IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1795 of 2005 (S/S) Ex. J.C. 3317 Nb. Sub / NA. A.M.C. Jhagar Singh S/o late Shri Praveen Singh R/o Village Mathmakhani, P.O. Kulanteshwar, Via –Syalde, District Almora. ...…………. Petitioner Versus 1. Union of India through Secretary Ministry of Defence 2. Chief of the Army Staff, New Delhi. 3. O.I.C. Records, A.M.C., Lucknow. 4. Chief Controller of Defence Accounts (Pension) Dropadi Ghat, Allahabad. ...…………. Respondents Mr. Dinesh Gahatori, Advocate for the petitioner. Mr. Ajay Singh Bisht, Central Govertment Standing Counsel for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari, quashing the order dated 02.02.1989, passed on behalf of the Director General of Medical Services (Army), and order dated 05.05.2005, passed on behalf of the O.I.C. Records, whereby the petitioner has been informed that he is not entitled to the pension payable to the Subedar. 2 2) Heard learned counsel for the parties and perused the affidavits on record. 3) Brief facts of the case, as narrated in the writ petition, are that the petitioner was enrolled in the Indian Army on 05.03.1941, as Sepoy / Nursing Assistant. He was promoted as Naik in August 1942. Further promoted as Havaldar in May 1945. Thereafter, he was promoted as Jamadar / Naib Subedar on 10.07.1953. On 01.10.1963, petitioner was promoted and posted as Subedar in Army Medical Corps (for short A.M.C.). However, on 18.11.1964, he was reverted back as Naib Subedar. He stood retired from the Indian Army on 5th of March 1965. Petitioner’s case is that since he worked as Subedar (acting rank) for 28 days more than the prescribed period before being reverted to substantive rank, he is entitled to the pension on the basis of the salary drawn by him on the post of Subedar, under the Army Instructions. It has been pleaded by the petitioner that he is being paid pension of the rank of Naib Subedar ignoring the salary drawn by him in last five months of 10 months of his service, as Subedar. The petitioner appears to have made a representation in the year 1965, for redressal of his grievances to the authorities concerned, and said representation appears to have been rejected vide impugned order dated 02.02.1989. Thereafter, the petitioner filed an appeal through Adjutant General in the year 1995, which was disposed 3 of vide impugned order dated 16.03.2005. Hence, this writ petition. 4) In the counter affidavit filed on behalf of the respondents it has not been denied that the petitioner was enrolled in the Indian Army in the year 1941, and he was promoted as claimed by him to the various posts on the different dates, mentioned in the writ petition. It is stated in the counter affidavit that petitioner’s promotion on the post of Subedar w.e.f. 01.10.1963, was as acting Subedar. Due to the decrease in the establishment, after one year, the petitioner was reverted back to the substantive post held by him i.e. that of Naib Subedar w.e.f. 01.10.1964. It is further stated that he accepted said reversion under the terms and conditions of the order. Admitting that the petitioner has served a length of service which entitles a person to get pension of the post of Subedar, but for the period the petitioner worked as acting Subedar he held the substantive post of Naib Subedar, as such, the petitioner was not entitled to the pension of the post of Subedar, after his reversion, even though, he completed more than ten months as acting Subedar. In Para 22 of the counter affidavit it has been stated that it was an unfortunate situation that the petitioner has been reverted back to the substantive post due to the reduction in the Corps strength. Defending the impugned orders, it has been stated that the ten months rank rule is not applicable to the present case, as the 4 petitioner retired from the substantive post of Naib Subedar, and not from the post of acting Subedar. 5) In the rejoinder affidavit the petitioner has reiterated the averments made in the writ petition. 6) Before further discussion, this Court thinks it just and proper to mention here the relevant provisions contained in the Pension regulations for the Army, 1961, applicable to the case. Regulation 133 contained in Section II of the aforesaid Regulations reads as under: “133. Except as otherwise provided for, service pension is assessed on the lowest substantive rank held by an individual and the lowest group for which he is paid, during the last two years of his service qualifying for pension.” From the perusal of the above Regulation, it is evident that the petitioner is entitled to the pension of the post of Naib Subedar, which he held substantively in the group of the Junior Commissioned Officers. 7) Learned counsel for the petitioner drew attention of this Court to Regulation 133-A contained in Pension Regulations for the Army, 1961, which provides as under: 5 “133-A. Where an individual reverts to his substantive rank under the acting promotion rules either on account of his being on sick leave or additional leave pending discharge, the period of such reversion, though not counting as service in the higher paid acting rank, will not constitute a break in that acting rank, provided he is discharged or invalidated from service, or is re-appointed to the higher paid acting rank, at the end of his sick leave or additional leave, as the case may be. In the opinion of this Court, said Regulation is not applicable to the petitioner for the reason that at the time of the retirement petitioner was neither on sick leave nor on additional leave. Also, this Regulation was inserted in the aforesaid Regulations subsequent to the retirement of the petitioner, and it cannot be said that it is applicable retrospectively. 8) On behalf of the petitioner attention of this Court is also drawn to Regulation 135 of the aforesaid Regulations, which reads as under: “135. An individual who was remustered from a higher to a lower group on being declared surplus after rendering 15 years or more of qualifying service, may be granted, if more favourable than the pension otherwise 6 admissible, the service pension that would have been admissible had he been discharged on the date he was declared surplus.” The title of the aforesaid Regulation 135 is ‘Individuals remustered from a higher to a lower group’. It does not refer to the cases of remustering from higher to a lower rank. Since, the petitioner’s group remained that of Junior Commissioner Officer, as such, this Regulation has not applicability to the case of the petitioner. 9) Lastly, it is pleaded on behalf of the petitioner that the Commanding Officer himself has recommended vide his letter dated 13th of January 1965 (copy Annexure –9 to the writ petition) that the petitioner be paid pension of the post held by him on an acting rank of Subedar referring to Army Instructions No. 278 / 61. Para 278 of the Army Instructions, 1961, provides that tenure / service limits for compulsorily retired JCO as laid down in RAI Rules 225 (in so far it relates to the tenure of appointment of a Ris/Sub/Maj) and 238 will apply with reference to the rank actually held by a JCO in any capacity, whether substantive or paid acting. The language of Para 278 of the Army Instructions, itself provides that it applies to the compulsorily retired J.C.Os. It is not the case of the petitioner that he is a compulsorily retired J.C.O. Had he opted his retirement at the time of his reversion from acting post 7 of Subedar, the petitioner could have been entitled to the pension of the post of Subedar. It appears that he opted to continue in service by getting reverted, as such, it cannot be said that the impugned orders suffer from any illegality. 10) For the reasons as discussed above, this writ petition is liable to be dismissed in respect of relief No. (i) and (ii). The same is dismissed so far as the relief No. (i) and (ii) prayed in the writ petition are concerned. However, as to the relief No. (iii) i.e. the relief relating to two months annual leave payment plus two months pay as retirement benefits to the petitioner, shall be paid to the petitioner, provided the same is not surrendered by him. No order as to costs. (Prafulla C. Pant, J.) Dt. December 14, 2009. H. Negi