qualifying service for grant of pension beyond
six months and up to 12 months. The said provision
reads as follows:
"(a)(v) Condonation of shortfall in qualifying service
for grant of pension in respect of PBOR beyond six
months and up to 12 months."
12. In view of the aforesaid provision, the respondent
is also entitled to claim for condonation of shortfall in
qualifying service for grant of pension beyond six months
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and up to 12 months. If the aforesaid power has not
been exercised by the competent authority in proper
case then it was within the jurisdiction of the High Court
or Tribunal to pass appropriate order directing the
authority to condone the shortfall and to grant pension to
the eligible person, which has been done in the present
case and we find no ground to interfere with the
substantive finding of the Tribunal. However as we find
that the respondent was allowed to retire from service on
24-6-1985 when the Instruction dated 14-8-2001 was not
in existence, we hold that the respondent is entitled for
such benefit from such date on which the said Instruction
came into effect. The Tribunal failed to notice the
aforesaid fact but rightly declared that the respondent's
shortfall in service stands condoned."
7. In view of the judgment of the Hon'ble Apex Court
in Balakrishnan Mullikote (supra), the issue stands covered
in favour of the respondent.
Writ Petition is, hence, dismissed.
sd/-
N. NAGARESH
JUDGE
sd/-
JOHNSON JOHN
JUDGE
Rv
