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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.

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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

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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

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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

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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

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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:-

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“(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.

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………………………………………………………………………J.               (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………………………………J.

(N.V. RAMANA)    

NEW DELHI,

JANUARY 20, 2015.