Rajasthan High Court - Jaipur
Union Of Indai And Ors vs Ram Chandra Meena on 12 May, 2017
Author: K.S. Jhaveri
Bench: K.S. Jhaveri
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 1009 / 2008
1. Union of India through Secretary, Ministry of Defence,
Government of India, New Delhi-110011.
2. The Chief of the Army Staff, Army Headquarters, New Delhi.
3. Controller of Defence, Accounts (Pension), Allahabad.
4. The Officer-in-Charge, Defence Security Corps Records, Mill
Road, Cannanore (Kerala).
----Appellant
Versus
Ram Chandra Meena son of Shri Banshidhar Meena, r/o 14, Abhay
Colony, Neem-ka-thana, District Sikar (Raj.).
----Respondent
_____________________________________________________
For Appellant(s) : Mr. R.D. Rastogi, Addl. Solicitor General with
Mr. Ashish Kumar & Mr. C.S. Sinha
For Respondent(s) : Mr. Amit Ojha
_____________________________________________________
HON'BLE MR. JUSTICE K.S. JHAVERI
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Judgment
12/05/2017
1. By way of this appeal, the Central Government has
challenged the judgment and order of the learned Single Judge
whereby the learned Single Judge relying on annexure-3 has
allowed the writ petition and directed the appellants to treat the
period of services of respondent original petitioner has 15 years
and 7 days and for granting pension and other retiral benefits.
2. Counsel for the appellant has pointed out that in view of the
decision of Supreme Court in the case of Santosh Devi vs. Union
of India (UOI) & Ors. AIR 2016 SC 2213 and more particularly
(2 of 5)
[SAW-1009/2008]
in para 16 it has been clearly prohibited that until there is 15
years of service the army personnel cannot be granted pension.
Para 16 reads as under:
"16. Having said that, we are of the view
that the entitlement of the appellant to
family pension has to be examined in the
light of the provisions of the Pension
Regulations for the Army 1961 read with
Government of India, Ministry of Defence
circulars dated 11.06.1985, 03.02.1998 and
lastly circular dated 12.11.2008. As
discussed earlier, in terms of Section 9, every
officer/ enrolled person when called out or
embodied or attached to the regular army
shall, subject to suitable adaptation, be
subject to the provisions of the Army Act
1950 and the rules and regulations made
thereunder. When an enrolled person is in
disembodied state, he is not subject to the
Army Act and is not entitled to pay and
allowances or other entitlement as also
medical allied benefits. Also their
disembodiment period is not counted as a
qualifying service even for service pension.
As per the existing rules, no family pension is
payable to the legal heir of a territorial army
personnel who died during disembodied state
and who has not put in pensionable service."
3. Learned counsel for the respondent has referred to the
decision of Supreme Court in the case of Veerendra Kumar
Dubey vs. chief of Army Staff 2015 (4) SCT 816 and the
decision of Armed Forces Tribunal, Regional Bench Chennai in the
case of Ex-Sepoy M.Sanyasi Rao vs. Union of India & Ors. OA
No.25/2014 decided on 03.02.2015 where it has been observed
that reasons cannot be considered for the purpose of pension.
4. We have heard counsel for both the sides.
5. In the writ petition, the original petitioner has prayed for the
following reliefs:
(3 of 5)
[SAW-1009/2008]
"(i) to declare that the petitioner has
rendered qualifying service for pension and
therefore is entitled for service pension and
gratuity accordingly,
(ii) to direct the respondents to grant the
petitioner pension and gratuity treating his
service to be of 15 years and 7 days and to
pay him upto date arrears forwith alongwith
interest @ 24% per annum till actual
payment w.e.f. from the dates of payments
falling due to him."
6. The specific reply which has been filed by the respondent
before the learned Single Judge in para 2 & 3 reads as under:
"2. That as regards contents of para No. 2
of writ petition, it is submitted that the
petitioner was initially enrolled in 108
Infantory battalion (Territorial Army) on
24.3.76. He rendered 2 years and 199 days
embodied service for the following period:-
S.No. Period of embodied service no. of days
(a) 10 April,76 to 09 Nov. 1976 214
(b) 10 Dec.,76 to 09 March, 1977 90
(c)10 May,77 to 09 July, 1977 61
(d) 01 Jan., 78 to 31 March, 1978 90
(e) 11 May, 78 to 09 Oct.,1978 152
(f) 11 Oct. 78 to 10 Nov. 1978 31
(g) 01 May, 79 to 31 July, 1979 82
(Less: n S 10 days from 27 jun to 06 july,
79 due to leave without pay & allowances)
(h) 10 Jan. 80 to 09 March, 1980 60
(I) 01 April, 80 to 30 June, 1980 91
(j) 10 Jan., 81 to 09 March, 1981 59
--------------
Total: 530
---------------
He was discharged from the Territorial Army on 20.3.1981 under Territorial Army Act, 1948 and Rule 16 having been re-enrolled in Defence Security Corps.
3. That the contents of para No. 3 of the writ petition is not admitted as stated. The spetitioner was re-enrolled in Defence Security Corps on 11.3.1981 and was discharged from service on 31.3.1991 under (4 of 5) [SAW-1009/2008] Rule 13(3) item IIIrd (Service no. longer required) on Army Rules, 1954 on completion of term of engagement.
Extension was not granted to him as he failed to fulfill the eligibility condition because he had incurred four red ink entries during D.S.C. service as under:-
A) Awarded four days confinement to lines on 25.3.1981 for Commission and offence under Army Act Section 39 (Absent without leave for 3 days).
B) Awarded 10 days detention in Military custody on 3rd September, 1982 for an offence under Army Act Section 48 and 63. C) Awarded 14 days rigorous imprisonment on 29.1.1986 for an offence under Army Act Section 39(A) and 48(i) absent without leave for 3 days.
D) Awarded 7 days detention in Military custody on 8th October, 1986 for an offence as under Army Act Section 40(a). Thus he was not entitled to any extension of services and he was given discharge from D.S.C. service on completion of his initial terms of his engagement."
7. Taking into consideration the fact that there were four penalties which were imposed on the present respondent which have not been challenged by the original petitioner, it will not be appropriate to allow him to challenge and take advantage of the judgment of the Supreme Court in appeal preferred by the department. The judgments relied upon by the respondent original petitioner will not apply in the facts of the present case.
7.1. The order passed by the learned Single Judge is contrary to the decision of the Supreme Court in the case of Santosh Devi vs. Union of India (UOI) & Ors. (supra). Therefore, the order of the learned Single Judge is required to be quashed and set aside.
(5 of 5) [SAW-1009/2008]
8. The appeal stands allowed. The order of the learned Single Judge is quashed and set aside.
(VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J.
Asheesh Kr. Yadav/157