Army Pension Regulations | Can't Deny Condonation Of Short-Fall In Pensionable Service Of A Voluntarily Discharged Serviceman U/R 125(a): Orissa HC

A Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held,

"...Regulation 125(a) of the Pension Regulations for the Army cannot be relied upon by the Opposite Parties to decline to consider the case of the Petitioner for condonation of the short fall in the pensionable service up to six months."

Factual Background:

The Petitioner was enrolled in the Army (Corps of EME) as an Apprentice on 30th March, 1973 and transferred as a combatant to the Bench service with effect from 14th March, 1975. The Petitioner was discharged from service at his own request on 'extreme compassionate grounds' with effect from 18th December, 1987.

He made a representation on 8th July, 2009 to the Office of the EME Records, Secunderabad praying that the approximately two years during which he served as Apprentice had not been taken into account for calculating the eligible period for pension and that it should be so counted and he should be granted pension.

But his representation was denied on the ground that he was enrolled on 30 Mar 1973 and discharged on 18 Dec 1987 at his own request on extreme compassionate grounds after rendering 14 years 08 months and 18 days service including two years apprentice service whereas 15 years qualifying service was a mandatory requirement to earn service pension vide Para 132 of Pension Regulations for the Army 1961. They pointed out that condonation of deficiency in service is not applicable in case of voluntarily discharged persons as per provisions given at Para 125 of Pension Regulations for the Army, 1961.

Aggrieved by such response, he made two more representations but which were not answered. Subsequently, he filed an Original Application before Armed Forces Tribunal (AFT), Kolkata. AFT found that there was a short fall of 3 months and 12 days. In view of Regulation 125, since he had been discharged on his own request, it held that the shortfall could not be condoned. Therefore, he filed this writ petition.

Court's Observations:

After hearing counsel for the parties, the Court relied upon the judgment in Union of India v. Surender Singh Parmar, wherein the Supreme Court accepted the judgment of Bombay High Court in Gurmukh Singh v. Union of India (decision dated 22nd November, 2006 in W.P. OAC No.430 of 2005) striking down Regulation 82(a) of the Navy Pension Regulations, which provided that the benefit of condonation of short fall in pensionable service shall not be applicable in case the person is discharged from service at his own request.

The Court observed, since Regulation 125(a) of the Pension Regulations for the Army is identically worded as Regulation 82(a) of the Pension Regulations for the Navy, the ratio of the decision of the Bombay High Court in Gurmukh Singh (supra) as affirmed by the Supreme Court in Surendera Singh Parmar (supra) should be applied. As a result of which, Regulation 125(a) of the Pension Regulations for the Army cannot be relied upon by the respondents to deny to consider the case of the Petitioner for condonation of the short fall in the pensionable service up to six months.

In Surinder Singh Parmar (supra) the Supreme Court also referred to para 5 of the Ministry of Defense instruction dated 30th October, 1987. Clause 5 of which provides that for the purposes of calculating the length of qualifying service, the device of 'rounding off' would apply.

By applying the said clause, the Court ruled, the Petitioner would be entitled to round off the period of 14 years 8 months and 18 days as 15 years. In that case there would be no occasion for further condonation of any shortfall. Even if, for some reason, the said instruction is not applied, the short fall being only around 3 months and 12 days, it is easily condonable by the Opposite Parties under Rule 125 (a) of the Pension Regulations for the Army.

Consequently, the Court directed the Opposite Parties to condone the short fall in the qualifying service i.e. 15 years minus 14 years 8 months and 18 days and treat the Petitioner as having the minimum qualifying period for the purposes of pension in terms of Rule 132 of the Pension Regulations for the Army. It also required the respondents to pass necessary order by way of compliance with the above direction within eight weeks from the date of judgment.

Case Title: Ex-CFN Jagadish Chandra Mohanty @ Mohapatra v. Union of India & Ors.

Case No.: Writ Petition (Civil) No. 24808 of 2013

Date of Judgment: 04 March 2022

Coram: Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik

Authored by: Chief Justice Dr. S. Muralidhar

Counsel: Mr. Bisikesan Pradhan (for petitioner) and Mr. P.K. Parhi, Asst. Solicitor General (for the respondents)

Citation: 2022 LiveLaw (Ori) 20