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Judgment
N. Paul Vasanthakumar, J.—Heard Mr. Perumbulavil Radhakrishnan, learned counsel for the petitioner and Mr. Haja Mohideen Gisthi,
learned counsel for the respondents. This Writ Petition is filed to quash the order of the first respondent issued in G.O.I. No. 1(9)/2006/D (pen-c)
dated 30.8.2006 and for a direction to the respondents to pay pension due to the petitioner from 19.4.1971 with interest at 8% per annum.
The case of the petitioner is that after pre-commission training in Poone, he was commissioned as an Emergency Commissioned Officer with the
rank of Second Lieutenant in the Artillery Regiment of the Indian Army on 3.5.1964. While on active service in field area, the petitioner sustained a
major injury on 26.3.1965 attributable directly to military duty. He was retained in low medical category until 19.4.1971 when he was medically
boarded out of service by a Release Medical Board and at that time the petitioner attained the rank of Captain and had put in 6 years 11 months
and 15 days of service.
2.1. According to the petitioner, initially the Under Secretary, Ministry of Defence by order dated 7.7.1975 sanctioned pension to the petitioner
counting pensionable service for 327 days, i.e., upto the date of injury. After prolonged correspondence and representations for about 28 years,
the second respondent by letter dated 28.9.1999 issued orders reckoning the period of entire service of 6 years 11 months and 15 days for
pension.
2.2. The second respondent further decided by an order dated 8.1.2010 that the service element of disability will be notionally fixed from the date
of commencement of pension, i.e., from 19.4.1971. However, pension will be calculated based on the minimum pay scale i.e., the pay on the date
of joining service. The second respondent also decided that no arrears of pension or interest will be payable, thus effectively blocking 40 years of
pension, except for 327 days, i.e., the accident free service.
2.3. The petitioner approached the Armed Forces Tribunal, Regional Bench, Chennai by filing Original Application No. 37 of 2011. The Tribunal
by order dated 4.11.2011 ordered that while calculating the qualifying service for the service element of disability pension, the qualifying service of
6 years 11 months and 15 days is to be reckoned as 7 years plus weightage as per Rules and not 6.5 years as calculated by the respondents by
order dated 30.8.2006, wherein it was also stated that no arrears of pension will be payable. The Tribunal further held that it has no jurisdiction to
go into the validity of the order passed on 30.8.2006 and granted liberty to the petitioner to challenge the order dated 30.8.2006 before the
appropriate forum within 3 months by order dated 4.11.2011. As per the liberty granted, the petitioner has filed this Writ Petition contending that
this Court alone is vested with the jurisdiction to go into the validity of the order dated 30.8.2006 and further contended that 6 years 11 months
and 15 days is to be counted for 7 years completed service apart from weightage service of 9 years.
The respondents have filed counter affidavit stating that the Writ jurisdiction is the only remedy available to the petitioner to challenge the order
dated 30.8.2006 as the Armed Forces Tribunal cannot decide the validity of the said order. In the light of the stand taken in the counter affidavit
filed on behalf of the respondents dated 19.11.2013 as well as the order passed by the Tribunal granting liberty to challenge the order before the
appropriate forum, we have decided to go into the merits of the contention raised by the parties.
It is not in dispute that the petitioner served for 6 years 11 months and 15 days before he was medically discharged from the Army. How the
broken period of service to be counted for pensionable service was decided by the respondents and it was assured that with effect from
22.4.1960, service rendered for 180 days or more was taken as half year for qualifying service. Similarly with effect from 28.6.1983, service
rendered for 3 months and above shall be calculated as a complete one half year and reckoned as qualifying service for determining the amount of
pension/DCRG.
It was further clarified by the Principal Controller of Defence Accounts (Pension), Allahabad in Group Order No. 1188 dated 10.12.1984
based on the clarification received from the Ministry of Defence vide letter dated 6.8.1984 addressed to the Chief of Army, Naval an Air Staff and
in the said clarification dated 6.8.1984, it is stated as follows:
I am directed to say that the President is pleased to decide that in calculating the length of qualifying service for the purpose of pensionary benefits,
a fraction of a year equal to three months & above shall be treated as a completed one half-year and reckoned as qualifying service for determining
the amount of pension and service/DCRG.
These orders will have effect from 28th June, 1983.
The existing provisions of the pension Regulations for the three Services may be deemed to have been amended in this respect to the extent of the
provisions of these orders. Formal amendment to the aforesaid Regulation will be issued in due course.
This issues with the concurrence of the Fin. Division of this Ministry vide their U.O. No. 2748/Pen of 1984.
Pursuant to the said clarification of the Ministry, implementation order was issued by the Principal Controller of Defence Accounts (Pension),
Allahabad, which reads as follows:
Govt. of India, Ministry of Defence''s letter No. B/38076/AG/PS4(a)/2190 (A) (pension/services) dated 6.8.84 on the above subject is
reproduced as Annexure to this Group Order for formation and guidance of all concerned.
It may be clarified here that ""a fraction of a year equal to 3 months and above shall be treated as a complete one half year period and reckoned as
qualifying service for determining the amount of pension. The qualifying service of 9 months or more but less than a year has treated as a complete
one year for purposes of pension."". The case of the qualifying service i.e., less than 15 years, condonation orders would be looked for and DCRG
assessed in such cases as per existing practice.
The affected cases may be dealt with accordingly.
On going through the above clarification issued by the Ministry of Defence, which is also implemented by the Principal Controller of Defence
Accounts (Pensions), Allahabad vide dated 10.12.1984, it is clear that the qualifying service of 9 months or more but less than a year to be treated
as complete one year for the purpose of pension. It is clear that atleast from the order dated 10.12.1984, the petitioner''s service of 6 years 11
months and 15 days should be reckoned as 7 years of service, apart from additional pensionable service, which has already been ordered.
In the light of the above clarification issued by the Ministry of Defence dated 6.8.1984 as well as the order dated 10.12.1984 of the Principal
Controller of Defence Accounts (Pension), Allahabad dated 10.12.1984, the order passed by the first respondent dated 30.8.2006 cannot be
sustained insofar as the petitioner is concerned. The respondents are also not justified in contending that there is delay on the part of the petitioner
in challenging the order. The payment of pension/enhanced pension is a continuous cause and it is being paid as a reward for the past service
rendered and the petitioner is paid a sum of Rs. 1,516/- per month from 1.1.1996 to 28.8.2006 and Rs. 2,349/- p.m., with effect from 30.8.2006
for life and the same was revised @ Rs. 7,210/- from 1.1.2006 for life. Hence, the Writ Petition is disposed of with a direction to the respondents
to treat that the petitioner has completed 7 years of pensionable service along with 9 years of additional pensionable service already reckoned to
the petitioner''s case by the Department. The petitioner''s claim for arrears of pension is justified only from the date of such clarification issued, i.e.,
on 10.12.1984. The respondents are therefore directed to calculate the pensionable service of the petitioner as 7 years of actual service and
additional weightage of 9 years, totalling 16 years of service. Based on the aforesaid 16 years of service, which is available to the petitioner, the
respondents are directed to sanction and pay military pension to the petitioner from 10.12.1984, within a period of three months form the date of
receipt of a copy of this order and while calculating the arrears of pension payable to the petitioner, whatever pension already paid to the petitioner
upto the date of calculation can be adjusted and the balance amount has to be paid to him. The arrears payable to the petitioner is directed to be
paid within a period of four months from the date of receipt of a copy of this order, failing which the respondents shall pay the arrears of pension
with 8% interest per annum on the expiry of four months period. No costs.