Case: Union of India and another Vs. Abhiram Verma

2. The facts leading to the present appeal in nutshell are as under:That the respondent herein commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer on 27.03.1992 for a period of five years at the age of 33 years and 10 months. He voluntarily applied for Permanent Commission on 7.8.1997. He was granted Permanent Commission at the age of 39 years and 2 months on 28.01.1998. Respondent became a Graded Specialist on 1.6.1994 and thereafter he became a Classified Specialist on 1.6.1999. By letter/application dated 15.04.2000, the respondent applied for resignation on the ground of lack of promotional prospects. At this stage, it is required to be noted that his actual date of superannuation at 56 years of age was 31.05.2014. The application for resignation came to be rejected by the DG, Medical Services (Army) vide communication dated 4.9.2000. That thereafter the respondent filed a statutory complaint on 24.03.2001 against the rejection of his resignation, the same was rejected by the Under Secretary, Government of India on 14.03.2002. That thereafter the respondent filed a writ petition before the High Court of Jammu & Kashmir being SWP No. 1573/2001 against the rejection of his complaint by the Under Secretary, Government of India. The said writ petition came to be allowed by the High Court vide order dated 11.10.2006 quashing the order of the Under Secretary which rejected the respondents resignation and directed the Army to consider the case of resignation afresh. That thereafter the respondents resignation came to be accepted vide order/communication dated 31.01.2007, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave (the denial of the terminal benefits was the subject matter before the Armed Forces Tribunal). The name of the respondent was struck off from the Army Medical Corps vide movement order dated 22.04.2007, with effect from 23.04.2007.2.1 That thereafter the respondent preferred the writ petition before the High Court of Jammu & Kashmir being SWP No. 454/2008 for grant of gratuity and pension, which subsequently came to be transferred to the Armed Forces Tribunal as TA No. 25/2017. That by the impugned judgment and order dated 9.2.2018, the learned Tribunal has disposed of the said transfer application directing the appellants to process the respondents claim for terminal/pensionary benefits taking qualifying service as 15 years as a late entrant under Regulation 15 of the Pension Regulations. That leave to appeal has also been dismissed by the learned Tribunal vide order dated 25.03.2019.2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal directing the appellants to process the respondents claim for terminal/pensionary benefits taking qualifying service as 15 years as a late entrant under Regulation 15 of the Pension Regulation, the Union of India and another have preferred the present appeal.

Reasoning: The submission on behalf of the respondent that what was tendered on 15.04.2000 was not an application for resignation but it was an application for voluntary retirement has no substance and cannot be accepted for the following reasons:i) that the qualifying service for the purpose of voluntary retirement is minimum 10 years service. On 15.04.2000, the respondent did not complete 10 years of service and therefore was not eligible for applying for voluntary retirement and therefore on 15.04.2000 otherwise also he could not have applied for voluntary retirement;ii) in the application dated 15.04.2000, the cause shown was lack of promotional aspects. Even the High Court of Jammu & Kashmir in its judgment and order dated 11.10.2006 which was filed by the respondent specifically noted the submission on behalf of the respondent that the petitioner having joined the Commission at a later stage has no chance of promotion to the first selection, i.e., to the rank of Colonel in the Army Medical Corps. Petitioner moved an application dated 15th April, 2000 before the respondents seeking resignation from the army on the ground of non-availability of promotional prospects and ineligibility to acquire technical skill. Even the High Court in its judgment and order dated 11.10.2006 treated and considered the application submitted by the respondent dated 15.04.2000 as application for resignation and proceeded on that footing. Even the subsequent petition filed before the High Court being SWP 454/2008, the respondent never contended that it was an application for voluntary retirement. If we see the averments in the writ petition all throughout the word used by the respondent is resignation. Therefore, only as an afterthought and to get the benefit of late entrant under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for voluntary retirement and it was not an application for resignation;iii) even as per the applicable rules for premature retirement/resignation of AMC Officers dated 26.3.1998, a request of an officer to seek premature retirement/resignation on the ground of lack of career prospects shall not be accepted and even if the officers are permitted to resign, they are not entitled to terminal/pensionary benefits; andiv) even from para 6 of the written submissions dated 15.09.2021 filed on behalf of the respondent, it can be seen that the respondent has accepted that on 15.04.2000 he was not eligible for voluntary retirement and therefore he used the word resignation to get out of the technical reason. Therefore, it can be said that he has admitted that on 15.04.2000 he did not fulfil the criteria for voluntary retirement as on that day he had not completed 10 years of service.Therefore, from the aforesaid facts, the only conclusion would be that on 15.04.2000 the respondent tendered resignation for lack of promotional avenues/aspects and it was not a case of voluntary retirement.7. Even, there is a distinction between the resignation and voluntary retirement. A person can resign at any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.8. This Court had an occasion to consider the distinction between resignation and voluntary retirement in the case of Senior Divisional Manager, LIC v. Shree Lal Meena, reported in (2019) 4 SCC 479,  which has been subsequently followed by this Court in the case of BSES Yamuna Power Ltd. (supra). In paragraph 22, it is observed and held as under:22. The principles in the context of the controversy before us are well enunciated in the judgment of this Court in RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461 : 2004 SCC (L&S) 737]. On a similar factual matrix, the employees had resigned sometime in 1988. The RBI Pension Regulations came in operation in 1990. The employees who had resigned earlier sought applicability of these Pension Regulations to themselves. The provisions, once again, had a similar clause of forfeiture of service, on resignation or dismissal or termination. The relevant observations are as under: (SCC pp. 467-68, paras 10)10. In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary….8.1 The law laid down by this Court in the case of Shree Lal Meena (supra) has been reiterated by this Court in the subsequent decision in the case of BSES Yamuna Power Ltd. (supra) and in the subsequent decision, this Court also considered the observations made in paragraph 26 in Shree Lal Meena (supra) that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions. It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. Therefore, having tendered the resignation, the respondent has to suffer the consequences and now cannot be permitted to take U turn and say that what the respondent wanted was premature retirement and not resignation.9. Now so far as the reliance placed by the respondent on Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008 to contend that a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification shall also be counted for the purpose of pensionable service, the same cannot be accepted, firstly on the ground that the same was not raised before the High Court/AFT. Even otherwise also, the Pension Regulations of the Army, 2008 shall not be applicable to the case of the respondent as the respondent would be governed by the Pension Regulations, 1961, which have no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008. The same has no retrospective applicability. As such, the respondent had resigned on 15.04.2000 and even his resignation was accepted on 31.01.2007, much prior to the coming into force of the Pension Regulations of the Army, 2008.10. Now so far as the reliance placed upon the decisions of this Court in the cases of D.S. Nakara (supra) and K.J.S. Buttar (supra) is concerned, the same shall not be applicable to the facts of the case on hand. Similarly, the decision of this Court in the case of Lt. Col. P.S. Bhargava (supra) shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the respondent. In the case before this Court, it was found that the officer completed the requisite qualifying service which was for the purpose of pensionable benefits. However, the same was sought to be denied on the ground that he voluntarily resigned. In the present case, as observed hereinabove, the minimum qualifying service for the purpose of pensionable benefits is 20 years as per Regulation 25(a) and if his case is considered as a late entrant, then 15 years as per Regulation 15.As per Regulation 15, a late entrant is an officer who is retired on reaching the prescribed age limit for compulsory retirement with at least 15 years commissioned service (actual). As the respondent did not retire on reaching the prescribed age limit for compulsory retirement, the respondent cannot be said to be a late entrant. The purpose and object seems to be to give 5 years relaxation/grace for qualifying service for earning a retiring pension. As per Regulation 25(a), the minimum period of qualifying service actually rendered and required for earning a retiring pension shall be 20 years. However, if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a late entrant and is entitled to pensionary benefits by getting 5 years grace period. Therefore, to that extent the same can be said to be a relaxation/grace of 5 years for getting the benefit of pensionable benefits provided the case falls within Regulation 15 and an officer is a late entrant. As observed hereinabove, the respondent cannot be said to be a late entrant and therefore not entitled to the benefit of Regulation 15 and therefore not entitled to the pensionary benefits.