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2008 DIGILAW 641 (DEL)

EX. SEPOY PREM SINGH v. UOI

2008-07-04

S.N.AGGARWAL, T.S.THAKUR

body2008
T.S THAKUR, J. 1. The short question that falls for consideration in all these writ petitions is whether the petitioners are entitled to claim pension on a pro-rata basis even when they do not qualify for grant of service pension under the Rules regulating their service conditions. The question is no longer res integra in the light of four division bench decisions rendered by this Court holding that the Pension Regulations for the Army do not envisage grant of pro-rata pension to those who have not rendered qualifying years of service. Before we refer to the said decisions we may extract Regulation 132 of the Pension Regulations for the Army for ready reference: “132. The Minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.” 2. A plain reading of the above provision would leave no manner of doubt that pension rules applicable to those serving in the Indian Army and governed by the aforementioned Regulations can claim service pension as a matter of right only if they have rendered qualifying service of 15 years in that Force. Neither Regulation 132 extracted above nor any other provisions contained in the Regulations for the Army envisage or provide for grant of pro-rata pension to those who have not rendered the qualifying years of service. Learned counsel for the petitioners were also unable to refer to us any such provision in support of their contention that pro-rata pension was legally admissible to the petitioners or any one of them. That appears to be the position even according to the decisions of this Court to which we may be briefly referred at the stage. In Mahinder Singh(Ex-Sep.) Vs. Union of India & Ors. 2001 VI AD (Delhi) 774 Dr.Mukandakam Sharma,J, as his lordship then was, had an occasion to examine whether the Pension Regulations for the Army, 1961 envisage grant of pro-rata pension. Repelling the contention that pro-rata pension could be granted to the petitioner by reference to Rule 49 of CCS (Pension) Rules and de hors the pension regulations applicable to the Army, the Court observed: “5. The decisions on which the counsel appearing for the petitioners relied during the course of his arguments based on interpretation of the provisions of rule 49 of CCS (Pension) Rules. The decisions on which the counsel appearing for the petitioners relied during the course of his arguments based on interpretation of the provisions of rule 49 of CCS (Pension) Rules. Although the counsel for the petitioner submitted that he is also governed by the provisions of the said rules, I am unable to accept the said contention for the fact that there is a specific provision in the Pension Regulations applicable to the Army personnel that the minimum service which qualifies for service pension would be 15 years in the case of Army personnel. The petitioner is governed by the said provisions of para 132 of Pension Regulations for the Army, 1961, Part-I, and therefore, the said provision is also applicable in his case. The pension of the Army personnel is required to be paid as per Pension Regulations for the Army for making payment of any pro rata pension for the Army personnel. Reliance on the decisions interpreting the provisions of Rule 49 of the CCS (Pension) Rules is misplaced, for the said provision cannot be made applicable to the facts and circumstances of the present case” .3. A similar issue arose before a Division Bench of this Court in Ram Singh Yadav Vs. Union of India & Anr. 116 (2005) DLT 486 (DB). Relying upon the decision in Mahinder Singhs case (supra) the Court declared that the Pension Regulations for the Army do not provide for grant of pro-rata pension to those who do not have qualifying service to their credit. The Court observed: .“8. We have gone through the Pension Regulations for the Army. In the said regulation we could not find any provision which provides for grant of pro-rata pension. Since the petitioner is governed by the Pension Regulation for the Army and not by the CS (Pension) Rules, reliance of the petitioner on the CCS (Pension) Rules in support of his contention is misplaced. Reliance of the petitioner on the Ministry of defense letter dated February 9, 1987 for grant of pro-rata pension is also misconceived s the said letter deals with grant of pro-rata pensioner benefits to the commissioned officers of the defense services on permanent absorption in public sector enterprises. The petitioner, who was enrolled as a sepoy in the Army, was not a commissioned officer in the Army nor he could be considered as permanently absorbed in a public sector undertaking. The petitioner, who was enrolled as a sepoy in the Army, was not a commissioned officer in the Army nor he could be considered as permanently absorbed in a public sector undertaking. Therefore, the said circular is of no assistance to the petitioner. Reliance of the petitioner on the circular of the Ministry of defense dated April 29, 1997 is again misplaced and misconceived as the said circular deals with grant of pro-rata pension to ex-airmen who were absorbed in public sector undertakings before completing 10 years of service in Government of India. In the said circular it s clearly mentioned that there is no provision in the Air Force Pension Regulation for grant of pro-rata pensionary benefits to ex-airmen on their permanent absorption in the public sector undertakings in case of persons who had not completed the minimum qualifying service of 15 years required to earn military pension.” 4. To the same effect are the decisions of this Court in Sushila Vs. UOI & Ors. W.P.(C)287/2005 disposed of on 20th February, 2007 and Ex. Maj. A. Sivakaumaran Vs. UOI & Ors. W.P.(C)5250/2003 disposed of on 20th March, 2007. In both these cases also similar contentions urged on behalf of the petitioners for payment of pro-rata pension to those who did not have the qualifying years of service were rejected and the writ petitions dismissed. In the light of all these decisions, we see no room for any further debate on the question whether pro-rata pension was admissible to those who did not have the qualifying years of service. .5. Learned counsel for the petitioners, however, argued that the provisions of the Pension Regulations must be deemed to have undergone a change in the light of the recommendations of the Fourth Pay Commission which provided for continuance of the existing system of paying lumpsum gratuity on service below 10 years and monthly pension for qualifying service of 10 years and more. These recommendations having been accepted by the Government, the petitioners were governed by the same in preference to Regulation 132 (supra). Support, in this regard was drawn from a Resolution/Memorandum dated 18th April, 2007 issued by the Ministry of Personnel and Public Grievances and the annexure to the same which inter alia states that recommendations made by the Fourth Pay Commission regarding pension structures for pensioners had been accepted. We regret our inability to accept that submisison also. Support, in this regard was drawn from a Resolution/Memorandum dated 18th April, 2007 issued by the Ministry of Personnel and Public Grievances and the annexure to the same which inter alia states that recommendations made by the Fourth Pay Commission regarding pension structures for pensioners had been accepted. We regret our inability to accept that submisison also. We say so because even this part of the controversy stands concluded by the decision of this Court in cases of Sushila and Ex. Maj. A. Sivakumaran (Supra). A similar contention as is urged before us was noticed in the said two cases and specifically rejected. Dealing with the argument that the recommendations had the effect of amending Regulation 132, this Court had in Sushilas Case (Supra) observed: “The argument that the Regulation 132 (supra) stands amended because of the recommendations of the Pay Commission and acceptance of the said recommendations by the Government of India in terms of the resolution relied upon by Mr. Dhull needs to be mentioned only to be rejected. The argument it appears proceeds on a total misunderstanding of the legal implication of the recommendations and the resolution accepting the same. A careful reading of para 2 of the annexure to the government resolution extracted earlier would show that the government have accepted the recommendations made by the Pay Commission to continue the existing system of paying a lumpsum gratuity for service below 10 years and monthly pension for qualifying service of 10 years and more. What is important is that the recommendation made by the Pay Commission and its acceptance apply only two cases in which the existing rules regulating grant of service pension to the employees provide for payment of pension upon completion of 10 years of qualifying service. The recommendations do not go further to suggest that pension must become payable on completion of 10 years of service even in cases where the existing service rules regulating the grant of such benefit did not provide for such payment. Mr. Dhull was unable to point out any provision in the pension regulations or elsewhere according to which pension may have been paid to any ex-army personnel upon his completing 10 years of service. Indeed there could be no provision in the light of the specific provisions contained in the Regulation 132 extracted earlier stipulating 15 years minimum qualifying service for purposes of pension. Indeed there could be no provision in the light of the specific provisions contained in the Regulation 132 extracted earlier stipulating 15 years minimum qualifying service for purposes of pension. In the absence of any existing system of payment of service pension upon completion of 10 years of service prevalent in the Indian Army acceptance of the Pay Commission recommendations by the government would be of no assistance to the petitioner.” 6. The above, in our view, provides a complete answer to the submissions made on behalf of the petitioners that pro-rata pension becomes admissible by reason of the acceptance of the recommendations of the Fourth Pay Commission. The recommendations, it is noteworthy, simply envisage continuance of the existing system of payment of pension wherever such system is prevalent. The do not introduce a new system nor do the recommendations purport to reduce the qualifying service from 15 years to 10 years. So long as Regulation 132 of the Pension Regulations for the Army continues on the Statute Book and so long as the same has not been modified or amended to reduce the qualifying period from 15 years to 10 years or to provide for pro-rata pension, the petitioners cannot stake any claim for such payment. 7. In the result, these petitions fail and are hereby dismissed but in the circumstances without any orders as to costs.