IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 OP.No. 30490 of 2000(T) ----------------------- PETITIONER(S): --------------- JOHN THOLATHU UKKRU, EX.NO.337 101 L/DAFADAR, THOLATHU HOUSE, PAZHANJI P.O., KUNNAMKULAM, TRICHUR DIST. KERALA STATE. BY ADV. SRI.MATHEWS J.NEDUMPARA RESPONDENT(S): --------------- 1. THE SECRETARY, MINISTRY OF DEFENCE, GOVT. OF INDIA, NEW DELHI. 2. THE CONTROLLER OF DEFENCE ACCOUNTS, (PENSIONS), DRAUPATHI GHAT, ALLAHABAD U.P. 3. THE OFFICER IN CHARGE, ARMED CORPS RECORDS, AHMEDNAGAR. 4. THE COMMANDING OFFICER, 75 ARMOURED REGIMENT. C/O.56 APO. ADV. SMT.NARAYANIKUTTY CHETTUR,ADDL.CGSC SRI.K.M.JAMALUDHEEN, ADDL.CGSC FOR R1TO4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.30490/00. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE DISCHARGE CERTIFICATE. P2. COPY OF THE COMMUNICATION DTD.29.11.99. P3. COPY OF THE REPRESENTATION DTD.23.2.00. P4. COPY OF THE REPRESENTATION DTD.9.5.00 TO R3. P5. COPY OF THE TELEGRAM DTD.31.7.00 TO R3. RESPONDENTS' EXHIBITS: R2(A) COPY OF THE REQUEST DTD.9.7.80 TO THE RESPONDENTS. (B) COPY OF THE INTERVIEW FORM DTD.24.10.80. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.30490 of 2000 ================== Dated this the 24th day of September, 2008 J U D G M E N T The petitioner is a military personnel who was discharged from service after 10 years, 10 months and 15 days of total service. In this original petition the petitioner is claiming payment of pension. But he admits that as per the rules applicable to military personnel, the minimum qualifying service for pension is 15 years and he does not have that minimum service for eligibility for pension. He contends that Regulation 132 of the Pension Regulations of the Army which provides for minimum qualifying service for eligibility for pension as 15 years is unconstitutional and void. He further submits that he was willing to continue to serve the army, but he was discharged from the service of the army against his will, although he had applied for discharge from military service on the ground that his mother was seriously ill. But that request was accepted by the respondents after 2 years and 3 months. That was after his mother regained her health. Therefore, he would find fault with the respondents for discharging him from service before he could o.p.30490/00 2 complete the minimum eligibility service for pension. The petitioner, therefore, seeks the reliefs: “i) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant service pension to the petitioner; ii) To issue an appropriate writ or declaration, declaring that the petitioner is entitled to pension though he has not completed the minimum qualifying service of 15 years as prescribed in the Army Regulation. iii) To issue an appropriate writ or order declaring that Regulation 132 of the Pension Regulations of the Army which provides that the minimum qualifying service for earning service pension as 15 years is unconstitutional and void. iv) To issue an appropriate writ or declaration, declaring that the petitioner was discharged from service against his will and hence he is entitled to service pension, condoning the period falling short for completing the minimum period of 15 years for becoming eligible for service pension; v) To issue an appropriate writ or direction, directing the respondents to enable the petitioner to furnish applications for entitlement to family pension.” 2. A counter affidavit has been filed by the respondents, in which the contentions of the petitioner have been controverted. According to them, the petitioner submitted Ext.R2 (a) request for discharge from service, which he never withdrew. The same was processed in due course and he was discharged from service on 24.10.1980. As such, the petitioner cannot now contend that his discharge from service is against his will. They would also submit that in so far as the minimum qualifying o.p.30490/00 3 service for becoming eligible for pension is 15 years, the petitioner cannot be granted pension. They also submit that it is the prerogative of the rule making authority to fix the minimum service eligibility for pension and therefore, there is nothing unconstitutional in Regulation 132 of Pension Regulations of the Army. 3. I have considered the rival contentions in detail. 4. In so far as the challenge against constitutional validity of Regulation 132 of the Pension Regulations of the Army is concerned, I do not find anything merit in that contention. The rule making authority has fixed 15 years as minimum qualifying service for pension. I do not find anything unconstitutional or void in such regulation. The same cannot be termed to be arbitrary in any manner. 5. As far as the validity of the petitioner's discharge is concerned, admittedly the petitioner had put in a request for discharge from service. He has no case that at any time he had withdrawn that request. That being so, the petitioner cannot find fault with the respondents for allowing his request for discharge from service. Further, that discharge was as early in 1980. The o.p.30490/00 4 petitioner cannot after 20 years challenge the validity of the same. 6. When admittedly the minimum eligibility condition for becoming eligible for pension is 15 years, which power of the rule making has been upheld by me as above, the petitioner cannot seek pension, since admittedly he did not have 15 years of service in the army. Therefore, I do not find any merit in the original petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.30490/00 5 S.SIRI JAGAN, J. ================ O.P.No.30490 of 2000-D ================ J U D G M E N T 24th September, 2008 o.p.30490/00 6