IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 11769 of 2007 DATE OF DECISION : APRIL 27, 2009 No.6359931 Ex. L/NK DSC MANI RAM ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Surinder Sheoran, Advocate, for the petitioner(s). Mr. Naveen Chopra, Advocate, for respondents. AJAI LAMBA, J. (Oral) Mani Ram has approached this Court in this civil writ petition under Article 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order dated 13.06.2007 Annexure P-3 under which the claim of the petitioner for service pension w.e.f. 01.08.1999 has been rejected. Prayer has further been made for issuance of a writ in the nature of mandamus directing the respondents to Civil Writ Petition No. 11769 of 2007 2 release the service pension w.e.f. 01.08.1999. It has been brought out that the petitioner joined the Army and completed the term of engagement. The petitioner served for qualifying period and is getting service pension for the period earlier served. In the second spell, the petitioner was enrolled in Defence Security Corps. on 28.05.1984. The petitioner retired on completion of 15 years 2 months and 4 days w.e.f. 31.07.1999 (A.N.). Learned counsel for the petitioner has drawn the attention of the Court towards Regulation 132 of the Pension Regulations for the Army, 1961 (Part-I) which reads as under:- “The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.” Learned counsel contends that the petitioner having completed 15 years 2 months and 4 days in Defence Security Corps., the petitioner is entitled to service pension. The petitioner made a claim which, however, was declined vide order Annexure P-3. It seems that because the petitioner was not given any pension, therefore, a demand was raised for service pension vide Annexure P-2 dated 25.03.2007, a legal notice. Response has been received by the petitioner through his counsel vide communication Annexure P-3 dated 13.06.2007. Relevant portion of Annexure P-3 i.e. para no. 4 reads as under:- “As per Rule 132 of Pension Regulations for the Army 1961, Part-I Civil Writ Petition No. 11769 of 2007 3 minimum period of qualifying service (without weightage) is required for earning Service Pension shall be 15 years. Your client had rendered only 14 years and 336 days qualifying service excluding 94 days non-qualifying service) with DSC. Moreover, the condonation for second spell of Service Pension is also not applicable to DSC personnel in terms of Integrated HQ of MoD (Army) letter No. 82370/AG/PS 4(a) dated 07 Dec 1962. Hence, he is not entitled for Service Pension for second spell of service within the framework or rules.” Faced with the objection of the respondents that the petitioner had only rendered 14 years and 336 days of qualifying service (excluding 94 days non-qualifying service) with deficiency of 29 days in qualifying service with Defence Security Corps, learned counsel has drawn the attention of the Court towards Regulation 125 of the Regulations. Regulation 125 (relevant portion) reads as under:- “Condonation of Deficiency in service for eligibility to service/reservist pension. 125. Except in the case of (a)- (b)-(c) an individual who is invalided with less than 15 years service. Civil Writ Petition No. 11769 of 2007 4 Deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority upto six months in each case.” Learned counsel contends that the petitioner is entitled for consideration of condonation of the period of 29 days that is stated to be less than the qualifying service period. Colonel N.R. Dahiya, Advocate, has assisted the Court in drawing the attention of the Court towards Regulation 9 which reads as under:- “Fraction of a year equal to 3 months and above but less than 6 months shall be treated as a completed one half year. 9. In calculating the length of qualifying service, fraction of a year equal to three months and above but less than 6 months shall be treated as completed one half year and reckoned as qualifying service.” Learned counsel for the respondents has taken a stand that because the petitioner was in second spell of service, therefore, he is not entitled to the condonation of deficiency in service as provided under Regulation 125 or Regulation 9 of the Regulations. Learned counsel for the respondents has referred to the letters (Annexures R-5 and R-6) to state that Regulation 125 of the Regulations cannot be invoked in view of letter issued by the Army Headquarters, Civil Writ Petition No. 11769 of 2007 5 which state that Regulation 125 will not apply to individuals who have already earned pension and that the proposal regarding condonation of deficiency in service for grant of second spell of service pension was earlier floated to Adjutant General's Branch. The proposal, however, had not been agreed to by them. Learned counsel for the respondents has not been able to dispute the fact that no such provision, as provided in letters (Annexures R-5 and R-6) has been incorporated or provided in Regulations 125 and 9 of the Regulations, as reproduced above, or in the Regulations governing the issue i.e. Pension Regulations for the Army, 1961 (Part-I). The admitted facts are that the petitioner is drawing pension for service rendered in the initial spell of service. The petitioner, in the second spell, was enrolled in Defence Security Corps. As per the admitted case of the respondents, the petitioner falls short by 29 days in the qualifying service of 15 years. A provision, with similar implications as Regulation 9 of the Regulations, had been considered by a Division Bench of this Court while dealing with CWP 19101 of 2006 (Salwinder Singh v. State of Punjab and others) decided on 29.7.2008. Relevant portion of the judgment when extracted,, reads as under:- “.......... It is the conceded position that the petitioner has rendered 9 years, 11 months and 21 days service and there is a dispute as to whether he could be deemed to have rendered 10 years service as per the Civil Service Rules and the Civil Writ Petition No. 11769 of 2007 6 instructions dated 17.8.1983 and 31.12.1997. Rule 6.1 of the Civil Service Rules along with the aforementioned instructions came up for consideration before this Court in CWP No.8012 of 2003. The petition was allowed on 8.7.2004 by a Division Bench of this Court (P-11). In that case also the petitioner had rendered less than 10 years service. The Division Bench has cited the following para of instructions dated 31.12.1997:- “I am directed to say that in accordance with the existing provisions of Rule 6.1 of Punjab Civil Service Rules, Volume II, fraction of a year equal to six months and above is treated as a completed six, monthly period for the purpose of calculating of pension of Government employee. The Governor of Punjab is now pleased to decide that in calculating the length of qualifying service for the purpose of pension, a fraction of a year equal to three months and above shall be treated as a completed one half year and reckoned as qualifying service Civil Writ Petition No. 11769 of 2007 7 for determining the amount of pension.” The Division Bench interpreted the instructions and held that 3 months period was to be taken as a fraction for completed one half years, whereas, earlier six months period was taken as a fraction of one year. Therefore, the benefit of instructions was extended to the employee, who had rendered 9 years 9 months 17 days of service. In the present case, the petitioner has rendered 9 years 11 months and 21 days of service and it is claimed that the matter is squarely covered by the Division Bench's judgment rendered in CWP No.8012 of 2003. When the matter came up for consideration on 28.7.2008,learned State counsel has sought time to seek instructions as to whether the Division Bench's judgment, rendered in CWP No.8012 of 2003 (Amrik Singh vs. State of Punjab) was still holding field or whether it was challenged before Hon'ble the Supreme Court. At the resumed hearing, learned State counsel has placed on record a copy Civil Writ Petition No. 11769 of 2007 8 of the order dated 14.3.2005 (Mark 'A') showing that the SLP has been dismissed. Learned State counsel has also made some efforts to persuade us to take a view different than the one taken by the Division Bench by citing heading of Chapter 6 of the Civil Services Rules. However, the view taken by the Division Bench is binding on us and even otherwise there is no reason for us to differ the Division Bench. The instructions dated 31.12.1997 have been issued in pursuance to Rule 6.1 of the Punjab Civil Services Rules and interpreted by adopting principle of beneficial construction. Accordingly, the writ petition is allowed. The petitioner shall be deemed to have rendered 10 years qualifying service. ......” Regulation 125 of the Regulations deals with condonation of deficiency in service for eligibility to service/reservist pension. It clearly provides that deficiency in service for eligibility to service pension or reservist pension may be condoned by a competent authority up to six months in each case. Regulation 9 of the Regulations provides that in calculating the length of qualifying service, fraction of a year equal to 3 months and Civil Writ Petition No. 11769 of 2007 9 above but less than 6 months shall be treated as a completed one half year and reckoned as qualifying service. The petitioner falls short only by 29 days. In my considered opinion, the case of the petitioner deserves to be considered for condonation of deficiency in service under Regulation 125 read in conjunction with Regulation 9 of the Regulations. On a perusal of the facts and circumstances of the case, when considered in conjunction with Regulations 125 and 9 of the Regulations,a it becomes evident that the petitioner is entitled to condonation of period of 29 days in qualifying service. A provision, similar to the one that applies to the case of the petitioner, has been interpreted by a Division Bench of this Court in Salwinder Singh's case (supra) and it has been held that 3 months period was to be taken as a fraction for completed one half year. On account of the delay already caused by the respondents, the matter is not being remitted back to the respondents. 0 Considering the above, this petition is allowed. The petitioner would be deemed to have rendered 15 years of qualifying service. It is, accordingly, directed that the pension and pensionary benefits of the petitioner be calculated and be paid to him within 4 months of receipt of a certified copy of this order. April 27, 2009 ( AJAI LAMBA ) Kang JUDGE