HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No.1086/04 Dt.4.11.08 Dhani Ram v. UOI and ors Coram: Hon’ble Mr Justice Nirmal Singh, Judge Appearing Counsel: For the petitioner(s) : Mrs Surinder Kour For the respondent(s) : Mr VK Magoo, ASGI (i)Whether approved for: Reporting in Journal/Digest Yes/No (ii)Whether approved for Reporting in Press/Newspaper Yes/No Petitioner through the medium of present writ petition is seeking a direction to the respondent Union of India for releasing reservist pension in his favour along with other pensionary benefits including GPF and Gratuity. The case of the petitioner is that he was enrolled as Sepoy in Indian army on 11th of Feb’64. After completing the basic military training, he remained posted at different stations. It is submitted that the petitioner was transferred to Reserve service vide order dt. 25th of Jan’75 and after completion of 11 years and 3 months colour service, he was discharged from service on 28th of Feb’75, in the Reserved category. The grievance of the petitioner as projected in the writ petition is that he represented to the authorities concerned number of times for grant of Reservist pension and other pensionary benefits but his 2 request in this regard was not considered by the said authorities. It is stated that in the discharge book, the total service rendered by the petitioner has been mentioned by the respondents as 10 years 3 months whereas the petitioner has actually rendered 11 years and 17 days of service. It is further stated that the petitioner made a representation to the respondents in December, 2001, and the petitioner was directed to take up the matter with the Headquarters. It is stated that the petitioner complied with the said direction issued by the authorities concerned and made another representation to ST-12 Sena Bhawan, New Delhi, in April’02, and enclosed all the relevant documents along with the said representation including the discharge book. A legal notice is also said to have been served upon the respondents but despite that, no action has been taken by the respondents so far as considering the case of the petitioner for grant of benefits aforementioned is concerned. Learned counsel for the petitioner submits that as per Army Pension Regulations, 155, a Sepoy whose services are transferred to Reserve and is discharged from service in the said category, he is entitled to reservist pension equal to 2/3rd of the lowest pension admissible to a Sepoy. It is stated that in terms of Regulation 158, a Reservist who is discharged on completion of his prescribed engagement but fails to qualify for Reservist pension on account of his non qualifying period of service, which has the effect of reducing the qualifying service to less than 15 years, may be granted terminal gratuity at the scale of 2/3rd a month’s reckonable emoluments for each completed year of his colour service provided he has rendered not less than 5 years of qualifying service. It is stated that as the petitioner has rendered 11 years 17 days of colour service, he is entitled to reservist pension under the provisions of the aforementioned Army Pension Regulations. 3 Respondents have filed counter stating therein that petitioner was enrolled in the Army on 11th of Feb’64, as Non Combatant Enrolled(NCsE) with terms of engagement of 5 years of service. The age limit for enrolment in the said Cadre was 17 to 35 years and the petitioner who was 34 years of age at the time of enrolment was discharged from service w.e.f. 28th of Feb’75 after he had rendered 11 years and 18 days of service. It is stated that in terms of Ministry of Defence’s letter No. 19173/IX/Org.2 (MP)(e)/1810-S/D(AG-11) dated 31st Dec’71, sanction was accorded to combatise the services of Non Combatant Enrolled w.e.f. Ist of Jan’72, subject to exercise of an option in this regard by the individual concerned. It is stated that the petitioner opted for combat service, and therefore, he was governed by the terms of engagement of 18 years or till attainment of 45 years of age, whichever is earlier as per para 3(e) of the letter referred to above. It is stated that as per para 132 of Pension Regulations for the Army, 1961, Part I, the minimum mandatory qualifying service for the purpose of pension is 15 years and as the petitioner is having 11 years and 18 days of service, therefore, he is not entitled to Service Pension. It is stated that the petitioner was paid the service gratuity and other dues in accordance with the rules. Para 132 of Army Pension Regulations 1961-Part I which prescribes the minimum qualifying service for the purpose of pension reads as under:- “132. The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.” Paras 155 and 158 of the aforesaid Regulations on which reliance 4 is being placed by the petitioner are also being reproduced below:- “155. 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 23rd of the lowest pension admissible to a sepoy, but in no case less than Rs. 375/- p.m. on his transfer to pension establishment either on completion of his term of engagement or prematurely, irrespective of the period of colour service.” “158: A reservist who is discharged on completiton of his prescribed engagement but who fails to qualify for a reservist’s pension on account of his service including some non-qualifying period, which has the effect of reducing the period of his qualifying service to less than 15 years, may be granted a terminal gratuity at the scale of 2/3 a month’s reckonable emoluments (Pay including classification pay, if any last drawn) for each completed year of his colour service provided he has rendered not less than 5 years qualifying colour service.” In terms of para 132, noticed above, the minimum period of qualifying service for the purpose of pension is 15 years. In terms of para 155, an other rank reservist who is not in receipt of service pension can be granted reservist pension equal to 2/3rd of the lowest pension admissible to a sepoy but not less than Rs.375/- pm on completion of combined colour and reserve service of not less than 15 years. Similarly para 158 deals with the provision of terminal gratuity to be paid to a reservist who is discharged on completion of his prescribed engagement but fails to qualify for a reservist’s pension and this terminal gratuity is to be paid at the scale of 2/3 a month’s reckonable emoluments (pay including classification pay, if any last drawn) for each completed year of his colour service but this is subject to the provision that he has rendered not less than 5 years qualifying colour service. 5 In the case in hand, the petitioner as noticed above, was enrolled as Non Combatant Enrolled with terms of engagement of 5 years of service. On exercise of an option by the petitioner, his service were transferred to combat service having terms of engagement of 18 years with colour service or till attainment of 45 years of age, whichever is earlier. The petitioner when completed 45 years of age was discharged from service with 11 years and 18 days of service to his credit i.e. less than 15 years which is the qualifying service for the purposes of service pension. Therefore, in terms of para 132 of the aforequoted Regulations, the petitioner cannot be held entitled to service pension. Petitioner also cannot derive any support from paras 155 and 158 of the Army Pension Regulations. This is because the same deal with reservist pension and not relevant to the case of the petitioner whose services were not transferred to Reserve Establishment but he was discharged from service on superannuation as per the terms of his engagement on the basis of option exercised by him under clause 3(a) of Order No.19178/IX/Org-2(MP)(e)/1810-S/D(AG-II) dated 31st of Dec’1971, issued by the Ministry of Defence, Government of India, a copy of which has been placed on record as Annexure R.1 with the counter. Even otherwise, the petitioner has not placed on record any document to show that his services were transferred to Reserve Establishment. The respondents in para 5 of the counter have specifically stated that the petitioner was discharged from service on attaining the maximum age limit of 45 years and was not a reservist. In view of the above, this petition is found to be without merit and is dismissed. (Nirmal Singh) Judge Jammu Dt.4.11.08 SS/ 6