Punjab-Haryana High Court

Gopi Ram vs Union Of India & Ors on 19 April, 2024

Author:
Sanjeev Prakash Sharma

Bench:
Sanjeev Prakash Sharma

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Reserved on : 03.04.2024
Date of Decision :19.04.2024

CWP No. 17312 of 2014 (O&M)

Ex. Sgt. Gopi Ram ...Petitioner
Versus
Union of India and others ...Respondents

CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present: Petitioner-Gopi Ram in person .

Mr. Bharat Bhushan Sharma, Senior Panel Counsel,
for the respondents.

SANJEEV PRAKASH SHARMA, J.

The petitioner is an Ex-Air Force Personnel. The petitioner

by way of this writ petition has challenged his discharge from Air Force

prematurely. It is submitted that had he not been illegally discharged, he

would have continued in service and would have served upto 58 years and

would have been entitled to receive regular pension. He prayed that he

should be granted regular pension deeming him continue in service after

setting aside the order of his discharge.

2. The petitioner has also prayed for quashing of the order dated

07.04.2014 passed by the Armed Forces Tribunal, Chandigarh Bench (for

short, 'AFT'), whereby his OA was rejected. He further prayed for

quashing of orders dated 25.02.1972 and 22.09.2010, which were

challenged by him before the AFT.

1 of 21

::: Downloaded on - 23-04-2024 22:46:43 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -2-

3. Initially the issue before this Court was with regard to the

maintainability of the writ petition against the order passed by the AFT.

However, keeping in view the judgment passed in Civil Appeal No. 447

of 2023 - Union of India and others vs Parashotam Dass ; 2023(3) SLR

1, decided on 21.03.2023, wherein the writ petitions were held to be

maintainable against the order passed by the AFT and the cases were

remanded to the respective High Courts for adjudication on merits, the

question of maintainability is no more required to be examined and,

therefore, all the writ petitions were directed to be heard independently

which had different issues. Thereafter, the present case was taken up and

the petitioner in person and counsel for the respondents were heard.

4. The petitioner was enrolled in the Indian Air Force as a

regular Combatant Airmen in the trade of Radar Operator, Group-II. He

was thereafter attested to the Air Force after successful completion of

training on 10.12.1964 in Operational 43 Signal Unit A.F. He was

promoted to the substantive rank of Corporal (CPL) on 27.12.1976 and

was further promoted to the rank of Sergeant with effect from 25.09.1969.

After having appeared and qualifying the examination, he was further

promoted to the rank of Flight Sergeant. He actively participated in the

two Indo-Pakistan wars of 1965 and 1971. During this service tenure, it is

stated that he had successfully passed the Orientation Course as Radar

Operator Specialist and had been awarded First Rate of Good Conduct

Badge and Second Rate Good Conduct Badge on 27.12.1966 and

27.12.1970, respectively. It is stated that the petitioner had been awarded

with several other medals and decorations including Raksha Medal,

2 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -3-

Samar Sewa Star Medal and 9 years Long Service Medal and two distinct

medals of 1971 war. The petitioner, thus, submitted that he had completed

9 years service on 26.12.1971 whereafter he was retained in service,

however, was discharged without any reason on 28.03.1972. The

petitioner submitted that he had requested his AOC to allow him to

continue serving regularly till completion of 15 years engagement but his

request was not examined and remained unheard.

5. The petitioner has submitted that he was governed by the Air

Force Instructions 12/S/48 (hereinafter to be referred as "AFI") as per the

amended terms and conditions of service of Regular Airmen of the I.A.F.

The said A.F.Is. have been amended from time to time. As per the list, the

last amendments were made in July, 1969. The terms and conditions of

service of Regular Airmen of the I.A.F. provided that in future they would

be governed by the conditions as laid down therein. The relevant extract

of AFI reads as under:-

"12. Period of engagement: Candidates will be engaged with effect
from the date of enrolment for the under-mentioned periods of
service with the Regular Air Force and in the Regular Air Force
Reserve:-

(a) Regular Service

(i) Candidates will be enrolled initially for 15 years Regular
service but those who fail to attain the rank of Corporal
within 9 years will be discharged.

Note: Airman already serving their 9 years initial
appointment may be allowed to contract for 15 years
engagement counting from the date of their enrolment subject

3 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -4-

to the fulfillment condition mentioned in this sub-clause. of
the

(ii) On completion of 15 years regular service an airman may
be allowed, at the discretion of the C.A.S. to extend the
period of regular service by 6 years to complete 21 years
service, further extension of regular service may be granted
for a period of 3 years at a time or such shorter period as
deemed necessary up to the age of 55 years.

(b) Reserve Liability

(i) Subject to the provisions of succeeding sub-Clause, and
Para 13(c), on completion of the period of the regular
service, including extension. if any, mentioned in (a) above,
the airmen will be liable to serve in the Regular Air Force
Reserve for a period of 6 years with effect from the date on
which their regular engagement expires.

(ii) In the case of airmen transferred to Regular Air Force
Reserve before the expiry of his regular service for which
they were engaged, un- expired portion of their regular
service will be added to their reserve liability.

(iii) Airman who are not transferred to the regular Air Force
Reserve on the expiry of their regular service will have the
liability to be transferred to the Regular Air Force Reserve
any time during the period of the reserve liability.

(iv) On completion of the initial period of service in the
Regular Air Force Reserve, an airmen may be required by
the competent authority to serve in the Regular Air Force
Reserve for such further period of periods not exceeding in
the aggregate five years as it may think fit vide
Section 7
of
the Reserve and Auxiliary Air Forces Act, 1952.

(v) Notwithstanding anything contained in the preceding sub-
clauses no airman shall be liable to serve in the Regular Air

4 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -5-

Force Reserve after attaining the age of 55 years, vide rule 4
of the
Reserve and Auxiliary Air Forces Act
, rules, 1953.

13. Retention after completion of regular service:- (a) If at the time
he becomes entitled to be discharged, a state of war exists between
India and a foreign power, or in the opinion of the Central
Government a war is imminent or a state of emergency has been
declared or if the strength of the trade in which he is mustered is
10% below the authorized establishment, an airman may
notwithstanding any thing contained in Para 12(b) above, be
retained in the Air Force service for such further period of periods
as the Chief of the Air Staff may order.

(b) During the period of this retention under sub-Para (a) an
airman will continue to be governed by the normal terms and
condition of service in the same manner as if an extension had been
granted to him.

(c) The reserve liability of an airman who has been retained in Air
Force service under this paragraph shall be reduced by the period
of such retention.

Thus, those Airmen who had already served 9 years initial engagement

could be allowed to contract for 15 years engagement counting from the

date of their enrolment provided they fulfilled the other conditions. The

petitioner further submits that he had, after being enrolled, further

promoted twice upto to the rank of Sergeant. He had also been continuing

after 9 years of service, however, he was discharged without giving any

reason vide order dated 09.02.1972.

6. The petitioner has taken this Court to the order, which

reflects as under:-

5 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -6-

"Discharged from the Air Force under IAF Act Rules 1932
Chapter III Rule 13 clause (ii) "ON FULFILLING THE
CONDITION OF ENROLMENT ON COMPLETION OF
NINE YEARS ENGAGEMENT AND NOT BEING
REQUIRED TO SERVE IN THE RESERVE w.e.f. 28.3.72,
Struck off the strength of the IAF w.e.f. 29.3.72. Authy:-
RO/2505/4ERW (Dis) dt.9.2.72."

The petitioner submits that on the same day i.e. 09.02.1972, the period of

service rendered by the petitioner after 9 years i.e. from 27.12.1971 to

28.03.1972 was regularized as extension of service by another order dated

09.02.1972, which reads as under:-

"The period of stay from 27.12.71 to 28.3.72 (total 93 days)
in service beyond completion of his regular engagement)
regularized as extension of service Authy:- AFI 12/S/48 as
amended by Corr.7/39, Air Ho letter No. AIR Ho/49851/PA II
d/d 21.12.70 M/455 d/d 13.12.71 and Ho/2505/4/EIW (I)d/d
9.2.72."

The petitioner further submits that once his services were extended

beyond 9 years, he could not have been discharged on 28.03.1972 as he

has been retained in regular service beyond 9 years and in terms of AFI,

he was entitled to continue upto 15 years of service.

7. The petitioner has further submitted that as per Rule 13

Clause (ii) of the
Air Force Act
and Rules 1932, the discharge order was

bad in law which states that the discharge under Rule 13 (ii) is at his own

request on fulfilling the conditions of enrolment and that the Commanding

Officer is the competent authority to discharge him, however, as the

petitioner never submitted his request to be discharged, the order passed

6 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -7-

by the Commanding Officer was without jurisdiction and he was

incompetent to discharge him. It is submitted that the petitioner has sent

several representations and also sent notice through his lawyer after he

could not receive any positive reply from the Air Force Authorities. He

also sent a petition under
Section 26
of the Air Force Act, 1950 to the

Chief of the Air Staff on 27.06.2003 claiming service pension. However,

the Air Force Officers have shown indifferent attitude. The petitioner

submitted that once his service was extended, he can be deemed to be

continued in service for 15 years as he fulfills the other conditions

required for extension. The Air Force Command Officer had issued a

trade proficiency certificate to the petitioner dated 26.03.1972 at the time

of discharge. It is submitted that upto 6 years after discharge, the

petitioner remained in reserve service and he, therefore, after having

completed his reserve service also submitted an application for setting

aside the discharge and, thus, he was always continuing with his claim and

it cannot be said that the petitioner had put up a stale old claim.

8. The petitioner submitted that as a defence personnel, he had

maintained discipline and was always expecting that his superiors to take

decision with regard to his case and it is only after many years when

nothing happened, he approached the counsel, an Ex-Army Officer, who

took up his claim and made a representation. The Air Force Record

Officer vide letter dated 29.07.2003 rejected the case of the petitioner for

pension relying on Regulation 121 of the Pension Regulations under the

Air Force Act
1961, which require 15 years of qualifying service to earn

service pension. Other representations were sent by him through his

7 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -8-

counsel on 26.06.2004 and 22.07.2010, which were rejected by the Air

Force Headquarter vide letter dated 22.09.2010 reiterating their stand that

the pension can only be earned on minimum service of 15 years. It was

also pointed out that the personal file of the petitioner had been destroyed

by the Board of Officers after retention of stipulated period of 25 years.

The petitioner submitted that the Armed Forces Tribunal, Kolkata, in one

case allowed a person, who had completed 9 years regular service and was

called during emergency situation and rendered 1 year 135 days while he

was in the reserve list, to be treated to have completed 15 years of service

by counting 9 year regular service plus 6 years reserve service. The

Armed Forces Tribunal Kolkata had relied on a judgment passed by

Kerala High Court in the order passed in
Asim Majumdar vs Union of

India
in TA No. 13/2010 arising out of Writ Petition No. 8971 of 2009

filed before the Calcutta High Court.

9. The petitioner submitted that AFT, Chandigarh has

wrongfully dismissed his OA and denied the benefit to him without

examining the issue relating to the wrongful discharge.

10. Per contra, counsel appearing for the respondents-Union of

India submitted that as the record of the petitioner was not available, it is

not possible for the respondents to make submissions relating to the order

of discharge. It is further submitted that the petitioner has preferred the

petition and put up his claim after a delay of almost 28 years, whereas the

record of the petitioner was destroyed as per rules. Further it is submitted

that as the petitioner was discharged with no requirement of reserve

8 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -9-

service, he cannot claim the benefit of 6 years' reserve service and

pension accordingly. It is submitted that AFT has rightly rejected the case

of the petitioner.

11. The respondents have also filed their written statement and

submitted that as per
Regulation 121
of Pension Regulations for the Air

Force, 1961 (Part 1), the petitioner had not completed 15 years to earn

service pension and he was, therefore, only paid ` 2,402 on account of

service gratuity at the time of discharge. As per Rule 136 (a), reservist

pension could have been paid to a person who had completed 9 years

regular service and 6 years reserve qualifying service but, in fact, the

petitioner was not transferred to the reserve service and was, therefore, not

bound to be recalled for active service and his claim for grant of reserve

pension was, therefore, not in conformity with the Pension Regulations of

the Air Force and his reserve service of 6 years cannot be counted to make

his pensionable service.

12. It is further submitted that the petitioner filed OA after a

period of 30 years when his record has already been destroyed. It is stated

that as per discharge order, he was discharged "On fulfilling the conditions

of engagement on completion of 09 years of engagement and not being

required in regular service". Thus, 6 years service cannot be counted and

the AFT has rightly rejected his claim.

13. We have considered the submissions and the judgments cited

at bar by the petitioner.

9 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -10-

14.
In
Sohan Singh vs Union of India and another
AIR 1984

SC 498, Hon'ble the Supreme Court held as under:-

"4. On a careful consideration of the materials we are
satisfied that the order of discharge of the appellant was
passed mainly on the ground that the criminal case against
the appellant was pending and the authority concerned was
of the opinion that the appellant was likely to be convicted in
that particular case. The materials on record clearly indicate
that the pendency of the criminal case against the appellant
and the possibility of the appellant being convicted of the
said charges had greatly weighed with the authority and had
influenced its decision in directing the discharge of the
appellant. The note of the Commanding Officer re-
commending discharge on the ground that the appellant was
not suitable, records that 'the appellant was likely to be
convicted'. We have no hesitation in coming to the conclusion
that if the order of acquittal had been pronounced before the
date of the order of discharge of the appellant, the authority
concerned would have allowed the application for extension
of the term of service of the appellant. If extension had been
allowed, as in the normal course it would have been granted
if the order of acquittal were there at the relevant time, the
appellant would have been entitled to continue in service for
a further period of six years in the usual course. Out of the
said period of six years the appellant in view of the
provisions of D.I. Rules had in fact served for a little over a
year before he was actually discharged."

15.
In
Writ Petition No. 166 of 1990 - Nirvair Singh vs Union of

India and others
(2001 (3) CLR 442), Bombay High Court has examined

the case relating to the naval staff of Indian Navy and the issue was with

regard to discharge orders passed on expiry of engagement. The Court

10 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -11-

noticed that the concerned petitioners were ready and willing to complete

their 15 years of service but were discharged before they completes 15

years and held as under:-

"16. After the Apex Court's judgment, it is clear that the
period during which the petitioners were employed as
artificer apprentice is required to be computed for pension
and gratuity. Further, as per circular dated 9th August 1976
the Petitioners were required to be given chance of getting
re-engagement for a limited period so that they can complete
the qualifying service for pension. However, Petitioners were
not permitted to complete 15 years of service and they were
illegally discharged. The Petitioners also sought interim
relief, but that was also opposed at that time on the ground
that the main question was pending before the Apex Court.
Hence, for no fault of the Petitioners and for the fault of the
Respondents, the Petitioners were not permitted to complete
15 years of qualifying service. In such a situation, the only
way which is open is to direct the Respondents to consider
that the petitioners have completed the qualifying service of
15 years for the purpose of getting pensionary benefits, as the
petitioners were not permitted to get reengagement for a
limited period because of the wrongful insistence by the
Respondents that they must accept re-engagement for a
period of five years. Further, the Regulation itself empowers
the Competent Authority to condone the deficiency in service
for eligibility to service pension upto a period of six months.
We would further note that in Writ Petition Nos. 166, 171,
221, 223 and 365, all of 1990, 268 and 312 of 1991, the
seven Petitioners would have completed 15 years of service if
their service prior to attaining the age of 17 years is taken
into consideration. With regard to the remaining ten
Petitioners in Writ Petition Nos. 164,165, 168, 169, 170, 172,

11 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -12-

222, 224, 225 and 369, all of 1990, if their service prior to
the age of 17 years is taken into consideration, they would
have completed more than 14 years of service. If the said
period is not taken into consideration, they have completed
more than 13 years and 6 months of service or 14' years and
few days in some cases. For the aforesaid reasons, it is
directed that the Petitioners be considered to be in service for
a period of 15 years for the purpose of getting pensionary
benefits as at this stage, after lapse of 8 years, it would not be
proper to direct the Petitioners to serve the Navy for the
remaining period by opting re-engagement for one year or
few months more."

16. The Larger Bench of Hon'ble the Supreme Court in
Deokinandan

Prasad vs The State of Bihar and others
AIR 1971 SC 1409, held that

right to pension is property in terms of
Article 19 (1)(f)
and
31 (1)
of the

Constitution of India and right to pension flows from the Rules and not the

order granting pension. Hon'ble the Supreme Court in the aforesaid case

held as under:-

"28. The respondents have not taken up the position that the
officers like the petitioner are not entitled to pension. A
reference to Rule 5 of the Pension Rules shows that the
officers mentioned therein are entitled to pension. There is no
controversy that the petitioner is an officer in the Education
Department of the Bihar 'Education Service. It is item No. 3
of the Schedule to Rule 5. Rule 42 declares that every pension
shall be held to have been granted Subject to the conditions
contained in Chapter VIII. It is not the case of the
respondents that Chapter VIII which applies to re-
employment of pensioners, has any relevancy to the case on
hand. We have already referred to Rule 46. Under that rule a
Government servant dismissed or removed for misconduct,

12 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -13-

insolvency or 'inefficiency is not eligible for pension. But that
rule clearly contemplates that action by way of dismissal or
removal in respect of the three matters mentioned therein has
already taken place according to law. The bar under Rule 46
will operate only when the conditions mentioned therein are
satisfied. In fact the consequences envisaged under the rule
flow from the action already taken. Rule 129 provides for the
payment of superannuation pension to a Government servant
entitled or compelled by the rules to retire at a particular
age. Rule 134 clarifies the payment of retirement pension to a
Government servant permitted to retire after completing
qualifying service for 30 years or any such less time as may
for any special class of Government servants be prescribed.
Rule 135 provides for Government servants mentioned in
Rule 5 to be entitled on their resignation being accepted to a
retiring pension after completing qualifying service of not
less than 25 years. Rule 146 provides the scale of pension for
Government servants mentioned in Rule 5. We have only
referred to some of the important rules to show that the
payment of pension does not depend upon the discretion of
the State; but, on the other hand, payment of pension is
governed by the Rules and a Government servant coming
Within the Rules is entitled to claim pension. The order dated
June 12, 1968 has to be quashed in view of the fact that the
foundation for the said order is the one based on the order
dated August 5, 1966, which has been quashed by us. When
the order dated August 5, 1966 can no longer survive, the
order dated June 12, 1968 quite naturally falls to the ground.

The last question to be considered, is, whether the right to
receive pension by a Government servant is property, so as to
attract
Articles 19(1)(f)
and
31(1)
of the Constitution. This
question falls to be decided in order to consider whether the
writ petition is maintainable under
Article 32.
To this aspect,

13 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -14-

we have already adverted to earlier and we now proceed to
consider the same."

17. In K. R. Erry vs State of Punjab ILR 1967(1) Punjab &

Haryana 278, Full Bench of this Court held as under:-

"I am inclined to take the view that the right to
superannuation pension--including its amount--is a valuable
right vesting in a Government servant, and before that right
is prejudicially affected, he is entitled to a notice to show
cause against the proposed cut: such appears to me to be the
scheme of the Rules read as a whole. The fact that a right of
appeal has been conferred on an aggrieved Government
servant in this respect would seem to lend additional support
to this View. I do not find it easy on any rational ground to
deny generally speaking to an aggrieved party a right of
hearing before the original authority in a cause in which he
is given the right of appeal."

18.
In
Chet Singh vs State of Punjab
AIR 1977 (SC) 1494, it

was held as under:-

"4. The proviso to
Section 42
lays down that notice to
interested parties to appear and opportunity to be heard are
conditions precedent to passing of an order under
Section 42
.
The fact that the Additional Director was satisfied that the
respondent did not have an opportunity of being heard due to
his illness, seems to us to amount to a finding that the proviso
could not be complied with so that the previous order could
not be held to be an order duly passed under
Section 42
of
the Act. It could be ignored as "non est". The view taken in

Harbhajan Singh
's case (supra) would not apply to the
instant case although
Section 42
of the Act, does not contain

14 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -15-

a power of review. Orders which are "non est" can be
ignored at any stage."

19.
In
Ajit Singh vs Union of India and others
Law Finder Doc

Id# 4605 Delhi High Court observed that discharge could not be sustained

under Rule 13 passed by the Commanding Officer as there was no consent

given by him. The relevant extract reads as under:-

"5. On a perusal of the Petitioner's Certificate of Service,
it is evident that he was Discharged by order of the
Commandant AMC Centre, Lucknow, in consequence of his
erroneous assumption of the Petitioner's "completion of the
terms of engagement under Army Rule 13(iii)(i) 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 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 has 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 fulfill
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 save in the
Army Medical Corps, 380 days could not be taken into

15 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -16-

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 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."

20. A look at the order of discharge as quoted above reflects that

the petitioner had been discharged by applying Rule 13 (ii) of the General

Statutory Rules and Orders of Air Force and it would be apposite to quote

relevant extract of Rule 13, which is as under:-

"13. Authorities empowered to authorize discharge. - The
authorities specified in column 3 of the table below shall be the
authorities competent, in respect of the persons specified in column
1 and for the causes and in the manner specified in columns 2 and 4
respectively, to discharge from the service persons subject to the
Act. Any power conferred by this rule on any authority may be
exercised by any higher authority.

Class Cause of discharge Competent Special Instructions
authority to
authorise discharge
Officers of the All causes of The Governor A notification in the Official
Indian Air discharge General in Council Gazette of the retirement of an

16 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -17-

Force officer, the relinquishment of
his commission etc. shall be
deemed to be a discharge
within the meaning of sub-
section (2) of
section 2
of the
Act.
Persons (i) At his own Commanding To be carried out in
enrolled under request on transfer Officer accordance with the
the Act who to the pension conditions of enrolment and
have been establishment. with
section 17
of the Act and
attested. (ii) At his own Commanding Rule 10.
request on Officer
fulfilling the Ditto
conditions of his
enrolment.

Thus, the Commanding Officer in terms of Rule 13(ii) discharged the

person enrolled under the Act, who have been attested at his own request

on transfer to the pension establishment or on fulfilling the conditions of

his enrolment or having been found medically unfit for further service.

Merely because a person who fulfills the conditions of enrolment, he

cannot be discharged by the Commanding Officer without there being a

request. Keeping in view the specific admitted stand that the petitioner

had not made any request for being discharged on fulfilling the conditions

of enrollment, the order passed on 09.02.1972 is found to be illegal.

21. We also find that as per AFI (supra) the Officer was required

to take a decision on completion of 9 years service whether to continue as

an individual. It is an admitted position that the services of the petitioner

have been extended after 9 years for a further period from 27.12.1971 to

28.03.1972 i.e. 93 days. The sanction for extension has been given on the

day when the decision was taken to discharge him. As per AFI (supra),

once an extension has been given, the same would be for a period of 6

years, that is till he completes 15 years of service. There is no provision

for extension of service for 93 days alone.

17 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -18-

22. This Court also noticed that the petitioner completed 9 years

of service on 26.12.1971 when the 1971 war was in force and it appears

that only after the emergency was lifted that the petitioner has been

discharged in 1972. In the opinion of this Court, orders could not have

been passed to the detriment and disadvantage of a defence personnel in a

manner that he is deprived of his pension.

23. From the perusal of the judgments, which have been quoted

hereinabove, it is apparent that pension has to be treated as a personal

right of an individual for the service which he rendered with the State.

Once the rules provide for granting benefit of 6 years as reserve service

and 9 years as regular service (before the AFI came into operation) i.e.

July, 1969, a defence personnel was entitled to continue in service upto 15

years after the AFI came into operation with existing service of defence

personnel to be allowed to continue after 9 years upto 15 years provided

they have been atleast promoted to the post of Corporal. It does not sound

to reason to deprive the petitioner, who had been promoted to the rank of

Sergeant, to be given the benefit of 15 years of pensionable service for the

purpose of qualifying service.

24. We would not, therefore, look into or examine the reasons for

denying continuity to the petitioner upto 15 years in the absence of record

which is stated to have already been burnt/ destroyed. But at the same

time considering that the petitioner had already been promoted to the post

of Sergeant and no reasons are coming forward in the order discharging

him after he had put in more than 9 years of service, we hold him to be

18 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -19-

entitled to the benefit of complete 15 years of service for the purpose of

pension alone. Denying him the right of reservist pension is also found to

be without any reason as held by Hon'ble the Supreme Court in
Sohan

Singh
's case (supra). The petitioner was required to be treated for the

purpose of reserve service and we find that after he completed 9 years, he

was allowed to be continued till emergency was lifted. In view thereof, the

benefit was required to be given to him.

25. The question now arises whether he has to be given reservist

pension or his period of service deemed to be of 15 years ?

26. In the opinion of this Court and in view of the fact that the

record is not available and the petitioner has approached this Court

belatedly and we have decided not to examine the question relating to the

extension of service of the petitioner after he completed 9 years and 93

days but at the same time we have also held the order of discharge to be

illegal and contrary to the provisions of Rule 13 (ii) of the Rules and hold

that the Commanding Officer could not have discharged him, he would be

entitled to all consequential benefits as he was in continuous service. His

discharge order having been quashed, he would be entitled to full pension

on completion of his full service on attaining the age of 58 years. The

order passed by the AFT is found to be laconic. It has failed to examine

the main issue and has only dealt on the issue relating to reservist pension.

Since the order of discharge dated 09.02.1972 itself is found to be void ab

initio and non est, having been passed by an officer who was incompetent

to pass the same there being no consent on the part of the petitioner for

19 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -20-

discharge, the orders passed by the AFT is found to be not sustainable in

law and the same is set aside.

27. In view of the above and taking into consideration that denial

of pension also takes away the Fundamental Right of the petitioner, we do

not deem it appropriate to remand the matter to the AFT at this stage and

direct the Union of India to release the pension of the petitioner

considering him to have served the Air Force on the post of Sergeant upto

the age of 58 years. Accordingly, his pension shall be calculated by

notional calculation of his salary and he would be entitled to pension from

the date he attained the age of 58 years. No arrears of salary shall be paid

to him for the period he deemed to be in service as he had actually not

performed his duties for the said purpose. The pension, however, shall be

actually calculated and paid with all arrears from the date the petitioner

completes 58 years. The other retiral benefits shall also be paid to him

after deducting the gratuity amount which had already paid to him. No

interest would be payable on the aforesaid amount as the petitioner has

approached this Court belatedly and scales of justice would, therefore, be

weighed equally by not awarding interest on the arrears of pension.

28. The exercise shall be conducted within a period of four

weeks by the Defence Accounts Section on the basis of documents which

have been placed before this Court. The petitioner shall make available

the documents which he has in his possession relating to his service to the

Defence Accounts Section and the pension shall not be denied merely

because records of the petitioner have been destroyed.

20 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::

Neutral Citation No:=2024:PHHC:052666-DB
CWP No. 17312 of 2014 2024:PHHC:052666-DB -21-

29. The writ petition stands disposed of accordingly.

30. All pending applications shall stand disposed of.

31. No costs.

(SANJEEV PRAKASH SHARMA)
JUDGE

19.04.2024 (SUDEEPTI SHARMA)
VS JUDGE

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

21 of 21

::: Downloaded on - 23-04-2024 22:46:44 :::