Sunder Singh vs Union Of India And Others

M.A No. 342 of 2021

Keeping in view the averments made in the Miscellaneous Application and finding the same to be bona fide, in the light of the decision in Union of

India and others v. Tarsem Singh (2008) 8 SCC 648, the instant M.A is allowed condoning the delay in filing the O.A.

O.A No.278 of 2021

The applicant through the medium of this 0.A is seeking the following reliefs:

(i) Direct the respondents to grant second service pension of DSC to the applicant after condoning the shortfall/deficiency of 302 days in qualifying

service of pension in DSC; and

(ii) Direct the respondents to pay the due arrears of second service pension with interest Cd) 12% per annum from the date of retirement with all the

consequential benefits.

The applicant was re-enrolled in the Defence Security Corps (DSC) on 27.12.2004 and was discharged from service on superannuation on

28.02.2019, after serving 14 years, 02 months and 01 day. There is a shortfall of 302 days against the mandatory 15 years of qualifying service, which

made him ineligible for the second service pension for the service rendered with DSC.

Having heard the learned counsel for the parties and perused the documents available on record, we are of the considered view that the question

involved in this case is no longer res Integra as the same had already been settled by this Tribunal in the case of Bhani Deviv,Union of India and

others (0.A. No. 60 of 2013 decided on 07.11.2013), Ex Nk Vijay SinghVs. Union of India and others (0.A No.272 of 2018 decided on 14.10.2020)

and the Kochi Bench of this Tribunal in Mohanan. Tv.Union of India and others (0.A No.131 of 2017 decided on 12.10.2017). In Shan/ Devi(supra), it

was held that the provisions for condonation of shortfall in service under Regulation 125 of the Pension Regulations for the Army 1961 (Part I) are

equally applicable to Armed Forces personnel serving in DSC making them eligible for grant of second service pension. Against the order in Ex

NkMohanan T(supra) granting condonation of shortfall of DSC service, subsequent to the issue of GoI (MoD) letter dated 20.06.2017, the

respondents had approached the Hon'ble Supreme Court by filing Civil Appeal (Diary) No.27100 of 2018, which was dismissed vide order dated

27.08.2018 and thus the matter has attained finality. This Tribunal in Ex Nk Vijay Singh (supra), while referring to the Full Bench decision of this

Tribunal in Smt Shama Kaur v.Union of India and others(0.A No.1238 of 2016 decided on 01.10.2019), which dealt with the question whether there

should be condonation of deficiency of service for grant of second pension of DSC like Regular Army personnel interms of Government of India

(Ministry of Defence) letter dated 14.08.2001 and Para 44 of the Army Pension Regulations or be dealt with in terms of Government of India

(Ministry ofDefence) letter dated 20.06.2017, quoted para 44 of that judgment which reads as under:

(a) The aspect has been discussed in full detail in our discussion above on merits. It needs no further emphasis that the DSC is a part of the Army and

is also treated as a ""Corps"" under Rule 187(1)(r) of the Army Rules, 1954, read with Section 3(w) of the Army Act, 1950. Further the same

pensionary provisions as applicable to the three defence services are applicable to the DSC and all such personnel taken together are referred as

Armed Forces Personnel"" as becomes clear from the opening paragraphs of Letter No. 1(5)87/D (Pension/Services) dated 30.10.1987, Letter No.

1(6)198-D(Pension/5erv1ce5) dated 03.02.1998, Letter No, 17(4)] 2008(2)/D(Pen/Pol) dated 12.11.2008 and Para 3.1 of Letter No. 17 (02)/2016-

D(Pen/Pol) dated 04.09.2017 issued by the Ministry of Defence after the 4th, 5`h, 61i7 and 77 Central Pay Commissions respectively.

(b) The matter has already been decided by Constitutional Courts and this Tribunal and implemented by the Respondents, especially in the decision of

the Hon ble Punjab & Haryana High Court in Union of India v. LNK DSC Mani Ram (LPA No. 755 of 2010 decided on 05.072010), the Honible

Delhi High Court in Ex Sep Madan Singh v. Union of India (WP (C) No. 9593 of 2003), this Bench in Bhani Devi V. Union of India and others (0.A

No. 60 of 2013 decided on 0711.2013) and the Kochi Bench in Mohanan T v, Union of India (0.A No. 131 of 2017 decided on 12.10.2017). The

letters purportedly amending the relevant provisions have also been held contrary to law vide the above. In light of this, coupled with the merits of the

matter discussed in the instant judgement, there can be no scope of any doubt that DSC personnel are fully entitled to condonation of deficiency of

service for their second spell of service at par with other Army personnel. In fact, as discussed in the main body of this judgement, DSC personnel re

enrolling themselves by opting not to count their past military service have no connection at all with their past service as far as pension is concerned

and their service in DSC Is fresh service delinked from their past service.

(c) Further, the Respondents have themselves stated before the Honble Supreme Court in Chattar Pal (supra) that condonation upto one year is

possible, and once Constitutional Courts, including the highest Court of the land, have upheld the proposition, it is beyond the scope of any bench of this

tribunal to hold or comment otherwise. We hence answer this question in the above terms.

Taking into account the aforesaid factual and legal aspects, we are of the view that the facts of this case are squarely covered by the decisions in

Bhani Devi and Ex Nk Vijay Singh(supra) and, therefore, the shortfall of 302 days to complete 15 years of qualifying service in DSC by the applicant

to get second service pension is liable to be condoned.

The instant 0.A is, therefore, allowed with the following directions:

(i) The shortfall of 302 days of qualifying service for second service pension is condoned;

(ii) Subject to verification of records, the respondents are directed to issue a corrigendum PPO to the applicant granting second service pension for the

service rendered by him in DSC from the date of his discharge;

(iii) The respondents are directed to calculate and pay the arrears of second service pension with effect from the date of his discharge from DSC; and

(iv) The arrears shall be paid within four months from the date of receipt of a copy of this order. In default, the applicant will be entitled to interest @

6% per annum till payment.

No order as to costs.