Rajasthan High Court - Jaipur
Union Of India And Others vs Ex-Subedar Naurang Ram Bugalia on 1 June, 2001
Equivalent citations: 2001(3)WLC4
Bench: Ar. Lakshmanan, Ashok Parihar
JUDGMENT Parihar, J.
(1). The person, actively served the Indian Army for 34 years and retired on 18.8.1973, on attaining the age of superannuation, still knocking the doors of the Court to get his due pensionary benefits.
(2). The respondent - Ex-Subedar Naurang Rain Bugalia was enrolled in the Indian Army in Rajputana Rifles as an Infantry Soldier on 20.5.1936, wherein, he has served for a period of 10 years and 192 days from 20.5.1936 till 27.11.1946. After the Second World War been over, he was released from the Raj Rifles as a Subedar with minimum pensionary benefits of mustering out pension @ Rs.45/- per month.
(3). The respondent - writ petitioner was again called for to join Ihe Indian Army as Subedar during the period w.e.f. 31.8.1948 to 19.5.1951 due to hostility between India and Pakistan. The respondent was discharged w.e.f. 19.5.1951 after serving the Army for two years and 252 days. Subsequently, the services of the respondent were required by the Army Head-quarters (AG's Branch- MT-5) in Recruiting Organisation and was enrolled third time as a Jamadar-(now Niab-Subedar) on 28.7.1952. He was also promoted to the rank of Subedar while serving with the Recruiting Organisation w.e.f. 24.12.1963. On attaining the age of superannuation, he was discharged, from Recruiting Organisation w.e.f. 18.8.1973 after serving the Army for 21 years and 21 days.
(4). Though in the first spell of service i.e. from 20.5.1936 till 27.5.1946 he was allowed minimum pensionary benefits, as per rules, however, for the subsequent periods, he was not granted any pension, though he had served for more than 23 years in the Indian Army for the subsequent period also. The initial mustering out pension was enhanced from time to time and was further stepped up to Rs.1050/- per month w.e.f. 1.3.1992. Arrears of stepping up of the pension were also paid to the respondent. Subsequent stepping up of the pension was recalled by the authorities concerned on the ground that the respondent petitioner did not complete 21 years of qualifying service, as such, a recovery of the sum already paid was ordered. The respondent petitioner was informed accordingly by the State Bankof Bikaner & Jaipur vide its letter dated 17.3.1994. Aggrieved by the action of the appellants in not paying the pension for the entire period of the service and further recovery of the amount of stepping up, the respondent petitioner filed a writ petition before this court on 23.3.1994 with the following prayers:-
"(a) By an appropriate writ, order or direction the respondents may be directed to grant pension applicable to the petitioner by virtue of his rank of Subedar and length of service w.e.f. 18.8.1973. When the petitioner did not opt to count his former service he is entitled for 2nd pension for Subedar for 23 years. Further, 15% interest on arrears of long outstanding pensionary benefits, be ordered for payment within a period of 60 days from the date of decision.
(b) By an appropriate writ, order or direction, the petitioner may be granted an exemplary damage in terms of money to the tune of Rs.l lac and the same may be recovered from the concerned officer found guilty of negligence, in performance of official duties in the Records Office the Jat Regiment, Bareilly, after a due inquiry into the facts and circumstances of the case.
(c) By an appropriate order or direction the respondent No.2 may kindly be advised to release the former service pension of the petitioner, which had arbitrarily been stopped and illegal recovery in lump sum made from the pension account of the petitioner at Slate Bank of Bikaner & Jaipur, CHIRAWA, Distt-Jhunjhunu (Raj). (Annx.5) is referred for the perusal of the Hon'ble Court."
(5). In reply to the writ petition, it was submitted on behalf of the appellants -Union of India that as per para 213 of Pension Regulations Part II 1940, the respondent was not entitled for pension for the subsequent period since he was allowed to draw his pension granted for the earlier period in addition to pay and allowances admissible to Junior Commissioned Officers (JCOs) enrolled in Recruiting Organisation. It has further been submitted that since the respondent had not opted for pension while employed in the Recruiting Organisation at the relevant lime, he was not entitled for pension for the period from 28.7.1952 till 18.8.1973 i.e. the period of 21 years and 21 day.
(6). The learned Single Judge, while considering, the entire facts and circumstances, allowed the writ petition with the directions, which are reproduced as under:-
"As a result of the above discussion, the writ petition is allowed and the respondents are directed to release the consequential benefits such as gratuity and pension including the arrears of pension and revised pension to the petitioner to which he is entitled consequent upon his retirement from defence services on attaining the age of superannuation w.e.f. 18.8.1973 in accordance with the Rules. As regards the pension he will be entitled to payment of the same including the arrears from due date after calculating revised pension at the rate of Rs.375.00 per month w.e.f. 1.1.1986 onwards. There will be no order as to costs. The said amount as admissible to the petitioner in accordance with the Rules as applicable to petitioner's case shall be payable within a period of eight weeks from the date of receipt of certified copy of this order. It is further directed that white computing the arrears of pension including the benefit of stepped up or enhanced pension, the amount as admissible to the petitioner on account of pensionary benefits for the period of three phases as referred to above shall not be separately calculated on phasewise basis but shall be consolidated and merged together and thereafter the final figure shall be arrived at after calculating the benefits of all the three phases as take together and as admissible to the petitioner in accordance with the Rules. The petitioner shall be entitled to the benefit of past service rendered to the respondents in this regard."
(7). Thus, aggrieved by the order of the learned Single Judge, the present appeal has been filed by the appellants.
(8). The only contention as raised by Mr. Rafiq, learned counsel for the appellants, has been that as per relevant rules, since the respondent had not opted for pension at the time of his re-employment in the Recruiting Organisation and was drawing salary in addition to pension for his initial period of 10 years and 192 days, he was not entitled for any pensionary benefits for the subsequent periods, moreso, when there were two breaks in service first in the year 1946 and then in the year 1951.
(9). After having considered the submissions made by learned counsel for the parties, we have carefully gone through the material on record as also the-relevant provisions of the Rules.
(10). The main provision as relied upon by the appellants i.e. Rule 213 of the Pension Regulations (Part II) 1940 is reproduced here as under:-
"213. Counting of former service for pension and gratuity:-
(i) Combatants and enrolled non-combatants including followers governed by military rules for pension purposes, who have former service to their-credit or are transferred from one unit or formation to another with a change in terms of service or whose status is changed while serving, may be allowed by a competent authority to reckon their former service towards pension and gratuity to the extent specified in the table below, subject to the fulfilment of the conditions stated in column 5 thereof and provided that they were not dismissed from their former services.
(ii) The conditions 1, 2 and 3 referred to in column 5 of the table are as follows:-
Condition 1;
After re-enrollment, the individual shall have completed any consecutive period of three years service without two red ink entries or a court martial conviction.
In the case of combatants re-enrolled as such and transferred to the Reserve before completing 3 years colour service since re-enrollment, the period of 3 years for the purpose of this condition may be either wholly or partly with the Reserve.
Condition No.2:
At the lime of re-enrollment the individual shall have declared his former service and cause of discharge therefrom and elected to count that service towards pension or gratuity. The election once made shall be final.
Condition No.3:
The individual shall have refunded any gratuity received in respect of his former service is not more than 36 monthly installments from his pay commencing from the date of re-enrollment.
(iii) In individual cases, a competent, authority may relax, at his discretion, condition 1.
(iv) Individual of the classes referred to in clause (i) above who have former qualifying service in the I.A.F. to their credit shall reckon such service for military pension and gratuity under the conditions and to the extent that such service qualifies under the rules regulating the grant of I.A.F. pensions and gratuities."
(11). The terms and conditions of service of Extra Assistant Recruiting Officers employed in the Recruiting Organisation has also been placed on record by the appellants. The conditions in regard to pension and gratuity to such officers as mentioned in the letter dated 8.9.1960 issued by the Ministry of Defence, Government of India, New Delhi are reproduced here as under:-
"PENSION & GRATUITY
7. Civilian EAROs including Ex-JCOs serving in civil capacity will be eligible for pension and gratuity in accordance with the relevant Rules in CSR. In the case of death and injury attributable service, they will be governed by the same Rules as laid down for civilians paid from Defence Service Rslimates.
Ex-JCOs serving in military capacity will be eligible for the grant of disability and family pension (including children allowance and death gratuity) under the relevant military rules as are applicable to retired JCOs re-employed in other Arms/Services. Those who are allowed to draw their pension in addition to pay and allowances will not be eligible for any pensionary benefit for service as EAROs. However, those who were discharged from their previous service with or without a gratuity will be allowed to combine their former service with the service rendered as EAROs for the grant of pension/ gratuity under AI-l/S/53, subject to the conditions laid down in Rule 213, Pension Regulations (Part 11) and also under A1 17/A/57."
(12). Mr. Rafiq, learned counsel for the appellants, could not justify the action of the Department in making distinction between the ex-JCOs serving in civil capacity and ex-JCOs serving in military capacity so far as laying different conditions for the above two categories in payment of pensionary benefits. Even otherwise, the respondent had put in more than 21 years of service for the period from 28.7.1952 till 18.8.1973. He was independently entitled for pension for the above period since none of the alleged breaks in service were due to any fault of the respondent and he had rendered service to the nation for more than 34 years. In our opinion, the appellants were not justified in denying pensionary benefits to the respondent for the entire period of service rendered by the respondent in the Army. Even if there was no proper option at the initial stage, once the representation having been made, the authorities, looking to the total length of service, could have passed necessary orders granting relief to the respondent petitioner.
(13). It has further been brought on record that in compliance of the orders passed by the learned Single Judge, the appellants have already recovered a sum of Rs. 1,60,490/- on account of pension received during re-employed period and further the respondent has been paid a sum o f Rs.2,20,000/- as arrears of pension for which a PPO has been issued vide order dated 16.6.1999.
(14). Under such circumstances, taking into consideration the entirety of the facts of present case, when a person has received the fruits of his service of 34 years to the nation, we find no ground for any further interference of this court in the present appeal. The same is dismissed accordingly.