- 1 - S.B.CIVIL WRIT PETITION NO. 2481/2005 (Laxman Das vs. Union of India & Ors) DATE OF ORDER : 7/5/2008 HON'BLE JUSTICE GOPAL KRISHAN VYAS Dr.Pushpendra Singh Bhati, for the petitioner. Mr.Ravi Bhansali, for the respondents. Reportable In this case petitioner is claiming pensionary benefits from the date of discharge which is 31/7/1975 with interest @ 18% p.a. Further it is prayed that order dated 12/6/1988 (Annex.3) passed by the respondent no.3 may kindly be quashed and set aside with all consequential benefits. Brief facts of the case are that petitioner joined the services of respondent department on the post of Sepoy on 25/1/1963 and retired from service on 31/7/1975 after completion of 12 years 6 months and 6 days service under Rule 13-III (ii) of the Army Rules, 1954. As per petitioner, he took part in the wars of 1965 and 1971, so also received so many medals. According to petitioner, he made an application on 24/5/1988 and requested the respondents to grant him pension and gratuity for the services rendered by him but vide order dated 12/6/1988 respondents have rejected the genuine prayer of petitioner. According to petitioner although he had worked for 12 years, 6 months and 6 days and as per Rule 132 of Pension - 2 - Regulation for the Army, 1961 he is not entitled for pensionary benefits, however according to Regulation 164 special pension or gratuity can be granted at the discretion of President to those individuals who were not transferred to reserve and are discharged in large numbers in pursuance to Government's policy, therefore, though petitioner has not completed 15 years of service, still he is entitled for grant of special pension in view of Regulation 164 of the Army Regulation, 1961. In reply to writ petition, it is contended by learned counsel for the respondents that petitioner is not entitled for pensionary benefits as per Rule 132 of Pension Regulations for Army ,1961 wherein the qualifying service for grant of pension is 15 years and admittedly petitioner has not completed requisite number of qualifying service, therefore, there is no question of granting pensionary benefits. Further it is stated that service documents in respect of petitioner have already been destroyed on expiry of mandatory retention period of 25 years being a non-pensioner in terms of para 595 of Regulations for the Army. However, as per Long Roll maintained in ASC Record (South), Bangalore, the petitioner was enrolled on 25/1/1963 with terms of engagement of 10 years of colour service and 10 years in reserve establishment. He was further retained in service against the availability of vacancy in colour service as he had carried 10 - 3 - years reserve liability due to disturbance in the neighboring country (i.e East Pakistan now Bangadesh) and subsequent Indo Pak War of 1971. It is further stated that service of a personnel under reserve liability beyond colour service was subject to availability of vacancy and admittedly petitioner was discharged from service after 12 years 6 months and 6 days service, therefore, in view of Rule 132 of Army Regulation, 1961 Part I he has not completed minimum qualifying service which is 15 years to earn pension. Further it is submitted by the respondents that proposal relating to grant of pension to those personnels who were discharged with more than 10 years of service but less than 15 years of service was examined thoroughly but the proposal was turned down in view of its financial and other associate implications vide communication dated 13/6/1995. It is further submitted that petitioner has filed the present writ petition after lapse of 30 years, therefore, he is not entitled for any relief on the ground of delay also. With regard to claim of petitioner under Para 164 of Pension Regulation for Army, 1961 Part I, it is submitted that said para is in connection with grant of special pension to those individuals who were not transferred to the reserve and are discharged in large numbers in pursuance of Government's policy viz. (a) of reducing the strength of establishment of the - 4 - Army; or (b) of re-organization, which results in disbandment of any unit. Therefore, as per respondents petitioner does not fall under the above clauses because he was discharged from service there being no vacancy in reserve establishment and not due to reduction of strength or re-organization or disbandment of any unit. It is further submitted by learned counsel for the respondents that if relief prayed for is granted then it will open Pandora box as large number of persons, who could not be transferred to reserve establishment for want of vacancies will approach various courts seeking the relief which will create serious financial and other associate implications. In these circumstances, it is submitted that there is no force in the writ petition and same may be dismissed. I have considered rival submissions and perused the record of the case. From the bare reading of Rule 132 it is clear that for grant of pension, an incumbent is required to put in 15 years of service which, admittedly, petitioner has not done. However, upon perusal of Rule 164 it is revealed that special pension or gratuity can be granted but discretion is left with the Hon'ble President of India to those individuals who were not transferred to the reserve and are discharged in large numbers - 5 - in pursuance of Government policy. In this case, although petitioner is not expressly entitled for pension but there is discretion left with the Government to grant special pension to those soldiers who have completed more than 10 years of service but not completed 15 years of service and for that purpose the Welfare State made a proposal and matter was examined thoroughly and, thereafter, following decision was taken and communicated vide commuication dated 13/6/1995, which is as follows:- “The proposal relating to grant of pension to the following two categories of reservists was taken up with the Min. Of Def.:- (a) Those who were discharged with more th an 10 years but less than pensionable service there being no vacancy in the reserve. (b) Those who rendered more than 15 years combined colour and reserve service and were eligible for pension but opted to draw reservist gratuity in lieu of pension. The ibid proposals have been turned down in view of its financial and other implications. However, the proposal is being projected to V pay Commission (Army) for formulating necessary recommendations.” Upon perusal of above communication dated 13/6/1995 it - 6 - is abundantly clear that proposal relating to grant of pension was considered by the Ministry of Defence and cases of those who were discharged with more than 10 years of service but less than pensionable service, there being no vacancies in the reserve and those who rendered more than 15 years of combined colour and reserve service and were eligible for pension but opted to draw reservist gratuity in lieu of pension were considered but the said proposal was turned down in view of financial and other implications. However, it is observed that proposal is being projected to V pay commission (Army) for formulating necessary recommendations. Meaning thereby, Ministry of Defence has not completely refused to accept the claim of special pension but it is observed that due to financial and other implications the matter cannot be considered. However, it was decided that proposal may be projected to V Pay Commission (Army) for formulating necessary recommendations. In my opinion, if a soldier who had completed more than ten years of service and unfortunately could not complete 15 years of service for want of vacancies and had participated in two wars then merely on the basis of financial and other implications cannot be denied pension and that too on the ground that pandora box will be opened if such relief is granted is not a valid ground. It is the duty of the Welfare State to at least take care of maintenance of those soldiers who had - 7 - given their precious more than ten years in the service of nation but unfortunately could not complete pensionable service for want of vacancies. Though it is observed in the communication dated 13/6/1995 that at present due to financial and other implications the proposal is turned down but proposal will be projected to V Pay Commission (Army) for formulating necessary recommendations. Meaning thereby, the only ground to turn down the proposal for grant of pension was on the basis of reason that pandora box will be opened, if such relief is granted. In my opinion, it is the duty of State to save life of those soldiers who have rendered more than ten years of service for the safety and security of the nation and it appears that matter has not been examined objectively on this aspect. In view of the above, respondents are directed to consider the claim of grant of special pension to the petitioner and all those soldiers, who were not transferred to reserve and were discharged for want of vacancy without completing qualifying pensionable service, which is 15 years and for that purpose a scheme may be formulated for welfare of those employees who have served the nation for more than ten years but less than 15 years and also fought for the country. This exercise may be - 8 - completed within a period of six months from today. With these observations, this writ petition is disposed of. (GOPAL KRISHAN VYAS), J. Pankaj Baweja