-1- Civil Writ Petition 7786 of 2005. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: May 14,2008. Ex-Signalman Sohan Singh ...Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Sudhir Mittal, Advocate, for the petitioner. Ms.Renu Bala Sharma, Advocate, for the respondents. -.- MOHINDER PAL, J. Claim in the present writ petition is for release of Reservist Pension to the petitioner, who was discharged from Army service on November 25, 1965, on his own request after he had rendered more than sixteen years and four months combined Colour and Reserve qualifying service. -2- Civil Writ Petition 7786 of 2005. The petitioner was enrolled in the Army on June 30, 1949, under `Colour-Reserve' system of enrolment, which was in vogue during that period. Under this system, an individual was supposed to serve for seven years in the Army on regular basis (known as Colour Service) after which eight years were supposed to be spent in reserve, during which period the person could indulge in any civil vocation but could be called upon to serve the nation in case of emergency. While the petitioner was serving in the Army, his terms of engagement were changed to ten/ten system ( ten years in Colour and ten years in reserve). The petitioner was recalled to the active service during 1962 war with China and 1965 war with Pakistan. However, when he received call for active service in 1965, he was seriously ill. He was in no position to report for active duty. He was discharged from Army service on November 25, 1965, under Rule 13 (3) III (iv) of the Army Rules, 1954 (for short `the Army Rules') at his own request after he had put in more than sixteen years and four months' of Combined `Colour-Reserve' service. The Reservist Pension was declined to the petitioner on the ground that when the petitioner was discharged from service on November 25, 1965, at his own request, there used to be clause (b) in Regulation 155 of the Pension Regulations For the Army, 1961 (Part-I) (for short `Pension Regulations') which provided that pension was not to be granted to those individuals who were discharged at their own request before fulfilling their terms of engagement even if -3- Civil Writ Petition 7786 of 2005. they had completed qualifying service of fifteen years for pension. This clause was lateron deleted from Pension Regulation 155 with effect from April 01, 1968. The petitioner having been discharged from Army service at his own request on November 25, 1965, he was held not entitled to the Reservist Pension. After notice, claim of the petitioner has been contested by the respondents by filing a written statement alleging therein that as per terms and conditions of service, the petitioner was due to discharge from service with effect from June 29, 1971 However, he was discharged from the Army service on November 25, 1965, under Rule 13 (3) III (iv) of the Army Rules before fulfilling the terms and conditions of engagement at his own request on extreme compassionate grounds. As per Pension Regulation 155 (b), which was in vogue at the time when he was discharged from service, Reservist Pension was not to be granted to those who were discharged from Army service at their own request before fulfilling their terms and conditions of engagement. The words “at his own request” was deleted from Pension Regulation 155 (b) with effect from April 01, 1968, but the petitioner having discharged from service at his own request on November 25, 1965, i.e prior to the modification of Pension Regulation 155 (b), he was not entitled for Reservist Pension. We have heard Mr. Sudhir Mittal, Advocate, appearing for the petitioner and Ms. Renu Bala Sharma, Advocate, appearing -4- Civil Writ Petition 7786 of 2005. for the respondents and have gone through the records of the case. The only ground on which the Reservist Pension has been declined to the petitioner is that he was discharged from the Army on November 25, 1965, at his own request whereas as per terms and conditions of his engagement, he was to discharge with effect from June 29, 1971. Clause (b) of Pension Regulation 155, which was in vogue at that time, provided that Reservist Pension was not to be granted to those who had been discharged at their own request before fulfilling their terms and conditions of engagement even if they had completed qualifying service for pension. This Clause (b) of Pension Regulation 155 was deleted with effect from April 01, 1968. However, the petitioner having discharged from Army Service at his own request on November 25, 1965, i.e before the deletion of Clause (b) from Pension Regulation 155 with effect from April 01, 1968, he was not entitled to Reservist Pension. Pension Regulation 155 reads as under:- “ An OR reservist who is not in receipt of a service pension may be granted on completion of the prescribed combined colour and reserve qualifying service of not less than 15 years, a reservist pension equal to 2/3rd of the lowest pension admissible to a sepoy, but in no case less than Rs.375/- -5- Civil Writ Petition 7786 of 2005. p.m on his transfer to pension establishment either on completion of his term of engagement or permaturely, irrespective of the period of colour service.” The petitioner was enrolled in the Army on June 30, 1949, and discharged from this service on November 25, 1965, after rendering more than sixteen years and four months of combined Colour and Reserve qualifying service. Under Pension Regulation 155, quoted above, he is entitled to Reservist Pension as per the rates fixed by the Central Government from time to time. Mere fact that before April 01, 1968, there was clause (b) to Pension Regulation 155 which debarred those individuals who were discharged from the Army at their own request before fulfilling their terms of engagement although they had qualifying service for pension to their credit, cannot be made a ground to deny the Reservist Pension to the petitioner. It is well-settled that right to pension depends upon completion of qualifying service. A person who completes the qualifying service is entitled to pension. Whether the relationship of employer and employee comes to an end by way of discharge from service at one's own request or voluntary retirement or resignation in a given situation may not matter so as to enable the employer to deprive the employee from the benefit of a beneficent scheme. It may be one thing to say that a scheme for payment of pension having been introduced at a stage when -6- Civil Writ Petition 7786 of 2005. the concerned employee is no more in service and would not be entitled to the benefit thereof, but it is another thing to say that although he, at all relevant times, was in service and would be deprived of the benefit only because he has either sought discharge or resigned or retired voluntarily. Seeking discharge or voluntary retirement from service cannot mean that the entire service period for the purpose of qualifying service for pensionary benefits is lost. The petitioner having completed qualifying service for receiving Reservist Pension, the said benefit is a benefit earned by him. This benefit cannot be denied to him on the ground that at the end of the qualifying service he was discharged from Army service at his own request. If it is allowed to happen, it will result in the forfeiture of the benefit earned by him. In our considered view, the respondents were not justified in declining Reservist Pension to the petitioner after he had rendered requisite qualifying service for the purpose of pensionary benefits. The petitioner was a boy when he was enrolled in the Army on June 30, 1949. He is now more than seventy five years old and any delay in releasing the Reservist Pension to him is inexcusable. Accordingly, we allow this writ petition and direct the respondents to fix the Reservist Pension of the petitioner as per the rates fixed by the Central Government from time to time and pay the arrears of pension for a period of three years and two months prior to the date of the filing of the writ petition i.e May 17, 2005. The respondents are directed to disburse the arrears to -7- Civil Writ Petition 7786 of 2005. the petitioner within two months from the date of receipt of a copy of this order positively. In case it is not done within the said period, the entire arrears will carry interest at the rate of nine per cent per annum from the date of expiry of two months till the date of payment. ( MOHINDER PAL ) May 14, 2008. JUDGE ak