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2001 DIGILAW 28 (JK)

Sarwan Singh Reen v. union Of India

2001-02-09

T.S.DOABIA

body2001
JUDGMENT 1. The petitioner-appellant is making a third attempt to convince that he is entitled to pension for having rendered service in the armed forces. He is unable to reconcile with the decision given by the respondents whereby this pension has been denied to him. 2. The facts as pleaded in the plaint be noticed in brief: The plaintiff joined the armed forces on 30-8-1961 and he continued to so serve till 25-2-1975. When he joined the Army he was having Matric as the qualification. He however, continued his further higher studies and has passed M.A. in Political Science as a private candidate from Jammu University. This educational qualification he attained while in service. At present he also possesses the qualification of M.A. (Eng.) and L.L.B. (Professional). As after acquiring these qualifications the plaintiff felt that he has a better prospects on the civil side, he sought voluntary discharge from service. This prayer was declined. This was one the ground that the plaintiff being Naik (substantive) should have rendered minimum of 19 years of service. Thereafter the army authorities had taken a decision to reduce the strength in the armed forces. In the light of this and in the light that the second request was made by the plaintiff, he was discharged. He applied for pension. For this he placed reliance on policy decision taken by the Union of India from time to time. He had adverted to the recommendations made by the 4th Central Pay Commission. These recommendations were to the effect that the pension can be given even if his service is 10 years or more but less than 15 years. What is said in para 7 of the plaint is reproduced below: "7. That under recommendation of Fourth Central Pay Commission regarding pensionary benefits in pension rules para ii (special pension and gratuity) Clause A (combatants) Sub-clause (a) (ii) (10 years or more but less than 15 years) are also authorised pensionary benefit equal to the service pension as determined as per para 6.2 (b) of the same rules". 3.The plaintiff goes on to make a recital in the plaint that he has completed 131/2 years in service. In addition to this he claimed certain other amounts. These are adverted to in para 9 of the plaint. 3.The plaintiff goes on to make a recital in the plaint that he has completed 131/2 years in service. In addition to this he claimed certain other amounts. These are adverted to in para 9 of the plaint. The basic contention of the appellant is that he having served 13 years and this being a colour service he should be granted pension. 4. The respondents filed their written statement. It was admitted that the plaintiff has rendered 13 years, 6 months and one day service. It is submitted that the term of engagement was that he would render 12 years of colour service and 8 years reserved liability. What is said in para 1 of the written statement is re-produced below: "1. That in response to para 1, it is submitted that plaintiff was discharged from Army services on 26-2-1975 at his own request from the rank of Naik/ Lab. Asstt. on completion of Army service of 13 years 6 months and one day as he was initially enrolled on 30-8-1961 under terms of engagement of 12 years of colour service and 8 years of reserve liability". 5. It is further pleaded in the written statement that the plaintiff/ appellant was discharged at his own request. Ultimately in para 6 of the written statement, it was pleaded that the requirement to have 15 years of qualifying service is a must for claiming pension. It is further submitted that the petitioner is not entitled to the amount claimed by him in para 9 of the plaint. 6. Three issues were framed by the trial court. For facility reference, these are re-produced below: 1. Whether suit in the present form is not maintainable by this court? OPD 2. Whether the plaintiff is entitled for service pension on the service rendered in the Army? OPD 3. Whether this court has the jurisdiction to try the suit? OPD. 7. The plea of the plaintiff that he was entitled to pension after having rendered 12 years of colour service was negatived. Reliance was placed on Regulation 132, which is to the effect, "Unless otherwise provided for the minimum qualifying colour service for earning a service pension is 15 years". As material issue was found to be issue no. 2 and as findings were recorded against the plaintiff, the suit came to be dismissed. An appeal was preferred. Appeal was also dismissed. Reliance was placed on Regulation 132, which is to the effect, "Unless otherwise provided for the minimum qualifying colour service for earning a service pension is 15 years". As material issue was found to be issue no. 2 and as findings were recorded against the plaintiff, the suit came to be dismissed. An appeal was preferred. Appeal was also dismissed. This is how the second appeal has been preferred. 8. The plaintiff/ appellant submits that if the terms of appointment are taken into consideration then it becomes apparent that in order to qualify for pension he was required to serve for a minimum period of 12 years. There-after he could be kept in reserved service upto that period which could lead to completion of 20 years. It is however, reiterated that on the completion of 12 years of colour service he would get the benefit of Regulation 145 of the Defence Service Regulations Vol.-l, which deals with completion of colour service. This Regulation 145 lays down: "145. Completion of Colour Service - An enrolled person will normally be required to complete his prescribed colour engagement before he is transferred to the pension establishment, which reserve liability. Those who seek discharge before completion of prescribed colour service on compassionate grounds will also have reserved liability. The relevant portion of the enrolment from IAFK-1162 will be duly completed. Normally releases/ retirements, including those of JCOs, NCOs and WOs will take place on the last date of the month in which due, except in case of compassionate discharges on medical grounds and removal/ dismissal on disciplinary grounds in whose case the date of release/ retirement will be the date of sanction of such release or discharge or dismissal or removal". 9. The plaintiff submits that the terms of his appointment and regulation 145 referred to above is taken note of then he becomes entitled to pension after serving 12 years of colour service. The proforma which was made use of for the enrolment of the plaintiff speaks of "In Lieu of IAFK 1162". The requisite conditions on which the plaintiff/ appellant places reliance are produced below : "........... No person shall by reason of an error of his enrolment paper or otherwise, be compelled to serve for a period longer than that for which he should have been enrolled". The requisite conditions on which the plaintiff/ appellant places reliance are produced below : "........... No person shall by reason of an error of his enrolment paper or otherwise, be compelled to serve for a period longer than that for which he should have been enrolled". "When you have served (f) (as a boy till you reach the age of seventeen years you will be transfered to the ranks as a man provided you have attained the specified standards and thereafter when you have served) for not less than 12 years in Army service and if required, to do so for a further period in Reserve Service sufficient to complete a total period of 20 years service your will be discharged with all convenient speed provided that (1) in the event of your deserting service between the date of desertion and that of apprehension or surrender shall (sick) reckon as service towards discharge (2) you will not be entitled to be discharged, if war is imminent or exiting (3) you will not be entitled to be discharged if you are in Army Service and the regiment, battalion, company, establishment or unit to which your belong is ten present, below strength". "I agree to extend my Army Service for the whole period of my enrolment instead of being preferred to the Reserve". 10. Regulation 144 of the defence Service Regulation is being reproduced below: "145. Continuance in the Service - (a) when an OR completes his colour engagement and has not applied for his discharge he may be allowed to continue to serve with the colours so long as it is desirable and he is within the prescribed age limit. Such continuance in the service does not require formal sanction. The relevant portion in the Enrolment Form IAKF-1162 will be duly completed, (b) On completing the prescribed colour service, OR will be subjected to a strict medical examination. Only those personnel whom it is desirable to retain in the interest of service will be permitted by the competent authority to continue in service upto the maximum prescribed age limit. The relevant portion of the Enrolment Form IAFK 1162 will be duly completed. Those who subsequently become unfit may be discharged from service and transferred to pension establishment at any time during the extended period of service". 11. The relevant portion of the Enrolment Form IAFK 1162 will be duly completed. Those who subsequently become unfit may be discharged from service and transferred to pension establishment at any time during the extended period of service". 11. The Union of India is placing reliance on Regulation 132 of the Army Pension Regulations. This be also taken note of: "132. Unless otherwise provided for the minimum qualifying colour service for earning a service pension is 15 years", 12. A perusal of the term of conditions of enrolment of the plaintiff/ appellant make it apparent that the plaintiff was to fulfill the colour service of 12 years in the Army. It was only if he was called upon specifically then he was to complete a total service of 20 years. Again the plaintiff/ appellants agreed to extend his whole Army service for the period of enrolment instead of being transferred to the reserved, meaning thereby that the requirement for the plaintiff to complete reserve service was not to be insisted upon. Whatever was his colour service was to be treated as total service. If this be the position then in terms of Regulation 145, the plaintiff/ appellant would on discharge was to stand transferred to pension establishment. The plaintiff/ appellants enrolment was governed by terms and conditions given in Form IAFK-1162 and this is a manga Charta. Thus on the plain reading of the terms and conditions given in the Form IAFK-1162 and Regulations, it becomes apparent - (i) that the appellants was supposed to complete 12 years of colour service; (ii) that the appellant had completed colour service of 13½ years, (iii) that the appellant was to remain in reserve, was not insisted upon; 13. If the last portion of the form of enrolment is taken into consideration then plaintiff/ appellant on completion of his 12 years of colour service stood transferred to pension establishment. Regulation 132 on which reliance is being placed would apply only if there is nothing to the contrary. It is Defence Service Regulation 145 which runs to the contrary and it would govern the case of the appellant. This appeal is accordingly allowed. The appellant is held entitled to pension. His pension be calculated and be paid alongwith the arrears. The plaintiff/appellant is held entitled to interest at the rate of upto the date of filing of the suit. This appeal is accordingly allowed. The appellant is held entitled to pension. His pension be calculated and be paid alongwith the arrears. The plaintiff/appellant is held entitled to interest at the rate of upto the date of filing of the suit. During the period the suit was pending, the rate of interest would be 9%. Let the payment be made within a period of two months from the date a copy of the judgement is made available by the appellant to the Union of India. After this period is over and if the pension is not released, the rate of interest would be 12 p.a. 14. Appeal allowed in the manner indicated above.