U.O.I Vs SURENDER SINGH PARMAR
Bench: SUDHANSU JYOTI MUKHOPADHAYA,N.V. RAMANA
Case number: C.A. No.-009389-009389 / 2014
Diary number: 27163 / 2014
Advocates: B. V. BALARAM DAS Vs
Page 1
1
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.
Page 2
2
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
Page 3
3
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
Page 4
4
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
Page 5
5
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
Page 6
6
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:-
Page 7
7
“(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.
Page 8
8
………………………………………………………………………J. (SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………………………………J.
(N.V. RAMANA)
NEW DELHI,
JANUARY 20, 2015.