IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 WA.No. 1487 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.21028/2004 Dated 31/05/2006 .................... APPELLANT(S): RESPONDENTS. --------------------------------------------- 1. THE SECRETARY TO GOVERNMENT, GOVERNMENT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI. 2. THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION), ALLAHABAD. U.P. 3. THE CHIEF OF NAVAL STAFF, NAVAL HEAD QUARTERS, NEW DELHI. BY ADV. SRI.TPM.IBRAHIM KHAN,SENIOR PANEL COUNS RESPONDENT(S)/PETITIONER: -------------------------------------------- K.G.RADHAKRISHNAN NAIR, S/O.LATE SRI.C.P.GOVINDA PILLAI EX-SEAMAN CLASS I, NO.67300, (DISCHARGE FROM INDIAN NAVY), RESIDING AT USHUS, KUNNAMTHANAM P.O. MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. ADV. SRI.M.V.THAMBAN FOR R THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON 09/03/2011 DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1487 OF 2006 ================ Dated this the 9th day of March, 2011 J U D G M E N T Antony Dominic, J. Respondents in WP(C) No.21028/2004 are the appellants. The writ petition was filed by the respondent herein mainly praying for a declaration that the reserve liability period shall be treated as pensionable service and on that basis to direct the appellants to sanction pensionary benefits to him for a total service of 15 years. 2. The respondent joined Indian Navy as a Seaman on 2/7/1960. On 1/7/1970, he was discharged from service with reserve liability. Thereafter, he was drafted to Indian Fleet Reserve w.e.f. 2/7/1970 and was discharged on 10/6/1975. On the ground that the respondent did not have qualifying service as required under the Pension Regulation, 1964, pension was not granted to him. It is complaining of the above, the writ petition was filed by the respondent. In the judgment under appeal, having regard to the case of the respondent that he had WA No. 1487/2006 : 2 : qualifying service in case the reservist period is also counted and the little shortage is condoned, which according to him, has been done in the case of several others, a learned Single Judge of this Court directed the first appellant to consider Ext.P1 representation made by him with notice to the petitioner/respondent and to pass appropriate orders thereon. Proceeding further, the learned Judge clarified that pension shall not be denied to the respondent for the only reason that the reservist period cannot be counted for the purpose of pension. It is mainly aggrieved by the aforesaid clarification in the judgment, this writ appeal is filed. 3. The contention raised by the appellants is that under Pension Regulations, 1964, minimum qualifying service for pension is 15 years and for reservist pension, the minimum qualifying service is 10 years. It is stated that the respondent does not satisfy either of these conditions, and that, therefore, the learned Judge was in error in directing that the pension shall not be denied for the reason that reservist period cannot be counted for the purpose of pension. WA No. 1487/2006 : 3 : 4. We have heard the learned Assistant Solicitor General of India and also the learned counsel appearing for the respondent and considered the submissions made. It is an admitted fact that the respondent joined Indian Navy as Seaman on 2/7/1960 and was discharged on 1/7/1970 with reserve liability. It is also admitted that thereafter he was drafted to Indian Fleet Service w.e.f. 2/7/1970 where he served till his discharge on 10/6/1975. Thus, both as Seaman and as a Reservist, the respondent has served for total period of almost 15 years. 5. The rule which governs pension for Naval Service and Reservist Service are those contained in Pension Regulation, 1964. Rule 78 provides for the minimum qualifying service for pension. It lays down that, unless otherwise provided, the minimum service which qualifies for service pension is 15 years. Even the respondent has no case that he satisfied this condition for service pension. 6. However, provision has been made for reservist pension and gratuity in Rule 92. Clause 1 of Rule 92 provides that WA No. 1487/2006 : 4 : a reservist who is not in receipt of service pension may be granted, on completion of the prescribed naval and reserve qualifying service of 10 years each, a reservist pension or gratuity in lieu of pension at the rate as indicated therein. Sub Rule 2 provides that a reservist who is not in receipt of service pension and whose qualifying service is less than the period of engagement, but not less than 15 years may, on completion of the period of engagement or on earlier discharge from the reserve otherwise than at his own request, be granted a reservist pension or gratuity in lieu of pension at the rates indicated in the rule. 7. Although it is the case of the appellants that the discharge of the respondent on 10/6/75 from reservist service was at his own request, it is the specific contention of the respondent that such discharge was not at his request. In support of his contention, counsel for the respondent relied on the discharge certificate. It is true that even if his naval service and reservist service is added together, there is still a shortage of about a month to make it 15 years. Here also, it is the specific case of the WA No. 1487/2006 : 5 : respondent that in many such cases, such shortages have been condoned and this averment is not denied in the pleadings. If that be the situation, since the respondent is not a recipient of service pension and his total naval service and reservist service is treated as 15 years, the case of the respondent is one to which the provisions of Rule 92 (2) of the Pension Regulations are applicable. It was on this basis that the learned Judge has directed that the pension to the respondent shall not be denied for the only reason that reservist period cannot be counted for the purpose of pension. 8. Even apart from the technicalities as to whether the discharge of the respondent from reservist service was at his request or otherwise, it is an admitted fact that the respondent has spent almost 15 prime years of life in the service of the navy as Seaman and as a Reservist in the Indian Fleet Reserve. It is unfortunate that, in spite of all this, the authorities are taking refuge on the technical plea that his reservist service cannot be added to the naval service to deny the legitimate claim of the respondent for pension. It was considering these facts also that WA No. 1487/2006 : 6 : the learned Judge has directed that pension shall not be denied to the respondent on the ground that reservist service cannot be counted for the purpose of pension. 9. We see absolutely no reason for interfering with the said direction issued by the learned Single Judge. Writ Appeal is only to be dismissed and we do so. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp