1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8828 OF 2005 DIST.: SANGLI Mahadev Ramchandra Shinde ...Petitioner Versus Union of India & Ors. ...Respondents. Mr. Shrishail Sakhare for the Petitioner Mr. Y.S. Bhate with Mr. N.R Prajapati for the Respondents. CORAM: B ILAL NAZKI and J.H. BHATIA, JJ. DATE: OCTOBER 13, 2008 P.C.:- This petition has been filed, seeking a direction from this Court to the respondents that the petitioner should be paid his pension and gratuity with effect from 28th May, 1986 along with interest. 2. According to the petitioner, he joined the Indian Army on 17th January, 1970, and was dismissed on 28th May, 1986, after service of more than 16 years. He was not paid pensionary benefits. He made representations to the respondents, which were rejected. 2 3. The case of the petitioner, in short, is that the pension cannot be withheld if the court martial, which held the petitioner guilty of desertion, had not ordered withholding the pension. During court martial, he was sentenced to 28 days' rigorous imprisonment in civil prison by the Officer Commanding. The petitioner was also dismissed from service, and stoppage of pay and allowance was also ordered. 4. The learned counsel for the petitioner has drawn our attention to Regulation 16 of the Pension Regulations for the Army, 1961 – Part I. This Regulation has been interpreted by the Supreme Court, and, therefore, the petitioner relies on the judgment of the Supreme Court in Major G.S. Sodhi v. Union of India, (1991) 2 SCC 371. The Supreme Court, while analysing this Regulation 16, referred to an earlier judgment of the Supreme Court, and quoted with approval the following passage from the earlier judgment in Lt. Col. (T.S.) Harbans Singh Sandhu v. Union of India in Writ Petition No. 553 of 1972 decided on November 22, 1972:- “So he filed the present writ petition to compel the government to pay him what is due by way of gratuity and pension. This was his property and could not be taken away except by due process of law. The only provision of law pointed out to us by counsel on either side is Section 16(a) of the Pension Regulations, 1961 (for 3 the Army). It is found from the records that ther is no order passed under the said regulation nor is it the case of the Union of India in their return that any such order depriving the petitioner wholly or partly of his pension or gratuity has been made by the President. The inevitable consequence is that he is entitled to be paid the entire pension and gratuity under the Rules. We direct the respondent to pay the said sum within three months from today.” 5. If Regulation 16(a) were applicable to the petitioner, then there was no question that the proposition put forth by the learned counsel for the petitioner would apply to the case of the petitioner. But Regulation 16 is part of Chapter II of the Regulations and Regulation 14, which is the first regulation in this chapter lays down that the regulations in Chapter II shall apply to all permanent, regular commissioned officers, including those of the Military Nursing Service. 6. The petitioner, admittedly, was not a regular commissioned officer. His case falls under Chapter III, and the regulations in this chapter apply to all junior commissioned officers, other ranks and non-combatants (enrolled), and in terms of Regulation 113, an individual, who was dismissed under the provisions of the Army Act, was ineligible for pension or gratuity in respect of all previous service. Since Regulation 113 applies to the petitioner, and not Regulation 16, 4 we do not find merit in this petition. It is accordingly dismissed. Rule is discharged. BILAL NAZKI, J. J.H. BHATIA, J.