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.