HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.58 of 2006 The Union of India through the Secretary, Ministry of Home Affairs, New Delhi and two others ...Appellants. Versus Padma Dutt Pant S/o Sachi Ram Pant R/o Village Fatehpur, Haldwani District-Nainital …Respondent Mr Vikas Pandey, learned Standing Counsel for the appellants. Mr. N.S. Negi, learned counsel for the respondent. Dated : 25th November, 2008 Coram:- Hon’ble V.K. Gupta, C.J. Hon’ble V.K. Bist, J. Hon’ble V.K. Bist, J (Oral) Present Special Appeal has been filed against the judgment passed by Hon’ble Single Judge in Writ Petition No.1429 of 2002 (S/B) by which discharge order dated 26.12.1994 passed by appellant no.2 was quashed and appellant no.2 was directed to pass orders with regard the payment of disability pension to the respondent from the date of his discharge i.e. 31.03.1995 and also for making payment of arrears of pension to the respondent through his next friend (wife) within a period of one month. Brief facts of the case are that the respondent in the present appeal was enrolled as Rifleman in Assam 2 Rifles on 25.04.1978 and was subsequently promoted on the post of Naik. On 08.08.1994 the respondent submitted an application seeking discharge from service without pension on the ground that his wife became very weak and was unable to look after her children and landed property. The petitioner gave another letter on 14.08.1994 certifying therein that in the event of discharge at his own request on extreme compassionate ground being sanctioned, he shall not be entitled to any pensionary benefit (i.e. pension and gratuity) for his service rendered in Assam Rifles. This letter was countersigned by the Commandant. Thereafter, discharge order was passed on 26.12.1994 for the discharge of the respondent from service with effect from 31.03.1995 at his own request. At the time of discharge the respondent had completed 16 years, 11 months and 6 days of service. After respondent’s discharge from service his wife made representations to the appellants on 15.07.1998, 25.10.1999, 15.03.2000 and 31.12.2000 for grant of pension. The respondent was informed vide letters dated 10.10.2001, 02.05.2002 and 01.07.2002 that as per CCS (Pension) Rules, 1972 he is not entitled for pensionary benefit. Aggrieved by the aforesaid orders the respondent filed writ petition no.1429 of 2002 (S/B) for quashing the orders dated 26.12.1994 and also for grant of pension to him. The claim of the respondent was contested by the appellants mainly on the ground that the respondent was discharged from service at his own request due to his domestic problems which amount to resignation from his 3 service and, therefore, he is not entitled to any pensionary benefit. The appellants further contested the claim of the respondent on the ground that minimum period of qualifying pensionable service for the post of Naik is 18 years whereas the respondent completed only 16 years, 11 months and 6 days of service. The Hon’ble Single Judge allowed the writ petition and quashed the discharge order dated 26.12.1994 on the ground that discharge order was passed without verification of the circumstances by the civil authority and without verifying that the application for discharge was made by the respondent in consciousness and sound mental condition. Heard learned counsel for the parties. The application dated 08.08.1994 submitted by the respondent for discharge from service was duly signed by him. He requested for discharge from service without pension. On 14.08.1994 he further certified that in the event of discharge he shall not be entitled to any pensionary benefit. This letter was signed by him in presence of the Commandant. As such, he was rightly discharged from service w.e.f. 31.03.1995. There is nothing on record which shows that at the time of submission of the application for discharge the respondent was not in sound mental condition. It is not the case of the respondent that at the time of submitting application for discharge he was not in sound mental condition. This is clear from respondent’s own letters dated 08.08.1994 and 14.08.1994. In fact that 4 discharge order was issued on 26.12.1994 in which it was clearly mentioned that respondent was being discharged w.e.f. 31.03.1995. The respondent could have informed the authorities between 26.12.1994 and 31.03.1995 that his application for discharge was not proper as at the time of submission of application he was not in good mental condition but this was not done. Therefore, the Hon’ble Single Judge erred in holding that ‘order of discharge of the petitioner from service without verifying that the application for discharge was made by the respondent in consciousness and sound mental condition, cannot be said to have been passed in good faith and according the rules.’ The Hon’ble Single Judge also erred in directing the appellants for passing order for payment of disability pension to the respondent when admittedly the respondent was not discharged on any medical ground nor was it his case at any stage that he had suffered from any disability of any kind or type attributable to Military Service. In any case, no direction can be issued for payment of pension when an employee does not complete the required minimum period of qualifying pensionable service as prescribed under the rules and in the present case the respondent had not completed 18 years of service as required under the rules. In view of above discussion the Special Appeal is allowed, the judgment and order dated 23.02.2006 passed 5 by Hon’ble Single Judge is set aside and the writ petition is dismissed. No order as to costs. (V.K. Bist, J.) (V.K. Gupta, C.J.) 25.11.2008 Arti 6