Per J.P. Singh, J. 1. Union of India and its functionaries have filed this Original Side Appeal against judgment dated 30th of March, 2001 of a learned Single Judge of this Court allowing respondent, Joginder Lals O.W.P. No.860/98 and holding him entitled to pension and its arrears along with interest @ 9% P.A and to interest @ 16% P.A in case the pension was not paid within a period of three months. 2. Facts necessary for the disposal of this appeal may be stated thus: The Respondent, No. 9081152M, Ex-Sepoy, Joginder Lal was initially enrolled in Jammu and Kashmir Militia on 5th of October, 1974. Jammu and Kashmir Militia was thereafter re-designated as Jammu and Kashmir Light Infantry with effect from 27th of April, 1976 vide Government of India, Ministry of Defence, New Delhi letter No. 4(3)/75/776-C/D (GS-1) dated 27th of April, 1976. He was discharged from Jammu and Kashmir Light Infantry Service on 20th of August, 1979. The Discharge Certificate of the respondent carries the endorsement of his having remained in Four years Ten months and Fifteen days of colour service and Fifteen years of `Reserve Service. After remaining in `Reserve, after his initial discharge from Jammu and Kashmir Light Infantry, he appears to have been re-enrolled in Defence Security Corps, on 23rd of February, 1992 on completion of the term of his engagement. According to the appellants, the respondent had qualifying service of Thirteen years and Two Hundred Thirty Eight days to his credit in the two services i.e. one rendered in Jammu and Kashmir Light Infantry and the other in Defence Security Corps, whereas the respondent claims to have Fourteen years Ten months and Twenty Two days of his colour service in the two services. The appellants have not counted the period, the respondent had remained on unauthorised absence for Four Hundred and Fifty Four days. Claiming his entitlement to pension, on the plea of having served the army for more than 15 years, respondent filed Writ Petition OWP No.860/98 seeking issuance of a writ of mandamus against the respondents to award and disburse service pension to him with effect from 29th of February, 1992 along with interest @18% per annum. Claiming his entitlement to pension, on the plea of having served the army for more than 15 years, respondent filed Writ Petition OWP No.860/98 seeking issuance of a writ of mandamus against the respondents to award and disburse service pension to him with effect from 29th of February, 1992 along with interest @18% per annum. The appellants, filed objections to the writ petition denying respondents entitlement to pension on the plea that he had served only for Thirteen years and Two Hundred & Thirty Eight days in both spells of his service and was thus not entitled to pension because of the operation of Rule 132 of Pension Regulations which permitted grant of Pension only if the ex-serviceman had Fifteen years of qualifying service. 3. The appellants had submitted before the writ court that though the `Reserve period in respect of the respondent had been noted as Fifteen years yet he was to remain in `Reserve only for two years in terms of the Rules of the service. According to the appellants, the respondent was entitled to count only two years of `Reserve period for the purpose of qualifying service. 4. A Learned Single Judge of this Court, examined the contentions of the parties and vide his judgment impugned in the appeal, allowed the writ petition after recording a finding, which reads thus:-- "The facts and figures on the basis of which he seeks to sustain his claim are as under: Service rendered in J&K Militia/J&K Light Infantry 5th Oct 74 to 20th Aug 79 4 yrs, 10 months & 15 days Service rendered in Defence Security Corps 23rd Feb 82 to 29th Feb 9 10 yrs. 0 months and 6 days Total Service Rendered: 14 years 10 months & 21 days The respondents, however, want the period of absence to be deducted. The details of this are as under: Period of absence No. of days Regiment 12.04.78 to 29.06.78 79 days J&K LI 28.07.86 to 11.08.86 15 days DSC 07.07.87 to 30.06.88 360 days DSC Total 454 days The total period, therefore, comes to 454 days i.e. one year and eighty nine days. The petitioner submits that even if what is stated by the respondents is taken as correct, even then, he is entitled to get two years of his Reserve Service counted for the purpose of pensionary benefits. The petitioner submits that even if what is stated by the respondents is taken as correct, even then, he is entitled to get two years of his Reserve Service counted for the purpose of pensionary benefits. What is said in paragraph 5 of the petition is being reproduced below: "That from the above, it is crystal clear that the petitioner has served the Armed Forces of Union of India for a total period of 14 years 10 months and 22 days in colour service, besides serving the Nation for 15 years in Reserve..." This para makes reference of a notification annexure P.A. This was issued on 3rd April57. This is also being reproduced below: "..Individuals will be governed for service as well as disability and family pensionary awards by the same rules as are applicable to personnel of the regular army who enter service on or before the 1st June53. They will be allowed to count the following periods of their previous qualifying service for pension/gratuity; ......... i/ Service with the colours on regular engagement in the State forces to the extent it is allowed to count towards the completion of combined colour and reserve service in the Indian Army under Rule 212 RAI-in full; ii/ Former colour service in the Indian Army to the extent it is allowed to count towards the completion of combined colour and reserve service in the Indian Army under Rule 212 RAI-in full, subject to conditions of Rule 213, Pension Regulations Part II 1940)". In the reply furnished the specific assertion made by the petitioner that he having been kept in Reserve is entitled to get this period counted for the purpose of getting pension has not been commented at all. The main burden of the reply is that if the period of absence which is said to 454 days is taken note of, then the petitioner has only 13 years and 238 days of service to his credit. As indicated above, nothing has been said with regard to the service rendered by the petitioner as Reserve. Again, nothing has been said with regard to notification annexure P.A noticed above. The fact that the petitioner was kept in `Reserve is admitted in the opening para giving the brief facts of the case. As indicated above, nothing has been said with regard to the service rendered by the petitioner as Reserve. Again, nothing has been said with regard to notification annexure P.A noticed above. The fact that the petitioner was kept in `Reserve is admitted in the opening para giving the brief facts of the case. The last lines of this para read as under: "...His Reserve liability was ceased w.e.f. 20th Aug 81 on completion of two years in the Reserve". If above be the position, then the petitioner is right in his submission that this period of two years as `Reserve service is to be counted. To repeat, this aspect of the matter i.e. as to whether the petitioner is entitled to the benefit of two years of service as `Reserve has not been adverted to at all in the objections which were ordered to be treated as counter. After admitting that the petitioner did serve for two years in the `Reserve, the respondents have tried to get out of this situation by giving a logic that the argument of the petitioner that he has a colour service of 15 years in `Reserve is self-contradictory. What is said towards the end of paragraph 3 of the reply is being reproduced below: "...It is crystal clear that a person cannot serve 4 years 10 months 15 days with the Colours and 15 years is Reserve within a period from 05 October, 1974 to 20 August 1979. Documentary evidence are available with the respondent No. 2 which will be submitted before this Honble court when needed." The above stand as indicated above, does not meet the contention put across by the petitioner. All that has been stated is that his two years of service as Reserve which has been adverted to and admitted by the respondents if taken note of, then the total length of service would be 15 years and 238 days. So far as the period of 13 years and 238 days is concerned, this is not being disputed. If this be the position, then, even on the basis of the facts and figures given by the respondents and by taking note of annexure PA, reproduced above, the petitioner would be deemed to have completed 15 years of service. He has been wrongly denied pension. This petition as such is allowed. The petitioner would be paid the pension accordingly. If this be the position, then, even on the basis of the facts and figures given by the respondents and by taking note of annexure PA, reproduced above, the petitioner would be deemed to have completed 15 years of service. He has been wrongly denied pension. This petition as such is allowed. The petitioner would be paid the pension accordingly. Let this be done within a period of three months from the date, a copy of this order is made available to the respondents by the petitioner. Petitioner is also held entitled to interest. The rate of interest would be 9 percent. In case, the pension is not released within the period as indicated above, then the petitioner would become entitled to interest at the rate of 16 percent, and this enhanced component would be payable by the person on whose account the delay occurs." 5. Mr. Chandel, Learned Central Government Standing Counsel, appearing for the appellants while reiterating the submissions which had been urged on behalf of the appellants before the writ court, submitted that the respondent was not entitled to pension in view of the law laid down by the Honble Supreme Court of India in Kamal Singh Bhputayal Vs. Union of India and others reported as AIR 1988 SC 101. Mr. Navneet Dubey, learned counsel for the respondent, on the other hand relies on Army Instructions no. 5/S dated 3rd of April, 1957 to urge that service spent by the respondent in `Reserve was required to be counted, and, if so counted, would entitle the respondent to pension. 6. The short question which thus falls for consideration in this appeal is as to whether or not the period of an army personnel in `Reserve, counts as qualifying service for pension in terms of Regulation 132 of Pension Regulations. 7. Perusal of the judgment relied upon by learned counsel for appellants shows that it does not deal with the question which falls for consideration in this appeal. All that the judgment refers to, is that service rendered in Lok Sehayak Saniya cannot be counted towards qualifying service. 7. Perusal of the judgment relied upon by learned counsel for appellants shows that it does not deal with the question which falls for consideration in this appeal. All that the judgment refers to, is that service rendered in Lok Sehayak Saniya cannot be counted towards qualifying service. This judgment would not thus apply to the facts of the present case, additionally, because the appellants in this case have admitted both in the objections to the writ petition as also in the memo of appeal that the respondent had earned Thirteen years and two Hundred Thirty Eight days of qualifying service which included his service in Defence Security Corps which the respondent, after his initial discharge from Jammu and Kashmir Light Infantry had later joined. The only dispute which the appellants had raised to the entitlement of the respondent to pension was that his service in `Reserve was not required to be counted while applying Regulation 132 of Pension Regulations for the Army. In order to deal with Regulation 132 of Pension Regulations and para 12 of Army Instructions issued under No. 5/S dated 3rd of April, 1957 reference to the regulation and para 12 of Army Instructions may be necessary. These read thus: Regulation 132 of Pension Regulations. "132. Minimum Qualifying Service for Pension The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years". "Army instruction No.5/S New Delhi, the 3rd April, 1957 5/S Integration of J&K State Forces with the Indian Army-Terms and Conditions of Service for JCOs/OR/NCs (E). Para 12 of the Army Instructors No. 5/S dated 3rd of April, 1957: 12. PENSION AND GRATUITY: Individuals will be governed for service as well as disability and family pensionary awards by the same rules as are applicable to personnel of the regular army who enter service on or after the 1st June, 1953. They will be allowed to count the following period of their previous qualifying service for pension gratuity:-- (A) JCOs ... ... (i) ... ... (ii) ... ... (a) OR and NCS (E) who are enrolled on full regular engagement. They will be allowed to count the following period of their previous qualifying service for pension gratuity:-- (A) JCOs ... ... (i) ... ... (ii) ... ... (a) OR and NCS (E) who are enrolled on full regular engagement. (i) Service with the colours on regular engagement in the State Forces to the extent it is allowed to count towards the completion of combined colour and reserve service in the Indian Army under Rule 212 RAI-in full: (ii) Former colour service in the Indian Army to the extent it is allowed to count towards the completion of combined colour and reserve service in the Indian Army under Rule 212 RAI-in full, subject to conditions of Rule 213, Pension regulations, Part II (1940)." 8. Perusal of Para 12 of Army Instructions, indicates that `Reserve service for the purpose of Pension and Gratuity, both in colour as also in `Reserve service, in respect of those who had earlier served the State Forces, was required to be counted for the purpose of Pension. It was not disputed before us during the course of hearing and nor was any such plea raised before the writ court that the respondent had not earlier served the State Forces. No dispute having been raised regarding this aspect of the matter, there is nothing before us to exclude the application of Army Instructions No. 5/S dated 3rd of April, 1957 to the respondents claim for pension. So long as Army Instruction No. 5/S was in force and applied to the case of the respondent, service rendered in `Reserve by the respondent was required to be counted for determining his qualifying service for pension. Even if the appellants contention had to be accepted that the respondent had to remain in `Reserve service for two years, yet he would become entitled to pension because adding two years of `Reserve service to the admitted colour service of Thirteen years and Two Hundred Thirty Eight days would qualify the respondent for pension because counting of minimum two years period in `Reserve, would make his service more than Fifteen years thus satisfying the requirement of Regulation 132 Pension Regulations for the Army. 9. We therefore, do not find any error in the view taken by learned Single Judge of this Court in holding that the respondent had qualified himself to Pension in terms of Regulation 132 of the Pension Regulations. 10. 9. We therefore, do not find any error in the view taken by learned Single Judge of this Court in holding that the respondent had qualified himself to Pension in terms of Regulation 132 of the Pension Regulations. 10. The appellants contention that respondent was not entitled to pension is, therefore, rejected. 11. For all what has been said above, this appeal fails and is, accordingly, dismissed without any order as to costs.