Punjab-Haryana High Court

Union Of India Through Secretary To ... vs Ex Nk Vijay Kumar on 13 January, 2025

Bench: Sureshwar Thakur, Sudeepti Sharma

                              Neutral Citation No:=2025:PHHC:002968-DB




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        IN THE HIGH COURT OF PUNJAB & HARYANA
                    AT CHANDIGARH

                                          CWP-21976-2024
                                          Reserved on: 25.11.2024
                                          Pronounced on: 13.01.2025

UNION OF INDIA THROUGH SECRETARY TO GOVT.
OF INDIA, MINISTRY OF DEFENCE, SOUTH BLOCK
NEW DELHI                              .....PETITIONER
                        VERSUS

NO. 19086249K EX NK VIJAY KUMAR AND ANOTHER
                                     .....RESPONDENTS

CORAM:      HON'BLE MR. JUSTICE SURESHWAR THAKUR
            HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Argued by: Mr. Charanjit Singh Bakhshi, Advocate
           for the petitioner/UOI.
                               ****
SURESHWAR THAKUR, J.

1. Through the instant writ petition, the petitioners herein-

Union of India, prays for the setting aside of the order dated 05.04.2023

(Annexure P-1), as passed by the learned Armed Forces Tribunal

concerned, wherebys the claim of respondent No.1 for the grant of

service element of the disability pension for the service rendered by

him in Defence Security Corps (DSC) has been allowed, by condoning

the shortfall of 10 months and 18 days from the requisite 15 years of

qualifying service for earning service pension in the DSC.

Factual Background

2. Respondent No.1 was enrolled in the Indian Army on

24.12.1984 and was discharged therefrom on 31.12.2006. Respondent

No.1 was granted retiring pension, as admissible to him as per the

Pension Regulations. Thereafter, respondent No.1 was re-enrolled into

Defence Security Corps (DSC service) on 20.12.2007. According to the

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prevalent policy, upon attaining the age of superannuation, respondent

No.1 was discharged from service in the DSC on 31.01.2022 after

rendering a service of 14 years, 01 month and 12 days, which was short

by 10 months and 18 days, so as to make the soldier enabled to

complete the qualifying term of 15 years, for the purpose of grant of

service pension, thus for the second service rendered by him in the

DSC.

3. Respondent No.1 was denied service pension by the

competent authority for his not completing the requisite qualifying

period for earning service pension in the DSC.

4. Feeling aggrieved, respondent No.1 filed O.A., before the

learned Armed Forces Tribunal concerned, wherebys he cast a

challenge to the afore said rejection order. The said O.A., became

allowed vide order dated 05.04.2023. The operative part of the said

order is extracted hereinafter:-

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

"We accept this application and direct the Union of India to decide the case of the applicant in light of the above judgment within a period of three months from today, failing which the applicant shall be entitled to interest @8% per annum......"

5. Feeling aggrieved from the aforesaid order as passed upon

the O.A. (supra), by the learned Armed Forces Tribunal concerned, the

petitioner-Union of India has filed thereagainst the instant writ petition

before this Court.

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Submissions of the learned counsel for the petitioners.

6. The learned counsel for the petitioners submits, that the

learned Tribunal has failed to consider that in terms of Regulation

No.125 of the Pension Regulations for the Army, 1961 and Regulation

No.44 of the Pension Regulations for the Army, 2008, thus only the

Competent Authority was empowered to condone the deficiency in the

rendition of qualifying service, thus by the soldier for his becoming

entitled to seek the endowment of pension to him. The said Regulations

are extracted hereinafter.

(PENSION REGULATIONS FOR ARMY, 1961)

125. Except in the case of

(a) an individual who is discharged at his own request, or

(b) an individual who is eligible for special pension or gratuity under Regulation 164, or

(c) an individual who is invalided with less than 15 years service, deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority upto six months in each case."

(PENSION REGULATIONS FOR ARMY, 2008)

44. The deficiency in service for eligibility to pension/gratuity may be condoned upto 12 months in each case by competent authority except in the case of :-

(i) an individual who is discharged at his own request ;

(ii) an individual who is invalided with less than 15 years of service.

(iii) who is eligible for special pension or gratuity under these Regulations."

7. Moreover, the Ministry of Defence vide Policy letter No.14

(02)/2011/D/(Pen/Pol) dated 20.06.2017, inserted clause (iv) in the

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Regulation No. 44 of the Pension Regulation for the Army, 2008. The

relevant part whereof, is extracted hereinafter.

(iv) an individual who is eligible for 2nd service pension

for the service rendered by individual in respect of DSC"

8. A perusal of the afore amendment would make it clear that

relief qua condonation of deficiency in rendition of the apposite

qualifying service, is to be accorded on merit, so as to ensure that an

army personnel is eligible for at least one service pension. Therefore,

the condonation of deficiency in service would not be allowed for

grant of second service pension.

9. The learned counsel for the petitioners further submits, that

the judgment of the learned Armed Forces Tribunal, Principal Bench,

New Delhi, rendered in case titled as Smt. Shama Kaur Vs. Union of

India and Others was not correct rather was contrary to law and facts,

therefore, no reliance ought to have been placed on the said judgment.

The relevant paragraphs, as occur in the verdict (supra) are extracted

hereinafter.

2. The final questions to be answered by the Full Bench on the reference, as framed in this matter on 24.04.2018, are enumerated as under:

(a) Whether there should be condonation of deficiency of service for grant of second pension of DSC service as like Regular Army personnel in terms of GoI, MoD letter dated 14.08.2001 and Para 44 of Army Pension Regulations or be dealt in terms of GoI MoD letter dated 20.06.2017?

b) Should the application for condonation of deficiency of service ought to be made by the official during his lifetime, if not, within how much time it should be made?

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c) Can such an application be filed by the widow of the employee, if so, within how much time it must be done?

d) Does the judgement of Bhani Devi Vs, UOI and others- O.A No. 60 of 2013 dated 07.11.2013 decided by AFT lay down the correct legal proposition of law?

e) Can the AFT interfere with policies issued by GoI (MoD) of individual services?

xxxx xxxx

48. Although in our detailed discussion referred to hereinabove on the background of the matter, the merits of the issue and the consideration of the points of reference to this Larger Bench, we can now, for convenience sake, sum up with the following conclusions:

(i) In reference to Question No. (a), the issue of condonation of shortfall upto one year (twelve months) in qualifying service for grant of pension to members of the Defence Security Corps who have 14 years or more service stands fully settled as per law declared by Constitutional Courts and interpretation rendered by this Tribunal, amongst others in Chattar Pal by the Hon'ble Supreme Court wherein the Respondents themselves have accepted the applicability of condonation upto one year for personnel of Defence Security Corps, by the Hon'ble High Courts of Delhi and Punjab & Haryana in Madan Singh and Mani Ram respectively and also by this tribunal in Bhani Devi and Mohanan.T (supra). The general applicability of condonation of shortfall upto one year by judicial intervention has also been settled by the Hon‟ble Supreme Court in Surender Singh Parmar's (supra). Therefore, condonation of shortfall in qualifying service upto 'one year' for grant of pension shall also be available to the personnel of the Defence Security Corps (DSC).

(ii) Clubbing point of reference (b) and (c), it is held that widows of defence personnel have the right to approach this Tribunal to claim pension or family pension in consequence to the claim of pension qua deceased employees which falls within the definition of "service matter" under the Act and this right is provided by Section

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2(2) of the Armed Forces Tribunal Act, 2007. Though there is no applicability of limitation in continuing wrongs and recurring causes of action, the arrears of pension, in the specific cases of condonation of shortfall, would however have to be restricted from 14.08.2001 as already directed in Paragraph 12 of Surender Singh Parmar( supra) which is binding on us. Further, the claims of dual family pension (in addition to the first family pension) would have to be restricted from 24.09.2012, as already provided by Ministry of Defence letter dated 17.01.2013 (supra).

(iii) In reference to Point (d), it is held that the law being fully settled, including by Constitutional Courts, there is no scope or occasion to doubt the correctness of the earlier decision of this Tribunal in Bhani Devi's case. It thus lays down the correct legal proposition of law. (iv) Question No. (e) stands answered in Para 47 herein above.

Inferences of this Court.

10. Since the expostulations made in paragraph No. 12 of the

judgment rendered by the Hon'ble Apex Court in case titled as Union of

India and Another Vs. Surender Singh Parmar, reported in (2015) 3

Supreme Court Cases 404, paragraph whereof becomes extracted

hereinafter, overcomes the disabling effects, if any, of supra exception

No.(iv), as became inserted vide policy/letter dated 20.06.2017, thus,

intended to work as an obstacle rather against the soldier claiming relief

of condonation in the requisite shortfall of service.

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 and upto 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

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the Tribunal. However as we find that the respondent was allowed to retire from service on 24th June, 1985 when the instruction dated 14th August, 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.

11. Therefore, the judicial verdict (supra), does render negated

the supra argument raised by the counsel for the petitioners, that the

empowerment to condone the requisite shortfall, becomes solitarily

vested in the Competent Authority, especially when the hereinabove

underlined paragraphs, as occur in the verdict made in Surender Singh

Parmar's case, alluded to in the verdict made in Shama Kaur's case, do

invest jurisdiction in the Writ Court, to through judicial intervention,

thus make the espoused condonation.

12. Consequently, the cumulative effect of the authoritative

judicial pronouncement as carried in the above extracted paragraph,

made in Surender Singh Parmar's case (supra), thus completely

countervails both the supra arguments raised before this Court, by the