IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 24262 of 2004(L) ------------------------------------- PETITIONER(S): ---------------------- R.K.KUNJAPPAN, EX-SPR NO.1340163, UNIT - 9, ER, RAMADIYIL HOUSE, MURIKKUMPADAM, AZHEEKKAL P.O. COCHIN 682 510. BY ADV. MR.JOHN JOSEPH(ROY) RESPONDENT(S): ------------------------ 1. THE UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF DEFENCE, NORTH BLOCK, NEW DELHI - 11. 2. THE CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI. 3. THE ADJUTANT GENERAL, DISCIPLINE & VIGILANCE DIRECTORATE DV-3, ADJUTANT GENERAL'S BRANCH, ARMY HEAD QUARTERS, DHQ.P.O. NEW DELHI. 4. THE SENIOR RECORES OFFICER, RECORDS OFFICE, MADRASS ENGINEERING GROUP, POST BOX NO. 4201, BANGALORE 560 042. ADVS. MR.R.SATHISH KUMAR, ADDL.CGSC FOR R1 TO 3 MR.T.SANJAY, CGC FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 24262/2004 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE CAMMANDING OFFICER DT. 14.8.70. P2:- COPY OF THE LETTER FROM THE 4TH RESPONDENT DT. 6.12.2000. P3:- COPY OF THE JUDGMENT IN OP. NO.5692/01 DT. 9.3.01. P4:- COPY OF THE ORDER T. 24.5.01. P5:- COPY OF THE COVERING LETTER ACCOMPANYING EXT.P4 TO THE PETITIONER ISSUED ON 28.5.01. P6:- COPY OF THE SERVICE CERTIFICATE TO THE PETITIONER. P7:- COPY OF THE PETITION SUBMITTED BEFORE THE HONOURABLE PRESIDENT OF INDIA DT. 20.7.2000. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.24262/2004-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24th day of February, 2009 J U D G M E N T The petitioner, an ex-army man has filed this writ petition challenging Ext.P4 by which his request for sanction of pension stands rejected by the Chief of Army staff. Ext.P4 order was passed pursuant to the direction issued by this Court in O.P.No.5692/2001. 2. The petitioner has made the following averments in the writ petition. He joined the Indian Army Service on 03/08/1963 as Sapper. After training at Bangalore he was included in 405 FD company 9 Engineers Regiment and was posted to North-East Frontier area (high altitude area)(but according to the respondents it was in the Madras Engineering Group). He has participated in the India-Pakistan war during the year 1965. According to the petitioner, soldiers who complete seven years of service in the Military are entitled for reservist pension. And such soldiers after two months training in each year for next 8 years and on completion of such colour service is entitled for full pension. It is the case of the petitioner that as the Army Officers usually give an option of willingness or unwillingness to continue in service after completion of 7 years, he expressed his unwillingness to continue in service, by granting W.P.(C) No.24262/2004 -:2:- reservist pension. But that was denied to him. Therefore, he continued for some more time. 3. Ext.P1 is the representation said to have been sent to the Officer Commanding, 405 FD coy (Engineers). According to the petitioner, he participated in the subsequent war in the year 1971 and also had remained in the captured area in the Pakistan for a period of six months. 4. He was court marshalled on the allegation that he used criminal force to a Superior Officer. Ultimately, his service was terminated on 08/08/1972, that is, after the completion of 9 years and 7 days in the army. According to him, he is entitled for full pension by considering the 7 years as reserve pension and 2 years 7 days towards the 2 months each service per year for 8 years. As noted already, by Ext.P4 the Chief of Army Staff has rejected his application for pension. This is not challenged in this writ petition. It is stated in Ext.P4 that he was dismissed from service before completing 15 years of combined service and hence, his request for reservist pension and consequential benefits cannot be acceded to. The respondent has filed a detail counter affidavit supporting the order passed as per Ext.P4. 5. Ext.R1 is the relevant rule concerning the matter. Ext.R1 is the extract of Para 113(a) Pension Regulations Part (I) 1961. Going by Ext.R1, in exceptional cases at the discretion of His Excellency the President of India, he may be granted service pension or gratuity at a rate not exceeding W.P.(C) No.24262/2004 -:3:- that for which he would have otherwise qualified had he been discharged from service on the same date. But persons dismissed from service are not eligible for any pensionery benefits. 6. The learned counsel for the petitioner submitted that the petitioner has already filed a representation as per Ext.P7, his mercy petition, before the Hon'ble the President of India. It is prayed that the same may be directed to be considered. In the above factual situation, the first respondent is directed to take appropriate decision on Ext.P7, in the light of Para 113(a) of the Pension Regulations for the Army, 1961. Whether such benefits could be granted, is a matter for decision in accordance with the said Rule. Orders will be passed within three months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms