Hazara Singh Vs. Union of India and Others

L.T. Gen. N.S. Brar (Retd)

This writ petition filed in the Honble Punjab and Haryana High Court is taken up on transfer to this Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007.

The petitioner was enrolled in the Army on 13.02.1936 and was discharged as a Havildar on 14.02.1957 on completing terms of engagement. He was granted service pension wef 15.02.1957 for 21 years pensionable service. He was re enrolled in the Territorial Army (TA) on 11.03.1958 and was discharged as superannuated wef 11.09.1968 on attaining the age of 50 years, He had rendered 10 years and 142 days of embodied service in the TA.

The petitioner states that the service rendered with the TA is reckonable towards enhanced pension under Regulation 121(a) read with Regulation 289 of the Pension Regulations for the Army, 1961. These, as also Section 2(1)(e) of the Army Act, have been reproduced in the petition as under

121. Pensioners re-employed in a service capacity otherwise than in an emergency.

(a) If re-enrolled or if re-employed in an appointment the incumbent of which is normally required to be enrolled under the Army Act, pension shall be held in abeyance. Re-employed service shall count for enhanced pension, if any, under the applicable regulations. On release from re-employment either the pension which was held in abeyance or any other pension earned by virtue of further service shall be paid.

289. General provision.-

The grant of pensionary awards to members of the Territorial Army shall be governed by the same general regulations as are applicable to the corresponding personnel of the Army except where they are inconsistent with the provisions of regulations in this chapter.”

2. Persons Subject to the Act

The following persons shall be subject to this Act wherever they may be, namely :-

(a) to (d) xx xx xx

(e) Officer of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub-section (1) of Section 9 of the Territorial Army Act, 1948.

xx xx xx xx

The petitioner continued to draw pension from 15.02.1957 as also during his service in the TA up to 11.09.1968. However he was not given any enhanced / second pension for his 10 years and 142 days TA service. The Government of India issued instructions for grant of One Time Increase (OTI) in pension for Armed Forces Personnel who had retired prior to 01.01.1986 vide letter dated 16.03.1992 (Extracts at Annexure P3A). Since the petitioner had retired prior to that date he had applied for payment of OTI to the DPDO, Ropar. Grant of OTI was declined by the DPDO vide letter dated 18.06.1992 on the grounds that (a) He had been re employed / re enrolled in Central Government Department / Office, that is, as a pensioner from Regular Army service, and (b) He was in receipt of second service / retirement superannuation pension in addition to military pension.

As the petitioner was not in receipt of second or enhanced pension for his TA service as stated by the DPDO, he had represented to the Artillery Records who clarified vide letter dated 04.07.1995 that as he had put in more than 10 years service in Central Govt department / office, ie TA, he had earned second pension and was not eligible for OTI (Annexure P4). Then it was further explained by the Artillery Records vide their letter dated 02.08.1995 (Annexure P5) that as per Govt Instructions dated 11.06.1985, TA personnel had become entitled to service pension after rendering 15 years of qualifying service, including Army service. Such TA personnel were required to exercise one of the options ie

to continue to draw military pension and retain gratuity received on discharge from military service in which case their former military service were not counted as qualifying service for pension under the above order.

Or

to cease to draw pension henceforth and refund the service pension already drawn during the TA service and gratuity including DCRG, if any, drawn for the previous military service and count the same for grant of pension under the above orders.

Since the petitioner had not exercised any option, his case could not be considered. Thereafter on the advice of the CCDA(Pensions) he had forwarded the option with statement of case through the Artillery Records to obtain Government sanction (Annexure P10). Nothing was heard. Reminder dated 18.06.2997 (Annexure P11) elicited no response. Legal notice under Section 80 CPC (Annexure P13) was responded vide letters dated 20.05.1998 (Annexure P14) and 25.06.1998 (Annexure P15), yet no action was taken. Writ petition was filed thereafter seeking directions to grant him enhanced / second pension for his TA service under the Pension Regulations or Govt letter of 11.06.1985.

Written statement has been filed by the respondents and the periods of service in the regular Army and TA are not in dispute. It is than stated that the petitioners case was taken up for waiver of time limit for exercising option and Government sanction was accorded vide Govt of India letter No 68099/GS/TA3 (a) (OPT)/1734/SO/O/(GS1) dated 17.11.1998. It was then clarified by the CDA (Pension) that if Government waives the time limit for exercising option, and he is allowed to count his former military service, he would be sanctioned pension with effect from 11 June, 1985 @ Rs.50/- per month for the rank of Hav Group ‘G and pension already drawn for military service with effect from 14 Feb. 1957 to 10 June, 1985 approximately amounting to Rs.17000/- (excluding Dearness relief) will be recoverable from him. Arrears on account of increase in pension will be payable to him from 11 June, 1985 to 31 December, 1985 and thereafter will be no change in the periods as consolidated pension in both cases will be minimum of Rs.375/- per month. As such the amount of arrears which will become due to him would be for less than the amount which would be recoverable as a result of counting of former military service towards Territorial Army service.

When the case was listed before the Honble Punjab and Haryana High Court on 02.11.1999, the Bench ordered.

“ In view of paragraphs 4 and 5 of the written statement filed on behalf of respondents, it appears that case of the petitioner has been favourably considered and sanction granted to waive time limit for exercising option as a special case for counting former Army/Territorial Army Service for pensionary benefits; and that consequential steps are being taken for issuance of Corrigendum PPO.

Respondents are directed to take the necessary steps within four weeks.”

On 05.09.2000, it was ordered as under:-

“Learned counsel appearing on behalf of the petitioner says that there is no justification in law for the respondents to require option for final determination of the question noted in our order dated 02.11.1999 and the petitioner is not inclined to give any such option.”

Thereafter the case has come to be transferred to this Tribunal.

Regulation 121(a) of the Pension Regulations for the Army, 1961 has been re produced by the petitioner as noted above. However, Regulation 121 (b) also needs to be considered to comprehend its provisions fully. Regulation 121 (b) reads as under:-

121(b). If not re-enrolled or if re-employed in an appointment which does not require him to be re-enrolled, pension shall be admissible in addition to pay of appointment. Re-employed service shall not count for enhancement of pension or for gratuity.

We may note that the petitioner was not re-enrolled or re-employed in the Territorial Army (TA) under the Army Act. He was enrolled under the TA Act, 1948. He had also continued to draw his pension for former Army service.

We may also note that the TA personnel came to be entitled to pension with effect from 1985. The notification allowed former military service to be counted for purposes of qualifying service for pension in the TA. On the other hand, there is no provision for TA service to be counted with any former military service. Then, there is a clear provision for individuals drawing service pension from the Army to opt for discontinuing such pension and the service rendered to be taken into account for purposes of pension on completion of TA service, or to continue to draw pension for Army service and be entitled to separate pension for TA service provided the required qualifying service has been rendered or to appropriate gratuity on completion or superannuation of TA service. In view of these provisions and consequent to special government sanction having been granted, the petitioner was at liberty to exercise any option as above. However, he obviously declined to do so considering the fact that in overall financial terms he would be the loser. There is no dispute that the petitioner had continued to draw pension for Army Service even while continuing to draw pay and allowances while serving in the TA. Obviously, he has also received appropriate gratuity on termination of TA Service. The option to draw military pension and retain gratuity received on discharge from military service stood exercised.

In so far as the question of counting TA service with former Army service for pension is concerned, we find that the petitioner had an option under the Rules to opt for the Army service to be counted with the TA service which he declined to exercise and that issue, thus, stands closed.

The claim of his OTI was declined on the ground that he had been employed in government service for more than 10 years and was, therefore, entitled to pension for the same and under these conditions he was not entitled to OTI as per government instructions. However, this appears to have been an error as TA Service for 10 years does not entitle an individual to service pension for which minimum 15 years qualifying service is required. Therefore, he was obviously entitled to OTI of the Army service pension being drawn.

In view of the foregoing, we hold the petitioner entitled to OTI as applicable, and thereafter his pension to be fixed as per entitlement in accordance with subsequent Pay Commissions. The respondents are directed to fix his pension appropriately, work out the arrears due and pay the same to the petitioner within a period of four months from the date of receipt of copy of this order. However, arrears shall be restricted to a period of three years prior to the filing of the writ petition i.e. from 08.03.1996; should there be any arrears due from that date. The petition is accordingly disposed of.