JUDGMENT 1. . - Heard learned counsel for the parties. 2. This special appeal is directed against the judgment and order dated 16.7.1996 passed by the learned Single Judge whereby the writ petition was dismissed. 3. The petitioner herein came with the case that he had been enrolled in the Indian Army on 23.6.1952 as Syce and name of his unit was changed to 61 Cavalary, his number was 1096712. He was discharged from service w.e.f. 26.6.1969 after completing 17 years and 3 days service i.e. more than 15 years, he was entitled to special pension. In August 1987, he submitted the representation but neither any reply was given nor the pension was granted . He had also submitted to the Chief of the Army Staff and then was informed vide order dated 24.11.1987 that the representation had been forwarded to the Record Officer, A.C. Record who is being instructed to give appropriate reply. The Record Officer vide his letter dated 30.11.1987 informed the petitioner that whereas he had completed 20 years qualifying service as Non- Combatants (enrolled), he cannot be granted the pension. The petitioner submitted yet another representation that he did not seek retirement, he was physically fit, possessed exemplary character and was looking to serve in the army that he was retired in 1969 and therefore, he cannot be denied the pension. The petitioner informed vide letter dated 9.2.1988 that since he had completed 17 years of qualifying service, he was entitled for pension. 4. Aggrieved from the denial of the pension, he preferred the present petition on 13.3.1989 before this Court with the prayer that the orders Annexures 3 and 5 denying the pension be set aside and it may be declared that the petitioner be granted pension because he had completed 15 years of qualifying service and a direction was sought against the respondents to pay him the arrears of pension from the date of his retirement with interest. In this writ petition the show cause notices were issued on 25.4.1989 by Division Bench as per the rules regarding listing the writ petition before the Divisional Bench prevailing at that time. Thereafter with the change of rules with regard to the procedure of the listing the cases when the service was completed, the matter came up before the learned Single Judge on 15.1.1995. Thereafter with the change of rules with regard to the procedure of the listing the cases when the service was completed, the matter came up before the learned Single Judge on 15.1.1995. An objection was raised on behalf of the respondents that this writ petition is not maintainable for want of jurisdiction because the petitioner's Head Office was at Delhi and Bombay and the petitioner had retired from Ahmad Nagar. To substantiate this objection, reliance was placed on the judgment of this Court passed in SBCWP No. 147/1994 decided on 26.5.1994. However, this decision dated 25.5.1994 had been made a subject matter of appeal which had been admitted by Division Bench of this Court. Whereas it was also submitted before the learned Single Judge that the matter may be listed for further arguments only after disposal of the special appeal which had been pending against the decision dated 26.5.1994 rendered in SBCWP no. 147/94. The objection of jurisdiction was decided in D.B. Civil Special Appeal No. 565/94 and on that basis the ground of jurisdiction was decided in favour of the petitioner as recorded in the order-sheet dated 6.11.1995 passed by the learned Single Judge and therefore, this matter was directed to be listed before the regular Bench hearing service writs. 5. It appears from the record that the reply dated 21.11.1994 had been filed on 22.11.1994 on behalf of the respondents in this matter to which a rejoinder dated 2.1.1954 had been filed on behalf of the petitioner. It further appears that the writ petition was sought to be amended and the amended writ petition was also filed by the petitioner and the prayer as was made in the writ petition is as under: i. Issue writ of mandamus or any other appropriate writ, order or directions in the nature thereof thereby declaring action of the non-petitioners in not granting special pension to the petitioner to be wholly illegal, arbitrary, unreasonable and unconstitutional; ii. Issue an appropriate writ, order or directions thereby directing the non- petitioners to grant special pension to the petitioner w.e.f. 27th June, 1969 onwards and further this Hon'ble Court be pleased to declared the petitioner entitled for special pension forms that date with all consequential benefits; iii. Issue an appropriate writ, order or directions thereby directing the non- petitioners to grant special pension to the petitioner w.e.f. 27th June, 1969 onwards and further this Hon'ble Court be pleased to declared the petitioner entitled for special pension forms that date with all consequential benefits; iii. By an appropriate writ, order or directions the non- petitioners be directed to pay entire arrears of special pension with all consequential benefits to the petitioner w.e.f. 27th June, 1969 and further the non-petitioners be directed to pay interest on the amount of arrears w.e.f. 27th June, 1969 @ 24% p.a.' iv. Issue an appropriate writ, order or directions thereby directing the non- petitioners to pay an exemplary cost of Rs. 25,000/- to the petitioner for delaying in the matter of payment of special pension; v. Issue such other writ, order of directions as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case; vi. Cost of the writ petition be awarded to humble petitioner; 6. Thereafter, the petition was decided on 16.7.1996 and the same was dismissed. 7. Aggrieved from the judgment and order dated 16.7.1996, the present special appeal was filed on 13.8.1996. On 20.12.1996, the notice was issued to the respondents by the Court and the reply to the special appeal was filed by the respondents on 4.7.1997 and thereafter it was on 16.6.1998 that the appeal was admitted. 8. Briefly stated the facts which are not in dispute in this case are as under: (i). The present appellant i.e. original petitioner had been enrolled as Syce No. 10965712 as Non-Combatant on 23.6.1952 in Jodhpur Kachawa Horse in contractual period of 18 months. (ii). Thereafter, the petitioner was posted to New Horse Cavalary (61 Cavalary) w.e.f. 20.10.1953. (iii).The 61 Cavalary was re-organised in the year 1968 and its strength was revised vide Army Headquarter's letter dated 30.5.1968. (iv). Enrolled and adoption of war establishments of 61 Cavalary, the category of Syce i.e. Non-Combatant Syce enrolled (N.C.S.E.) was abolished and Syce (NC unenrolled) were authorised and thus the category of Syce i.e. NCSE was rendered surplus. (v). (iii).The 61 Cavalary was re-organised in the year 1968 and its strength was revised vide Army Headquarter's letter dated 30.5.1968. (iv). Enrolled and adoption of war establishments of 61 Cavalary, the category of Syce i.e. Non-Combatant Syce enrolled (N.C.S.E.) was abolished and Syce (NC unenrolled) were authorised and thus the category of Syce i.e. NCSE was rendered surplus. (v). The instruction were issued by the Headquarter for disposal of the surplus Syce vide letter dated 5.2.1969 and order dated -24.4.1968 regarding re- organisation of Horsed Cavalary Regiment and letter dated 6.2.1986 disposal of surplus Syce (NCSE) and following decisions were taken: (a) Such of the NCSDE Syces with below 5 years service who will complete 5 years upto 1 Jan. 72 will be retained in service to enable them to earn gratuity: Other who will not complete 5 years service by 1 Jan. 72 will be discharged as and when they complete their contractual period of engagement of 18 months. (b) NCSE Syces with over 5 years service, except those covered under (c) below, will be discharged from service. (c) NCSE Syces who have completed or will complete 20 years service by 1 Jan. 72 will continue to be retained in service as such till further orders. A case is being separately progressed by this HQ to make them eligible for the grant of a service pension. 9. The petitioner was a Non-Combatant enrolled Syce having 17 years of service to his credit i.e. more than 15 years service but he did not fall in the category of those who had completed 20 years because he could not have completed 20 years service before 1 Jan. 72. He was treated as a NCSE Syce under category (b) and accordingly he was discharged on 26.6.1969. The certificate of service makes it clear that the number allotted to the appellant was 1096712, he was in the 61 Cavalary Unit, his date of enrolment was 23.6.1952 and date of discharge was 26.6.1969. His character was assessed to be exemplary and he was also given 'Raksha Medal' in 1965 and from 1.5.1965 to 14.6.1965 and 4.9.1965 to 119.2.1966, he has service to his credit. His character was assessed to be exemplary and he was also given 'Raksha Medal' in 1965 and from 1.5.1965 to 14.6.1965 and 4.9.1965 to 119.2.1966, he has service to his credit. This certificate of service also shows that-the petitioner was discharged by the order of the Commandant of 61 cavalary in consequence of fulfilling his term of engagement under Section 4 of the Table annexed to Army Rule 13/AA after serving for 17 years. 10. The learned Single Judge has found from the record as well as the reply that the petitioner was unenrolled on completion of 18 months period for which he was appointed initially and has then concluded that the petitioner had not been able to establish that he was enrolled at the time of discharge and therefore, he had no claim of pension under Regulation 164. 11. On the basis of consideration of the documents placed on record and the admitted position between the parties, it is clearly established that the petitioner was enrolled as Non- Combatant Syce on 23.6.1952 when he was appointed. There is no order including the service certificate to show that he was unrenrolled at the time when he completed 18 months of initial period of constructural service. The service certificate shows that the appointment was given to him for containing even before the expiry of the 18 months inasmuch as in the reply to the writ petition as well as in the special appeal , the respondents themselves stated that he was initially enrolled on 23.6.1952 and thereafter was posted to New Horse cavalary i.e. 61 cavalary on 23.10.1953. Thus, there is no basis to arrive at the conclusion that he was unenrolled at the time of discharge. He continued to be a non-combatant Syce enrolled right from the date of initial appointment i.e. 23.6.1952 and the service certificate shows that he was enrolled on 23.6.1952 and the service certificate shows that he was enrolled on 23.6.1952 and was discharged on 26.6.1969 and thus had completed 17 years of qualifying service. 12. The question arises that once he had completed 17 years of service whether he was entitled to any pension in terms of Regulation 164 and 167 or not, these regulations are reproduced as under: "164. 12. The question arises that once he had completed 17 years of service whether he was entitled to any pension in terms of Regulation 164 and 167 or not, these regulations are reproduced as under: "164. Special pension or gratuity my 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 result 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 years 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' than 10 years pay for each completed years of qualifying service. Less than 5 years Gratuity equal to 3 months' pay. Non-Combatants (Enrolled) 20 years or more Pension at the rates 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. 10 years or more but Gratuity at the scale of 1⅓ months' less than 15 years pay for each completed year of qualifying Less than 5 years service. Gratuity equal to 3 months' pay. For detailed reference to these regulations see the decision in Sultlan Singh's case DBSAW No. 1251/96 decided on 25.1.2002. 13. In terms of these regulations, the petitioner was certainly not entitled for service pension because he did not complete 20 years of service and he was in the category of non- combatant but he was certainly entitled to special pension because he had completed more than 15 years of service. Therefore, his claim for special pension can't be denied by saying that sum of Rs. 1105/- for 17 years of service had been paid to him as gratuity. 14. The question of maintainability of this petition had already been decided by the Division Bench as recorded in the order-sheet dated 6.11.1995. Therefore, his claim for special pension can't be denied by saying that sum of Rs. 1105/- for 17 years of service had been paid to him as gratuity. 14. The question of maintainability of this petition had already been decided by the Division Bench as recorded in the order-sheet dated 6.11.1995. So far as the objection of delay is concerned, this Court has already taken the view in more than one cases which have been dealt with in detail in the case of Sultan Singh v. Union of India & Ors. in D.B. Civil Special Appeal (Writ) No. 1251/1996 decided on 25.1.2002 that delay is not fatal to the claim of the pension in cases of this nature and even otherwise, the delay has been explained nor the claim of the petitioner was rejected by the department on the ground of delay. It was rejected on the ground that gratuity had been paid to him and therefore, he was not entitled to pension. The cases in which the gratuity its to be paid and the cases in which the special pension is to be paid have been separately classified . The petitioner's case is squarely covered by the category of entitlement for special pension. 15. In our opinion, the view taken by the learned Single Judge is based on a factually correct premise which is contrary to the record and therefore, cannot be sustained. We have no hesitation in holding that in terms of the regulations have been concluded hereinabvoe, the petitioner's entitlement for special pension is fully established and the special pension could not be denied to him by saying that gratuity had been paid to him. Even if, the gratuity is provided as an alternative, that alternative should be enforced which is favourable to the employee and therefore, there is no question of denying him the special pension on the pretext that the gratuity had paid to him more particularly when the regulation itself establishes the petitioner's entitlement for special pension as an enrolled non-combatant Syce and when it is also clearly established that on re-organisation of 61 cavalary, the category of Syce non-combatant enrolled was rendered surplus. 16. The up shot of the discussion is that this appeal succeeds. 16. The up shot of the discussion is that this appeal succeeds. The impugned order dated 16 July, 1996 passed by the learned single Judge is hereby set aside and the respondents are directed to pay the due amount of, arrears of special pension to the petitioner right from the date from his discharge upto date and continue to pay the same in future. 17. In the facts and circumstances of the present case, we further direct that the petitioner shall be entitled to interest @ 12% on arrears from the date of filing of the writ petition i.e. 13.3.1989 till the arrears are paid to him of course after deducting the amount of gratuity which had been paid to him plus the interest thereon as per the prevailing rates of the Scheduled Banks and Nationalised Banks from time to time. The directions as aforesaid shall be carried out within a period of 3 months from the date the certified copy is served upon the respondents.Appeal allowed. *******