U.O.I AND ANR. Vs. SURENDER SINGH PARMAR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 9389 of 2014, Judgment Date: Jan 20, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9389 OF 2014
UNION OF INDIA & ANR. ... APPELLANTS
VERSUS
SURENDER SINGH PARMAR ... RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
The appellants have preferred this appeal against orders dated 19th
November, 2013 and 5th March, 2014 passed by the Armed Forces Tribunal,
Principal Bench at New Delhi in O.A. No.401 of 2013 and R.A No.11 of 2014
with M.A No.120 of 2014 in O.A. No.401 of 2013 respectively. By the
impugned order dated 19th November, 2013, the Tribunal allowed the original
appeal filed by the respondent and held that the respondent rendered actual
service to the extent of 14 years by rounding off, which makes him eligible
for consideration of condonation of shortfall of pensionable service of one
year and in view of striking off of Rule 82(a) the respondent cannot be
denied the benefit of condonation of shortfall in service on the ground
that he took the discharge from service voluntarily on his own request.
Therefore, the Tribunal declared that the respondent shortfall in service
stands condoned in the facts of the case and directed the appellants to
calculate the total benefit of pension within a period of three months and
to pay the amount. By the impugned order dated 5th March, 2014, the
Tribunal dismissed the review application against its earlier order and
rejected oral plea for leave to appeal before this Court.
2. The factual matrix of the case is as follows:-
The respondent joined the Indian Navy on 12th August, 1971 and after
rendering 13 years, 10 months and 13 days service sought his retirement on
compassionate ground upon which he was released from service on 24th June,
1985. The minimum qualifying period for pensionable service is 15 years.
There is a provision in the Navy (Pension) Regulations 1964 for condonation
of shortfall in service, initially it was for six months and subsequently
the condonation was made permissible for one year. The respondent claimed
that he was entitled to the benefit under the said Regulations and the
Government of India Instructions dated 30th October, 1987. The appellant
denied the said benefit to the respondent vide order dated 14th August,
2001.
3. The respondent initially approached the High Court of Delhi by filing
Writ Petition (C) No.12507C of 2004. It was pointed out before the High
Court that the Division Bench of the Bombay High Court in Writ Petition
No.430 of 2005 titled Gurmukh Singh v. UOI vide judgment dated 22nd
November, 2006 declared the Navy (Pension) Regulation 82 (a) as null and
void being ultra vires to Article 14 of the Constitution of India.
Regulation 82(a) provided that the benefit of condonation of shortfall in
pensionable service shall not be applicable to the case in which a sailor
got the discharge from the service at his own request. It was also brought
to the notice of the High Court that similar finding was given by the Delhi
High Court in the case of the respondent in Writ Petition (C) No.12507 of
2004 vide order dated 6th November, 2007 and that the appellant-Union of
India was directed to consider the case of the respondent for the purpose
of condoning the deficiency in service and pass appropriate orders within
three months.
The appellant opposed the said prayer on the ground that the respondent has
not completed the requisite service of 14 years upon which only one can get
the benefit of condonation of shortfall of service upto one year.
Therefore, according to the appellant, the respondent was not eligible
candidate for condonation of the shortfall in pensionable service of one
year. Before the High Court the respondent contested the statement made by
the appellant that the respondent served for 13 years 8 months and 13 days
and brought to the notice of the High Court that actually he served 13
years 10 months and 13 days which was not disputed. The respondent claimed
benefit by rounding off the period of service in terms of Government of
India Instructions dated 30th October, 1987. The Division Bench of the
Delhi High Court after considering the rival submissions and taking note of
instructions dated 30th October, 1987 by order dated 6th November, 2007 set
aside the appellants earlier rejection order dated 14th August, 2001 and
directed the appellant to re-consider the case of respondent.
4. Subsequently, a contempt petition was filed by the respondent
alleging non-compliance of the said order. The contempt petition was
dismissed by the Division Bench of the Delhi High Court considering the
fact that appellants after the decision dated 6th November, 2007 passed the
order on 2nd July, 2008 rejecting the claim of the respondent with liberty
to challenge the order in accordance with law. In the said contempt
proceedings the appellants gave undertaking that decision in Gurmukh Singh
v. UOI would be made applicable in the case of the respondent. Thereafter,
the second order of rejection was challenged by the respondent before the
Tribunal wherein the impugned order was passed by the Tribunal.
5. The learned counsel appearing on behalf of the appellants submitted
that the Tribunal failed to consider that as per Regulation 82 which was
prevalent when the respondent was discharged, the deficiency in qualifying
service could have been condoned only upto six months and not one year. He
further contended that deficiency of one year as per new policy may be
granted but the respondent has not completed 14 years of actual qualifying
service in order to make him eligible for considering his case for
condonation of deficiency of service upto one year and hence he is not
entitled for the same. The learned counsel for the appellant further
contended that Regulation 82(a) of the Pension Regulations for Navy, 1964
cannot be held to be invalid and the law laid down by the High Court is
incorrect.
6. In the present case, the appellant has not challenged the validity of
judgment passed by the Bombay High Court wherein Regulation 82(a) was
declared as ultra vires. The aforesaid finding of the Bombay High Court was
also accepted by the Delhi High Court in the case of the respondent. In
absence of any challenge before this Court, we are not inclined to decide
the question of validity of Regulation 82(a) which has already been
declared ultra vires and violative of Article 14 of the Constitution of
India.
It is not in dispute that the respondent has completed 13 years, 10 months
and 13 days of service under the appellant. In view of declaration of
Regulation 82(a) ultra vires, the prayer of the respondent for considering
his case for condonation cannot be rejected on the ground that he
voluntarily sought permission to leave the service. The aforesaid
submission was also accepted by the High Court in the earlier writ petition
preferred by the respondent.
7. The note below paragraph 5 of the Government of India, Ministry of
Defence instructions dated 30th October, 1987 at clause 5 provides that in
calculating the length of qualifying service fraction of a year equal to
three months and above but less than six months shall be treated as a
completed one half year for reckoning qualifying service. The said
provision reads as follows:-
"5. Qualifying service.
(a)xx xx xx
(b)xx xx xx
Notes:
(1) to (4) xx xx xx
(5)In calculating the length of qualifying service fraction of a year equal
to three months and above but less than six months shall be treated as a
completed one half year and reckoned as qualifying service."
8. In view of the aforesaid provisions the respondent is entitled to
claim total period of service as 14 years for the purpose of calculation of
pension. By Government of India, Ministry of Defence order dated 14th
August, 2001 administrative power has been delegated to the competent
authority under clause (a)(v) the competent authority has been empowered to
condone shortfall in qualifying service for grant of pension beyond six
months and upto 12 months. The said provision reads as follows:-
"(a)(v)Condonation of shortfall in Qualifying Service for grant of
pension in respect of PBOR beyond six months and upto 12 months."
9. In view of the aforesaid provision, the respondent is also entitled
to claim for condonation of shortfall in qualifying service for grant of
pension beyond six months and upto 12 months. If the aforesaid power has
not been exercised by the competent authority in proper case then it was
within the jurisdiction of the High Court or Tribunal to pass appropriate
order directing the authority to condone the shortfall and to grant
pension to the eligible person, which has been done in the present case and
we find no ground to interfere with the substantive finding of the
Tribunal. However as we find that the respondent was allowed to retire
from service on 24th June, 1985 when the instruction dated 14th August,
2001 was not in existence, we hold that the respondent is entitled for such
benefit from such date on which the said instruction came into effect. The
Tribunal failed to notice the aforesaid fact but rightly declared that the
respondent's shortfall in service stands condoned. In the facts of the
case, we are of the view that it should have been made clear that the
respondent shall be entitled to benefit w.e.f. 14th August, 2001 and not
prior to the said date. The order passed by the Tribunal stands modified
to the extent above. The appeal stands disposed of with aforesaid
observations.
..............................................................................
...J.
(SUDHANSU JYOTI MUKHOPADHAYA)
..............................................................................
...J.
(N.V. RAMANA)
NEW DELHI,
JANUARY 20, 2015.
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