[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. Pratap Singh Vs. Union of India & Ors. S.B.CIVIL WRIT PETITION NO.5863/1999. DATE OF ORDER :- 12th of August,2008 PRESENT. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. R.S.Bhadauria, for the petitioner. Mr. Sanjay Pareek for the respondents. BY THE COURT:- (Oral). 1. In this writ petition, the petitioner has prayed for issuance of writ of mandamus or any other appropriate writ, order or directions commanding the respondents for treating the petitioner on reserve till his completion of 15 years services, as qualifying service for pension. He has also prayed that the discharge order passed by the respondents on 21.6.1963 may also be quashed and set-aside or in the alternative, the petitioner has prayed that the short fall period of 1 year and 6 months for qualifying pensionable service be got condoned and he be awarded service pension from due date. 2. Briefly, stated the facts of the case are that the petitioner was enrolled in the Jind Infantry on 13.1.1949 and remained with it till 31.3.1951. Thereafter, the petitioner [2] switched over to Patiala Infantry w.e.f. 1.4.1951 and served with that Unit till 1.10.1952. Therefore, he had rendered 3 years, 8 months and 17 days services at stretch. Thereafter, he again got enrolled in the Grenadier Regiment on 12.8.1953 and was transferred to reserve establishment w.e.f. 6.10.1958 whereby he had rendered 5 years and 55 days qualifying services for pension. 3. The petitioner was then discharged from reserve service w.e.f. 21.6.1963 before completion of 15 years service for the purpose of pension. Therefore, the grievance of the petitioner is that on account of such act of the respondents, he was illegally deprived of his pensionary benefits without there being any fault of his. Further case of the petitioner is that he had rendered service for a total period of 13 years, 5 months and 23 days. He was recalled for colour service on 17.11.1962 for completion of requisite period to enable him to earn his pension. 4. According to the petitioner he had never sought discharge from reserve service on compassionate ground. The petitioner has submitted that there was no reason whatsoever, [3] for him to seek discharge at that stage because having been proceeded on reserve establishment, he had all the time to manage his own affairs and problems. Therefore he had never asked for discharge on compassionate ground and whatever is mentioned in the Discharge Certificate, that “Before fulfilling the conditions of enrollment on extreme compassionate grounds”, is wholly misconceived and without any basis. 5. It is also stated by the petitioner that when a person is put to a reserve establishment he is not required to discharge the duties but is only called periodically for the purpose of refresher training or during mobilization as per existing instructions. After such training, the persons proceed to their home and are free to do their own work. Thereafter, they become entitled for pension on completion of 15 years service as a member of reservist establishment. The petitioner had never failed to turn up at the training camp as and when he was requisitioned. Therefore, there was no valid reason to prematurely discharge the petitioner from reserve service. 6. The petitioner had made correspondences on various occasions, for grant [4] of reservist pension. It was vide letter dated 1.12.1994 that respondent NO.3 had intimated that record of the Unit of the petitioner is not traceable and hence they are not in a position to reply. It was only vide letter dated 12.6.1995 that the respondent No.3 had intimated the petitioner that since he had not rendered fifteen years qualifying services and his discharge has been effected before fulfilling the conditions of enrollment on extreme compassionate ground that he is not eligible for any kind of pension. Thereafter, the petitioner got a notice of demand of justice served on the respondents on 3.2.1998, stating therein that he has been wrongly deprived of his pension and has been made a victim of discharge for some undisclosed reasons and the compassionate ground is only a colour to deprive him from the pensionary benefit. A copy of discharge certificate was sought from respondent No.3 on 5.5.1999 and the same was provided through the counsel for the petitioner on 5.7.1999. In reply to the notice for demand of justice respondent No.3, on 16.7.1999,(Annexure-5) re-iterated that the petitioner has not rendered qualifying service of 15 years as such not entitled for pensionary benefits. [5] 7. The case of the respondents is that the petitioner had not rendered the qualifying service of fifteen years as enjoined in para 132 of the Pension Regulations and, therefore, he is not entitled to any pensionary benefit. The respondents had sought the copy of the discharge certificate from the petitioner of his services rendered with Jind/Patiala Infantry for examining the matter. The respondents have also raised objections that the writ petition has been filed by the petitioner after a considerable delay, since discharge of his service. It has also been submitted that as per the discharge certificate the services rendered in the Jind Infantry have not been counted towards service condition. The respondents have also taken the stand that as the matter relates to a very old period, the relevant record was not available and the service documents have been destroyed after certain period. 8. Learned counsel for the petitioner has submitted that the petitioner has been illegally deprived of pension and he has been wrongly discharged from reserve service w.e.f. 21.6.1963. He has also submitted that the period of service rendered by the petitioner [6] with Jind/Patiala Infantry is very much mentioned in the discharge certificate, which was made available to them. Further he has submitted that the petitioner being in the reserve establishment, there was no question of his seeking discharge on compassionate ground. In fact, the work of reserve establishment is that after completion of periodical refresher training, the petitioner had to proceed back home and in such view, there was no necessity for him to seek discharge, particularly when he was nearing completion of fifteen years of qualifying services which would have entitled him for pensionary benefits. In support of his submissions the learned counsel for the petitioner has relied upon the cases of Ajit Singh Vs. Union of India and Others,2001 LIC 3864 and the Case of Ex.-Cpt H.J.Warren Vs. UOI, 2002 LIC 2360. 9. On the other hand, the learned counsel for the respondents has submitted that the petitioner is not entitled for any relief as he has approached after an inordinate delay from the date of discharge i.e. 21.6.1963. He has also submitted that the petitioner had only rendered a total service of ten years and nine months, and the services rendered by him with [7] the Jind Infantry had not been counted. It has also been submitted that so far as the recall of service on 17.11.1962 is concerned, there is no record available with the respondent No.3 as the service record are destroyed after certain period. He has relied upon the case of The Union of India And Ors. Vs. Bahsir Ahmed,(2006) 9 SCC 609. 10. In order to appreciate the controversy involved in the present case, firstly, it has to be seen as to what is reserve service. When a Member of Armed Forces is transferred to a reserve establishment then he does not have to discharge any duty. Such Members of the Force are only called for refresher training periodically or during mobilization and after completing the periodical training, the members of reserve establishment proceed back to their home. It is after completion of fifteen years services that the Members of a reserve establishment become entitled for ordinary pension in the rank last held by them in the substantive capacity. 11. As regards the objection raised by the respondents that the writ petition has been filed after considerable delay, the facts and [8] circumstances of the case, needs to be taken note of. After the correspondences made by the petitioner in respect of discharge and of being deprived of his pension, it was on 1.12.1994 (Annexure-2) that the respondent No.3 had sent an intimation that the record of the Unit of the petitioner was not traceable and therefore, the respondent No.3 is unable to give reply. Subsequently, on 12.6.1995 (Annexure-3)the respondent No.3 had informed the petitioner that since he had not rendered 15 years qualifying services and he had been discharged before fulfilling the condition of qualifying service, on complete compassionate ground, he was in-eligible for pension. It was in the month of May, 1995 that the respondent No.3 had provided the copy of the discharge certificate to the petitioner. Again the respondent No.3 had given his reply to the notice of demand of justice on 16.7.1999, (Annexure-5) saying that as the petitioner has not rendered the qualifying service, he is not entitled for pensionary benefits. 12. Therefore,the aforesaid circumstances, reveal that the petitioner was trying to persuade the respondents for redressal of his grievances, from time to time, and ultimately, [9] it was in the month of July,1999 that when the respondents had finally declined him the pensionary benefits that the instant writ petition came to be filed in the month of November,1999. Needless to say that delay in filing the writ petition may be one of the consideration of the Court in refusing the relief to the petitioner but every case has to be considered in the light of the facts and circumstances of that case. In my considered view, the present case is not of the nature where the writ petition of the petitioner,an ex-army personnel be thrown out only on the ground of delay and it requires consideration on merits. I. In the case of SK Mastan Bee v/s General Manger South Central Railways and Anr., reported in (2003) 1 SCC 184, the Hon'ble Supreme Court observed as under: “The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution.” [10] On the facts of the case, it was held that the learned Single Judge was justified in granting the relief to the petitioner there in. 13. However, the question which arises on facts and circumstances of a case like the present one as to whether the arrears are to be given in full or restriction would be justified. In other words, a contention of delay in seeking relief, raised by respondent, deserves to be accepted or rejected and to grant pension with retrospective effect from the date on which it became due to the petitioner or not. 14. The contention raised by the learned counsel for the respondents that the services rendered by the petitioner in Jind Infantry is not to be counted, is without any basis and rather contrary to the material on record which therefore, deserves to be rejected. A bare perusal of the discharge certificate itself, (Annexure-1) goes to show that it mentions about the services of the petitioner rendered in Jind infantry. 15. Another contention raised by the learned counsel for the respondents so far as [11] recalling of the petitioner for service on 17.11.1962 is concerned, the same cannot be accepted on the ground that no record is available with the respondents. It would be suffice to say that in case relevant record is not available with the respondents, whatever the reason, that itself cannot be reason to reject the submissions made by the learned counsel for the petitioner in respect of qualifying service. When the respondents are unable to specifically deny a fact given by the petitioner, then in that situation it should be deemed that the said fact stands un- controverted. 16. Learned counsel for the petitioner has relied upon the Judgment in the Case of Ajit Singh Vs. Union of India and Others(Supra). In my view, the said case does support the contentions raised by the learned counsel for the petitioner. 17. In that case, the petitioner was discharged from service w.e.f. 9.10.1963. He was not paid the pension and the respondents found that he was in-eligible due to not completing the qualifying service. Therefore, the writ petition was filed in the year 1999 [12] with the prayer inter-alia, that the respondents be directed to pay service pension to the petitioner w.e.f. 8.10.1963 with 12% interest. 18. In order to have broad look to the material facts, in that case, para 5, is being noted hereunder:- “On a perusal of the Petitioner's Certificate of Service, it is evident that he was Discharged by order of the Commandment AMC Centre, Lucknow in consequence of his erroneous assumption of the Petitioners “completion of the terms of engagement under Army Rule 13 (3) (1) after serving 12 years, 226 days with the Colours and 2 years and 315 days in the Reserve (non- qualifying service included.” His character is stated to be good. The Petitioner's services were neither terminated nor was he released on medical grounds. This responsibility and all ensuing repercussions of the mistake in the Discharge must be borne by the Respondents, since the Petitioner did not play any role in it. As far as he was concerned, he would have continued in service till he was forty years of age. It would be [13] inequitable to hold otherwise since the Petitioner had admittedly given the best years of his life to the service of the Army Medical Corps. Having done so his legitimate expectation, i.e. For receiving pension and other retrial benefits must be protected. This right which he had earned cannot be extinguished or diluted by stating that even if the time served by him as a “Boy Recruit” is taken into consideration, he would still not fulfil the minimum period of service requisite for grant of pension etc. It would also not make the slightest difference that during the period in which he was permitted to serve in the Army Medical Corps, 380 days could not be taken into consideration for the non- qualifying service period. The simple answer is that the Petitioner would have willingly served if not till he had attained the age of forty years. But at least till he had served for the qualifying years i.e. 15 years of service together with the 380 days which in his case are stated by the Respondent to be non-qualifying. Had the Respondents not Discharged the Petitioner in the mistaken understanding of his having [14] completed the terms of engagement, he could have challenged the Respondents' unilateral decision of Discharge as being contrary to any provision of the Army Act or Army Rules. As has already been mentioned above, his services were neither terminated nor was he discharged on medical ground. The Respondents' decision is clearly detrimental to his interests and punitive in character since he would stand to lose his right for receipt of pension. A punishment can be inflicted only in strict compliance of the statutory provisions.” 19. The case relied upon by the learned counsel for the respondents namely, The Union of India And Ors. Vs. Bahsir Ahmed (Supra) was decided in a different situation for which two important facts need to be taken note of. Firstly, the respondent therein made a request to the appellants for discharge from army service on compassionate grounds which was accepted and he was discharged, resulting in his name being struck off from service on 6.9.1978. Therefore, he had rendered service for 9 years 7 months and 27 days in the army [15] which included some overstay leave. Secondly, the reserve liability certificate issued to the respondent on 1.7.1996, in that case, clearly indicated that the respondent wanted to be discharged from service before completion of the colour service and in clear terms accepted the liability to serve in the reserve for a period of two years. Therefore, the Apex Court had considered the case of respondent Bashir Ahmed in a different fact situation than the present one. 20. Coming to the next point, that the petitioner was discharged from service on compassionate ground, raises many questions to be considered. Firstly, nothing has been placed on record by the respondents so as to show as to why the action of discharging the petitioner was taken. Secondly, whether the petitioner had asked for being discharged from service. As a matter of fact, the petitioner has categorically denied for having made any request whatsoever, to discharge him from service. On the contrary, he has come with the case in the writ petition that when he was in the reserve service, there was no reason for him to seek discharge from service on compassionate ground because he was having [16] sufficient time to look-after his work and problems whichever, he had. Therefore, there appears to be no reason whatsoever for the petitioner to make a request for seeking discharge from service on compassionate ground. Taking into consideration the over all facts and circumstances of the case, the action of the respondents to discharge the petitioner from reserve service is certainly arbitrary and unreasonable. II.21. Now the only question which remains to be considered, in the facts and circumstances of the present case, is as to what relief should be granted to the petitioner. In a case where the ground of delay was raised by the respondent the Hon'ble Supreme Court, in the case of Shiv Dass v/s Union of India, (2007) 9 SCC 274, held that if it is found that the claim of the petitioner is sustainable in law, then the Court would mould the relief which could be granted to a reasonable period of about three years. 22. For the reasons aforementioned the writ petition is allowed. The order of discharge of the petitioner from service passed on 21.6.1963 deserves to be quashed and set- [17] aside. The respondents are directed to treat the petitioner on reserve service till completion of 15 years, the qualifying service for pension. Further, the respondents are directed to pay dues to the petitioner with effect from 1.11.1996 i.e. three years immediately prior to the filing of the writ petition. As the petitioner had been representing for his pension since long, it would also be in the interest of justice and equitable to hold that the petitioner is entitled for interest @ 12% per-annum on the dues which accrued to him since, 1.11.1996. The dues shall be paid to the petitioner within three months from today and future payment shall also be made to him as per Rule. 23. There shall be no order as to costs. (RAGHUVENDRA S. RATHORE),J. Bhatt [18]