JUDGMENT 1. - This special appeal is directed against the judgment and order dated 16.9.1996, passed by the learned Single Judge whereby the writ petition filed by the appellant in the matter relating to the pensionary benefits for the service rendered by him in the Army was rejected on the ground of laches alone. 2. The appellant came with the case that he was initially enrolled with the Rajputana Rifles of Army on 7.3.1942 and deployed in Eastern Sector during World War-II and was discharged on 20.9.1946 on account of demoblisation after the war was over. He was then re-enrolled in Rajputana Rifles on 31.7.1948 and deployed in Jammu & Kashmir and again discharged from service on 30.11.1954 on being rendered surplus to the Army Establishment. It appears that in the year 1986, the petitioner Trade a demand for special pension. On such demand being made, a reply dated 29.8.1986 was sent to him by the Rajputana Rifles, Delhi Cantt. under the signature of the Record Officer for OIC Records and the contents of this letter dated 29.8.1986, Annexure-2 to the writ petition, are reproduced as under: Tele: 393608 Records The Rajputana Rifles Delhi Cantt- 110010 29 Aug. 86 RNE/SP/9/3/46 No. 2834291 Ex. Rfn Sultan Singh S/o Ganpat Singh Vill & P.O.- Dumra, Distt. Jhunjhunu (Raj.) GRANT OF SERVICE PENSION 1. Refer to your letter dated 08 Jul. 86 received through Zila Sainik Board Jaipur (Raj.) letter No. F-31 (1)/R.S.: M/P/86/9841-42 dated 30 Jul. 86. 2. Your Service documents have been destroyed during 1980 being no longer required . As per our records you were enrolled on 31 Jul. 48 and discharged from service w.e.f. 30 Nov 54 being surplus to the establishments. You have also got 4 years and 279 days former service. Thus, you total service comes to 11 years and 37 days as under: (a) Former Service - 4 years and 279 days. (b) Service from 31 Jul 48 to 30 Nov 54 - 6 years 125 days Total Service 11 Years and 37 days. 3. The minimum service required to earn pension in the Army is 15 years. Since you have not completed the minimum pensionable service of 15 years in the Army. You are not eligible for grant of service pension. However you have been paid a sum of Rs. 316/- and 11 annas for the service rendered from 31 Jul. 48 to 30 Nov. Since you have not completed the minimum pensionable service of 15 years in the Army. You are not eligible for grant of service pension. However you have been paid a sum of Rs. 316/- and 11 annas for the service rendered from 31 Jul. 48 to 30 Nov. 54 as service gratuity. Sd/- (A.S. Dhillon) Capt. Record Officer For OIC Records Copy to The Secretary Zila Sainik Board - for information with reference to Jaipur (Raj.) their letter quoted above reference. 3. It appears that further correspondence transpired between the petitioner and the respondents and as a part of this correspondence a letter dated 18.3.1994 sent by the petitioner to the Officer-in-Charge, Records, of Rajputana Rifles, Delhi Cantt. with reference to the Officer-in-Charge, Records of Rajputana Rifles, Delhi Cantt., letters dated 2.11.1993 shows that the petitioner claimed to be entitled for grant of special pension in accordance with Regulations 164 to 167 of the pension Regulations of the Army Part I as he had been discharged being surplus due to the reduction in strength of Establishment of Army. A copy of this letter has been placed on record as Annexure-3 to the writ petition. The Rajputana Rifles sent another letters dated 16.7.1994 to the petitioner with reference to his letter dated 30.6.1994 in which it was held out that minimum of 15 years of service was necessary for service pension and whereas he had rendered the service of 6 years and 4 months only, he was not entitled to service pension. It was further mentioned in this letter that if the petitioner wants the old age pension or any other financial aid, he may approach concerned District Office of Sainik Beard and further that at the time of discharge, he had already been paid the service gratuity of a sum of Rs. 316/- and 11 annas in advance. The petitioner then sent notice, to the respondents through his advocate, dated 19.8.1994. This legal notice was replied by the Office of the Defence Accounts (Pensions), Allahabad on 6.10.1994, calling upon the Rajputana Rifles to furnish the information/particulars about the petitioner as mentioned at Item No. 1 to 4 of this letter and copy of this reply dated 6.10.1994 was also endorsed to the petitioner. This legal notice was replied by the Office of the Defence Accounts (Pensions), Allahabad on 6.10.1994, calling upon the Rajputana Rifles to furnish the information/particulars about the petitioner as mentioned at Item No. 1 to 4 of this letter and copy of this reply dated 6.10.1994 was also endorsed to the petitioner. The Accounts Officer (Pensions), Chief Controller of Defence Accounts (Pensions), Allahabad then sent a letter dated 1.3.1995 to the Officer-in-Charge of the Rajputana Rifles to intimate the present position of the case,. Thereafter, a letter dated 12.4.1995 was sent by Mr. Shyam Singh, Advocate to the Rajputana Rifles, Delhi Cantt., under the instructions of his more than one clients including the present petitioner-Sultan Singh. This letter dated 12.4.1995 was replied by the Rajputana Rifles vide its letter dated 7.5.1995 in which the present position about each of the cases mentioned in the letter dated 12.4.1995 was replied at Item No. (a) to (h) of this letter. At Item No. (c) of this letter, the position was made known about the petitioner's case and it was mentioned that under Rule 164 of Pension Regulations Part-1, 1961, the individual can be considered for grant of special pension or gratuity at the discretion of President. In the instant case the individual was paid a sum of Rs. 316.11 annas as service gratuity on his discharge from service after rendering 11 years 37 days service. Therefore, the individual cannot be considered for grant of special pension. The individual may be apprised accordingly. This letter was replied on behalf of the petitioner through Mr. Shyam Singh, Advocate vide letter dated 12.5.1995 and the same was replied again by the Senior Records Officer of the Rajputana Rifles, Delhi Cantt., vide his letter dated 3.7.1995 in which it was reiterated that Sheet roll, enrolment form and other connected documents of the individual have already been destroyed during 1980 as the retention period of their documents from the date of discharge of the individual was already over and this Office was, therefore, unable to take any further action in the matter as the case has been referred after 40 years from the date of discharge; the case may, therefore, be treated as closed as far as this office is concerned. Mr. Mr. Shyam Singh, Advocate then sent a letter dated 15.7.1995 to the respondents and thereafter the present petition was filed by the petitioner in this Court on 16.8.1995. On 28.5.1995, the notices were issued to the respondents to show cause s to why the petition be not admitted. In response to the notices issued by this Court, a reply to the writ petition seeking to traverse the claim of the petitioner and contesting the same on facts and grounds stated in the reply dated 4.1.1996 was filed. To this reply dated 4.1.1996, a rejoinder dated 16.1.1996 was filed by the petitioner. 4. When the matter came up before the Court, the learned Single Judge dismissed the petition on the ground of laches alone. It is this order dated 16.9.1996 passed by the learned Single Judge which has been made the subject matter of challenge In this appeal. 5. Learned counsel for the appellant has submitted that no doubt it was a case of delay of number of years yet the petition could not be dismissed on the ground of laches in view of the law laid down in the various decisions of this Court and the Supreme Court and he has raised a grievance that the cases which were cited by the petitioner before the learned Single Judge have not been considered and the same have been held to be not applicable by saying that the cases which were cited relate to pension whereas it was a case in which the petitioner was claiming the special pension. 6. In our considered opinion, the matter relating to special pension is certainly a matter about pension whether they are for family pension or for service pension or for special pension or for any other akin pensionary benefits. As a preposition of law, no distinction can be made in a case relating to pension and other case relating to special pension for the purpose of considering the question of delay. While having our strong reservations about this distinction of cases relating to pension and special pension, we have considered it appropriate to go through the decisions as were cited before the learned Single Judge. One of the case cited before the learned Single Judge was the case of D.N. Prasad v. State of Bihar reported in AIR 1971 SC 1409 . One of the case cited before the learned Single Judge was the case of D.N. Prasad v. State of Bihar reported in AIR 1971 SC 1409 . In this decision, the Supreme Court was concerned with a case under Bihar Pension Rules and it was held that the right to receive pension flows to the officer employee not because of the said order but by virtue of the Rules; right to pension was held as a 'property' and that pension is not a bounty payable on the sweet will and pleasure of the Government and that the right to pension is a valuable right vesting in a Government servant. On the question of bar of suits relating to the pension under the Pension Act, 1871, Section 4 thereof, it was held by the Supreme Court that though a Civil Court is barred from entertaining suit relating to pension such bar does not stand in the way of a writ of mandamus being issued to State to properly consider the claim of a servant for payment of pension according to law. We find that in this case, the question of delay in pressing the claim of pension has not been considered. The case of Mohd. Usman v. U.O.I. reported in AIR 1984 Rajasthan 157 (D.B.) is, of course, a case in which the delay was considered but it has nothing to do in the case of pension. Similarly the other cases of P.V. Nayyar v. U.O.I., reported in 1992 Lab.I.C. 40 , the case of D.N. Prasad v. State of Bihar, reported in AIR 1971 SC 1409 , the case of R.S. Deodhar v. State of Maharashtra, reported in AIR 1974 SC 259 , the case of State of Punjab v. Kushal Singh, reported in AIR 1973 SC 834 : [1972 SLR 836 (SC)] , the case of D.S. Nakara v. 'U.O.I., reported in AIR 1983 SC 130 : [1983(2) SLR 246 (SC)] , the case of Rampal Singh v. U.O.1., reported in AIR 1984 SC 504 : [1983(3) SLR 291 (SC)] , the case of State of Kerala v. M. Padmanaban Nair, reported in 1985 (1) SLJ 106 SC : [1985(l) SLR 750 (SC)] , the case of O.P. Gupta v. U.O.I., reported in AIR 1987 SC 2257 : [1987(5) SLR 288 (SC)] are, of course, the cases on the question of delay but not relating to pension matters. In the case of Rampal Singh (supra), the question of delay was touched only on its fringes. While mentioning in paras-8 of the judgment that the pension was denied for a period of 15 years until the man knocked at the doors of Allahabad High Court and when he lost there, he came over to the Supreme Court. The Supreme Court noticed that for a period of 15 years, the pension was denied to the low grade army soldier to which he was legitimately entitled and that too on wholly untenable grounds. However, this case appears to have been decided on its own facts and no principles have been laid down in this case about the delay in the matters relating to pension. The case of Roshan Lal v. U.O.I. & Ors., reported in 1992 (3) SLR 6 , is a case relating to disability pension. In this case, it was held by the Punjab & Haryana High Court that in the matters of pension/disability pension, the right to pension accrues every month and no triable issue of limitation is said to have arisen and that the writ could not be dismissed on the ground of delay and laches. Yet another decision of the Punjab and Haryana High Court in the case of Sardar Singh v. U.O.I., reported in 1992 (6) SLR 683 , is a case relating to pension/disability pension. The petition was of course filed after a lapse of almost 40 years, the Court found, that the petitioner had been regularly representing to the authorities and his claim was declined only on the ground that disability was not attributable to or aggravated by military service. The ground of denial was found to be factually incorrect and it was considered to be in the interest of justice to allow his claim. 7. It is, therefore, clear that without considering the principles and ratio as had been laid down in these cases, a general observation was made by the learned Single Judge that the case cited before him relate to pension and present case t hand was not a case of pension but that of special pension and therefore these cases were not applicable. However, the learned counsel for the petitioner has cited before us the decision rendered by Single Bench of this Court in the case of pension but that of special pension and therefore these cases were not applicable. However, the learned counsel for the petitioner has cited before us the decision rendered by Single Bench of this Court in the case of Lal Singh v. Union of India & Ors., reported in RLR 1999 (1) 114 . It was held in the said case that the respondents were guilty of culpable delay in setting the claim of pension. Last but not least, the case of Din Mohammed v. Union of India & Ors. , a decision rendered by Division Bench of this Court. At page No. 9 of the judgment, the Court has made a reference to its earlier decision of Sint. Rukma v. State of Rajasthan & Ors., reported in WLC (Raj.) 2000 (3) 102 and has observed that the cause of action in the matter of pension is recurring and the petition could not be thrown only on the ground of delay and lathes. In the case of Smt. Rukma (supra), the aforesaid principle was laid down and the same has also been followed in the case of Din Mohammed (Supra). 8. In the light of the aforesaid two Division Bench decisions, the view taken by the learned Single Judge in rejecting the petitioner relating to special pension by observing that it was a case of special pension not of pension can't be sustained. Even otherwise, we are of the view that in such matters, the honest and just claim of a citizen should not be denied by the welfare State on the ground of delay if the citizen has a case on merits. The plea of delay or limitation are meant for private litigation and against the enforcement of pensionary rights, a welfare State is not supposed to advance such plea to defeat an honest and just claim on merits. In such matters, where an army personnel who has devoted, participated in the war for the security of the nation, the High Court should be slow in rejecting petitions on the technical ground of delay and lathes. 9. In such matters, where an army personnel who has devoted, participated in the war for the security of the nation, the High Court should be slow in rejecting petitions on the technical ground of delay and lathes. 9. We, therefore, proceed to decide as to whether the petitioner is entitled for special pension under Regulations and provisions of special pension and gratuity i.e. Special pensions and gratuities to Junior Commissioned Officers, Other Ranks and Non-Combatants (Enrolled). The Regulations No. 164 and 167 which are relevant in this regard are reproduced as under from the book supplied by Shri Shyam Singh Adv., title as Defence Services Regulations, Pension Regulations for the Anny 1961, Part 1, Govt. of India, Ministry of Defence.(Orders issued upto and for 31.8.1960 have been incorporated in this Book) PRINTED IN INDIA BY THE MANAGER GOVT. OF INDIA PRESS NASIK ROAD AND PUBLISHED BY THE MANAGER OF PUBLICATIONS DELHI-8 1962 "164. Special pension or gratuity may be granted, at the discretion of the President, to individuals who are not transferred to, the reserve and are discharged in large numbers in pursuance of Government's policy: (i) Of reducing the strength of establishment of the Army: or (ii) Of re-organisation, which results in disbandment of any units/formations." "167 The scale of special pension or gratuity is:. Qualifying Service Scale of Special Pension/gratuity 1 2 Combatants 15 years or more Pension at the rates specified in regulation 136. 10 years or more but less than 15 years Pension proportionate to the minimum service pension, under regulation 136 appropriate to the rank and group in the ratio that the completed years of qualifying service rendered bears to 15. 5 years or more but less than 10 years Gratuity at the scale of 1⅓ months' pay for each completed years of qualifying service. Less than 5 years 20 years or more Gratuity equal to 3 months' pay. Pension at the retes specified in regulation 146. 15 years or more but less than 20 years Pension proportionate to the minimum service pension under regulation 146 in the ratio that the completed years of qualifying service rendered bears to 20. 5 years or more but less than 15 years Gratuity to the scale of 1⅓ months' than 15 years pay for each completed year of qualifying service. Gratuity equal to 3 months' pay. 10. 5 years or more but less than 15 years Gratuity to the scale of 1⅓ months' than 15 years pay for each completed year of qualifying service. Gratuity equal to 3 months' pay. 10. The reading of these two regulations show that special pension or gratuity may be granted under Regulation 164 and either of the two is to be granted to individuals who are not transferred to the reserve and policy, are discharged in large numbers in pursuance of the Government's policy, in case the reduction of the strength of the establishment of the Army which is very clear from the correspondence which has transpired between the petitioner and the respondents; rather it is admitted and proved by the documents filed by the respondents themselves that the petitioner had served for a period of 11 years and 37 days as mentioned in the letter dated 7.5.1995 as has been quoted in the earlier part of the order. Thus, there is no dispute that the petitioner has not served for 5 years so as to entitle him to pension but he had certainly served for more than 10 years so as to entitle him to special pension under Regulation 164 read with Regulation 167. The ground which has been taken that the records have been destroyed in the year 1980 may be factually correct but it has been pointed out that records were not required to be destroyed and even if it is taken that the same had been actually destroyed, from whatever record is available as per the Records Officer of the Rajputana Rifles, it is established beyond any manner of doubt the the petitioner had rendered more than 10 years of survive and there was a case of reduction of strength of the establishment and the petitioner had served for 11 years and 37 days. Even if the petitioner had made the representation in the year 1986 after a period of more than 40 years, his claim was considered by the respondents with reference to the Regulations and the same was rejected only by saying that he was not entitled to the grant of special pension because he was already granted the gratuity of Rs. 316/- and 11 Annas at the time of his discharge. Mr. Bhanwar Bagri and Mr. 316/- and 11 Annas at the time of his discharge. Mr. Bhanwar Bagri and Mr. Sanjay Pareek have also submitted that these are the Regulations of 1964 and the appellant can base his case only on such regulations which were in force at the time of his discharge and the petitioner cannot claim the special pension under Regulation 164 and 167. Mr. Shyam Singh, learned counsel for the petitioner on this aspect has replied according to the Pension Regulations for the Army, 1961, Part-1, Government of India Ministry of Defence contains orders issued upto and for 31.8.1960 which have been incorporated in this Book at page No. 129 onwards and at Page No. 136 that the new Regulation 164 correspond to the old Regulation 316 and the New Regulations 167 correspond to the old Regulation 318 as would be clear from the following: No of the regulation as in Part I Pension No. of the rule in PR I Pt. II Explanatory remarks Regulations (1961) on which the new regulation is based 1. 2 3 164, 316 Modified in accordance with Govt. of India Ministry of Defence letter No. F/5I/9/D (PP)/53 dated the 21st June, 1954. 167, 318 (i) Modified in accordance with Govt. of India (ii) Table II to rule 318 omitted as IMC is not in (iii) Table III to rule 318 omitted as no special pension/ gratuity has been laid down for reservists. Ministry of Defence letter No. F/51/9/D (PP)/53 dated the 21st June, 1954. 11. It is, therefore, clear that even as per the Government of India, Ministry of Defence letter No. F/51/9/D(PP)/53 dated 21st June 1954, the position was the same as is mentioned in the Pension Regulations for the Army, 1961. Therefore, even if we apply the old Regulation 316 and 318, as modified by the Ministry of Defence, Government of India on 21st June, 1954, the petitioner's claim with regard to the grant of special pension has to be sustained because admittedly he has completed more than 10 years of service. Therefore, even if we apply the old Regulation 316 and 318, as modified by the Ministry of Defence, Government of India on 21st June, 1954, the petitioner's claim with regard to the grant of special pension has to be sustained because admittedly he has completed more than 10 years of service. The petitioner must be entitled to choose to his benefit when there are two equal alternatives before him and even if there is a discretion, such discretion has to be regulated on proper norms and guidelines and discretion under such norms so as to choose one of the two equal alternatives, cannot be exercised to the prejudice of the employee if the employee claims that he must get the special pension in absence of any defined norms and guidelines provided by the definition itself he can't be said that because we have chosen to pay gratuity, you can't claim special pension, when the regulations says gratuity or special pension. The interpretation which is more beneficial to the employee has to be followed. The petitioner's claim for grant of special pension cannot be denied or defeated by saying that he had been paid the gratuity because the gratuity is also an equal alternative to the grant of special pension. Thus, we hold that the petitioner was entitled for special pension. It is very clerk that an employee or army personal who have served the establishment for more than 10 years is entitled to the grant of special pension or gratuity under Regulations. 12. We, therefore, set aside the order passed by the learned Single Judge and allow this appeal as well as the writ petition and set aside the claim and direct the respondents to determine and decide the case of the petitioner for grant of special pension in accordance with the Regulations No. 164 and 167 of the Pension Regulations for the Army, 1961 and old Regulation No. 316 and 318, as modified by the Government of India, Ministry of Defence letter No. F/51/9/D(PP)/53 dated 21nd June, 1954 and the same be paid to him with due amount of arrears and continue to pay the same in future in accordance with law. However, it will be open for the respondents to adjust the amount which had already been paid to the appellant as gratuity and the due amount of the pension shall be given to the appellant after deducting the amount of gratuity i.e. Rs. 316/- and Annas 11 plus simple interest thereon till date, as per the rates prevailing from time to time from the date of his payment of gratuity. Since, the matter is already over and it is submitted that the appellant is a senior citizen, aged 79 years, the respondents shall decide the case of the appellant for pension expeditiously within three months from the date of submission of the certified copy of this order. The petitioner has prayed for interest. The prayer for interest is hereby declined as the petitioner himself had made the claim in 1986 after 40 year.Order accordingly. *******