AFT Regional Bench, Kochi's Order
Re-produced below is the order of Kochi bench of AFT regarding calculating Qualifying service for pensionary award:-
ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI
MONDAY, THE 14TH DAY OF SEPTEMBER, 2015/23RD BHADRA, 1937
CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT: T.M.HANEEFA RAWTHER, EX SEPOY NO. 13820091, DEPOT M.T. WING, ARMY SUPPLY CORPS, S/O.MUHAMMED MUSTHAFA RAWTHER, AGED 70 YEARS, THEKKESANKARATHIL, KADAKKADU, PANDALAM.P.O., PATHANAMTHITTA DISTRICT, STATE OF KERALA.
BY ADVS.M/S.S.MUHAMMED HANEEF & R.KRISHNA KUMAR.
Versus
RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, PARLIAMENT ANNEXE, NEW DELHI – 110 001. 2. OFFICER IN CHARGE, ARMY SUPPLY CORPS RECORDS (M.T.), AURANGABAD – 431 001. 3. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), OFFICE OF THE P.C.D.A.(P), DRAUPADI GHAT, ALLAHABAD- 211 014, UTTAR PRADESH.
BY ADV. SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVT. COUNSEL.
OA 179 of 2014 : 2 :
O R D E R
1. The original application has been filed by T.M.Haneefa Rawther, No.13820091, Ex Sepoy of Army Supply Corps seeking pension and other retiral benefits. 2. The essential facts of the case are that the applicant was enrolled as a Sepoy in Army Supply Corps on 03 April 1963 initially for a period of 10 years and was subsequently given a further extension for a period of another 05 years. However he was discharged from the Army on 04 December 1975 at his own request on compassionate grounds after serving 12 years 08 months and 01 day, under Army Rule 13(3) Item III(iv). Since he did not have the minimum qualifying period of pensionble service of 15 years, no pension was granted to him. 3. The learned counsel for the applicant Sri.S.Muhammed Haneef submitted that the applicant who was OA 179 of 2014 : 3 : discharged from the service in 1975 had not been granted pension or any other benefits till date. The requests for the same made by the applicant on various occasions were not acceded to. One such request made to Secretary, Ministry of Defence is placed at Annexure A2. The applicant is now without any source of income and being 70 years old, is in dire financial state. Since it is a case of pension and in view of the principles laid down by the Hon'ble Apex Court in the case of Union of India vs. Tarsem Singh, (2008) 8 SCC 648, the applicant is liable to be granted pension even if there is such a long delay, is the submission of the learned counsel. The learned counsel therefore prayed that the applicant may be granted pension and other benefits at an early date. 4. Sri Tojan J Vathikulam, learned Central Government Counsel for the respondents submitted that the claim itself is belated, as over 39 years have elapsed since the discharge of the applicant from the Army. He further submitted that the entire service documents in respect of the applicant, being a non-pensioner, had been destroyed on expiry of mandatory OA 179 of 2014 : 4 : retention period of 25 years, in accordance with Reg 595 of Regulations for the Army. Only a long roll maintained by ASC Records is available. As per details available in the long roll, the applicant was enrolled on 03 April 1963 for 10 years of colour service and 10 years in reserve (Annexure R1). On completion of initial engagement of 10 years of colour service, the applicant was granted an extension of service for 05 years and had he completed the same, he would have been eligible for pension. However he was discharged at his own request on compassionate grounds after rendering 12 years 08 months and 01 day of service. 5. The learned counsel further submitted that as per Reg 155 of Pension Regulations for the Army 1961, even for reservist pension, there is a requirement to have combined colour and reserve service of not less than 15 years and 15 years service is required for regular pension (Reg 132). However, the applicant did not have the requisite qualifying service and therefore was not granted pension. The applicant was however paid at the time of discharge AFPP balance, OA 179 of 2014 : 5 : DCRG, service gratuity and whatever credit balance was due to him. Therefore all entitled dues of the applicant had been paid at the time of his discharge. Since all records had been destroyed, it is not possible at this belated stage to verify or substantiate any other claims made by the applicant who had been silent all these years. 6. Heard rival submissions and perused the records. 7. In accordance with Reg 132 of the Pension Regulations 1961 of the Army, the minimum qualifying service for earning pension shall be 15 years. Reg 125 provides for condonation of deficiency in service for pension upto a period 06 months which has since been modified to 01 year according to Reg 44 of Pension Regulations 2008. Both these provisions however exclude granting condonation to individuals who were discharged at their own request. This clause is no longer relevant, as Reg 82(a) of Pension Regulations for the Navy which is pari materia to the old Reg 125(a) and new Reg 44 of the Army has been declared ultra vires by the Hon'ble OA 179 of 2014 : 6 : Bombay High Court in the case of Gurmukh Singh vs. Union of India, WP(OS).No.430 of 2005. The Hon'ble High Court of Delhi in Surender Singh Parmar vs. Union of India, WP(C).No.12507 of 2004 held similar view. In both the judgments the concerned Regulation was declared as ultra vires and violative of Article 14 of the Constitution of India. As commented upon by the Hon'ble Apex Court in the case of Union of India & anr. vs. Surender Singh Parmar, (2015) 3 SCC 404, there was no challenge to the said decisions before the Hon'ble Apex Court. Therefore, in our view, the applicant is eligible for condonation of service for a period of one year which would imply that if he had 14 years of service his case for grant of pension could be considered. 8. The Hon'ble Apex Court in the case of Surender Singh Parmar (supra) had also considered the provisions in the Pension Regulations for calculating the length of qualifying service where it is fraction of a year. Reg 9 of the Pension Regulations, 1961 permits fraction of an year equal to three months and above but less than six months to be treated as OA 179 of 2014 : 7 : having completed one half year to be reckoned as qualifying service. Reg 18(a) of Pension Regulations 2008 has further amplified the provision wherein a period of 09 months and above would be counted as two half years. While the said Regulations stipulate that the provisions will not be applicable for completing minimum qualifying service for pensionary awards, the Apex Court in case of Surender Singh Parmar (supra) has held that the provision for calculating the length of qualifying service of fraction of a year is to be counted even when examining completion of minimum qualifying service for pensionary awards. In the said case the Hon'ble Apex Court held that the appellant therein who had completed 13 years 10 months and 13 days of service before seeking voluntary retirement was eligible to claim total service period of 14 years for purpose of calculation of pension. 9. In case of the applicant it is not disputed that he had a total service of 12 years 08 months and 01 day. Since his fraction of year service is less than 09 months, he is not eligible for rounding off of the same to 13 years and OA 179 of 2014 : 8 : therefore his qualifying service would remain 12 years 08 months and 01 day. Even if the applicant is given the benefit of maximum permissible condonation of deficiency in service of one year, he would still remain well short of 15 years of qualifying service required for grant of pension. 10. In view of the foregoing, we do not see any merit in the contention of the applicant and the Original Application is accordingly dismissed. 11. There will be no order as to costs.
Re-produced below is the order of Kochi bench of AFT regarding calculating Qualifying service for pensionary award:-
ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI
O.A.NO.179 OF 2014
MONDAY, THE 14TH DAY OF SEPTEMBER, 2015/23RD BHADRA, 1937
CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT: T.M.HANEEFA RAWTHER, EX SEPOY NO. 13820091, DEPOT M.T. WING, ARMY SUPPLY CORPS, S/O.MUHAMMED MUSTHAFA RAWTHER, AGED 70 YEARS, THEKKESANKARATHIL, KADAKKADU, PANDALAM.P.O., PATHANAMTHITTA DISTRICT, STATE OF KERALA.
BY ADVS.M/S.S.MUHAMMED HANEEF & R.KRISHNA KUMAR.
Versus
RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, PARLIAMENT ANNEXE, NEW DELHI – 110 001. 2. OFFICER IN CHARGE, ARMY SUPPLY CORPS RECORDS (M.T.), AURANGABAD – 431 001. 3. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS), OFFICE OF THE P.C.D.A.(P), DRAUPADI GHAT, ALLAHABAD- 211 014, UTTAR PRADESH.
BY ADV. SRI. TOJAN.J.VATHIKULAM, CENTRAL GOVT. COUNSEL.
OA 179 of 2014 : 2 :
O R D E R
1. The original application has been filed by T.M.Haneefa Rawther, No.13820091, Ex Sepoy of Army Supply Corps seeking pension and other retiral benefits. 2. The essential facts of the case are that the applicant was enrolled as a Sepoy in Army Supply Corps on 03 April 1963 initially for a period of 10 years and was subsequently given a further extension for a period of another 05 years. However he was discharged from the Army on 04 December 1975 at his own request on compassionate grounds after serving 12 years 08 months and 01 day, under Army Rule 13(3) Item III(iv). Since he did not have the minimum qualifying period of pensionble service of 15 years, no pension was granted to him. 3. The learned counsel for the applicant Sri.S.Muhammed Haneef submitted that the applicant who was OA 179 of 2014 : 3 : discharged from the service in 1975 had not been granted pension or any other benefits till date. The requests for the same made by the applicant on various occasions were not acceded to. One such request made to Secretary, Ministry of Defence is placed at Annexure A2. The applicant is now without any source of income and being 70 years old, is in dire financial state. Since it is a case of pension and in view of the principles laid down by the Hon'ble Apex Court in the case of Union of India vs. Tarsem Singh, (2008) 8 SCC 648, the applicant is liable to be granted pension even if there is such a long delay, is the submission of the learned counsel. The learned counsel therefore prayed that the applicant may be granted pension and other benefits at an early date. 4. Sri Tojan J Vathikulam, learned Central Government Counsel for the respondents submitted that the claim itself is belated, as over 39 years have elapsed since the discharge of the applicant from the Army. He further submitted that the entire service documents in respect of the applicant, being a non-pensioner, had been destroyed on expiry of mandatory OA 179 of 2014 : 4 : retention period of 25 years, in accordance with Reg 595 of Regulations for the Army. Only a long roll maintained by ASC Records is available. As per details available in the long roll, the applicant was enrolled on 03 April 1963 for 10 years of colour service and 10 years in reserve (Annexure R1). On completion of initial engagement of 10 years of colour service, the applicant was granted an extension of service for 05 years and had he completed the same, he would have been eligible for pension. However he was discharged at his own request on compassionate grounds after rendering 12 years 08 months and 01 day of service. 5. The learned counsel further submitted that as per Reg 155 of Pension Regulations for the Army 1961, even for reservist pension, there is a requirement to have combined colour and reserve service of not less than 15 years and 15 years service is required for regular pension (Reg 132). However, the applicant did not have the requisite qualifying service and therefore was not granted pension. The applicant was however paid at the time of discharge AFPP balance, OA 179 of 2014 : 5 : DCRG, service gratuity and whatever credit balance was due to him. Therefore all entitled dues of the applicant had been paid at the time of his discharge. Since all records had been destroyed, it is not possible at this belated stage to verify or substantiate any other claims made by the applicant who had been silent all these years. 6. Heard rival submissions and perused the records. 7. In accordance with Reg 132 of the Pension Regulations 1961 of the Army, the minimum qualifying service for earning pension shall be 15 years. Reg 125 provides for condonation of deficiency in service for pension upto a period 06 months which has since been modified to 01 year according to Reg 44 of Pension Regulations 2008. Both these provisions however exclude granting condonation to individuals who were discharged at their own request. This clause is no longer relevant, as Reg 82(a) of Pension Regulations for the Navy which is pari materia to the old Reg 125(a) and new Reg 44 of the Army has been declared ultra vires by the Hon'ble OA 179 of 2014 : 6 : Bombay High Court in the case of Gurmukh Singh vs. Union of India, WP(OS).No.430 of 2005. The Hon'ble High Court of Delhi in Surender Singh Parmar vs. Union of India, WP(C).No.12507 of 2004 held similar view. In both the judgments the concerned Regulation was declared as ultra vires and violative of Article 14 of the Constitution of India. As commented upon by the Hon'ble Apex Court in the case of Union of India & anr. vs. Surender Singh Parmar, (2015) 3 SCC 404, there was no challenge to the said decisions before the Hon'ble Apex Court. Therefore, in our view, the applicant is eligible for condonation of service for a period of one year which would imply that if he had 14 years of service his case for grant of pension could be considered. 8. The Hon'ble Apex Court in the case of Surender Singh Parmar (supra) had also considered the provisions in the Pension Regulations for calculating the length of qualifying service where it is fraction of a year. Reg 9 of the Pension Regulations, 1961 permits fraction of an year equal to three months and above but less than six months to be treated as OA 179 of 2014 : 7 : having completed one half year to be reckoned as qualifying service. Reg 18(a) of Pension Regulations 2008 has further amplified the provision wherein a period of 09 months and above would be counted as two half years. While the said Regulations stipulate that the provisions will not be applicable for completing minimum qualifying service for pensionary awards, the Apex Court in case of Surender Singh Parmar (supra) has held that the provision for calculating the length of qualifying service of fraction of a year is to be counted even when examining completion of minimum qualifying service for pensionary awards. In the said case the Hon'ble Apex Court held that the appellant therein who had completed 13 years 10 months and 13 days of service before seeking voluntary retirement was eligible to claim total service period of 14 years for purpose of calculation of pension. 9. In case of the applicant it is not disputed that he had a total service of 12 years 08 months and 01 day. Since his fraction of year service is less than 09 months, he is not eligible for rounding off of the same to 13 years and OA 179 of 2014 : 8 : therefore his qualifying service would remain 12 years 08 months and 01 day. Even if the applicant is given the benefit of maximum permissible condonation of deficiency in service of one year, he would still remain well short of 15 years of qualifying service required for grant of pension. 10. In view of the foregoing, we do not see any merit in the contention of the applicant and the Original Application is accordingly dismissed. 11. There will be no order as to costs.
