Judgment:
BY THE TRIBUNAL (PER HON.BLE SUSHEEL GUPTA):
The applicant Rifleman Mangej Singh filed a writ petition before the Hon.ble Rajasthan High Court at Jodhpur on 13.4.2007 against an order of denial of second pension, which was due to him consequent to his 15 years service in the Defence Security Corps. The same was transferred to this Tribunal on 27.11.2009 and was registered as Transfer Application No. 23 of 2010.
2. The learned counsel for the applicant has stated that the applicant was enrolled in Rajputana Rifles on 15.11.1962 and was discharged from service after completion of his terms of engagement on 30.11.1978. The applicant was re-employed in Defence Security Corps on 24.2.1979 and was discharged from there on completion of his terms of engagement on 28.2.1994. The services of the applicant were calculated as 15 years and 5 days, which made him eligible for second pension.
3. The applicant was, however, denied the second pension and was intimated that there was a short fall in the minimum qualifying service by three days and hence, he was ineligible for second pension. The applicant requested for condonation of the short-fall under Rule 125 of the Pension Regulations However, the same has been denied to him and, therefore, he filed the writ petition.
4. Learned counsel for the non-applicants, in his reply, has stated that the applicant was enrolled in Defence Security Corps (hereinafter referred to as âDSCâ) on 24.2.1979 and was discharged on 28.2.1994 while the total service appears to be more than 15 years, which is qualifying service for grant of pension, the qualifying service fell short by three days as the applicant was absent without permission for 8 days, which is non-qualifying service for the purpose of pension.
5. So far as the provisions for grant of condonation of shortfall in service is concerned, these are applicable only for grant of first pension. Learned counsel for the non-applicants have quoted a decision of the Government of India communicated vide letter dated 7.12.1962 that condonation of deficiency in the service under Rule 125 of the Pension Regulations will not be allowed for grant of second spell of service pension. Thus, in this matter, short-fall in the qualifying service cannot be condoned/waived of. Hence, the applicant is not entitled for second service pension.
6. During the course of arguments, the learned counsel for the applicant further emphasized that Para 125 of the Pension Regulations very specifically talked about condonation of deficiency in service for eligibility to service/reservist pension, wherein, it states as under :-
âCondonation of deficiency in service for eligibility to service/reservist pension
125. Except in the case of-
(a) an individual who is discharged at his own request;
(b) who is eligible for special pension or gratuity under Regulation 164 or
(c) an individual who is invalided with less than 15 years of service, deficiency in service for eligibility to service pension/reservist pension/gratuity in lieu may be condoned by a competent authority up to six months in each case.â
7. Learned counsel for the applicant also stated that the short fall in service was merely three days which occurred as 8 days was deducted as non-qualifying service from the total service. Under normal circumstances, this absence of 8 days could have been regularized by the concerned authorities at the time when the individual was punished for the same. By not having taken up the case for regularization of these 8 days of absence, the organization has acted very unfairly to this dedicated soldier.
8. In the certificate of service, which was issued to the applicant at the time of his retirement, it was clearly stated that his date of enrolment was 24th February, 1979 and his date of discharge from service was 28th February, 1994 (Afternoon) on completion of his terms of engagement. Thus, the applicant was sure that he had completed his pensionable service. At no stage, it was mentioned in the Service Book that period of 8 days has been deducted as non-qualifying service. Learned counsel for the non-applicants has clarified that the period of service had been mentioned from 24.2.1979 to 28.2.1994 in the Discharge Book and that entry was not authenticated. The endorsement in the Discharge Book was obtained by him from the concerned Company Commander at DSC Centre at the time of his discharge by showing the services as 15 years and 5 days. The said entry nowhere indicates that it is the qualifying service rendered by him. The claims for grant of service pension and other related benefits, are preferred by DSC Record Office and submitted to PCDA(Pensions), Allahabad after final scrutiny of the service record and assessment of actual qualifying service. Hence, the period of service endorsed in the Discharge Book is not the final authority to determine his eligibility for second service pension. The actual qualifying service of the applicant during his DSC service was only 14 years and 362 days.
9. Since the applicant has asked for second pension for his service with DSC, there is no provision for condonation of deficiency in the qualifying service under Rule 125 of the Pension Regulations, as amplified vide Army Head-quarters letter No.82370/AG/PS4(a) dated 7.12.1962.
10. Having gone through the record and having heard the learned counsel for the parties, it is apparent that there was a short-fall of three days in the qualifying service for grant of second pension to the applicant. Whilst the actual period of service was from 24.2.1979 to 28.2.1994, which was more than 15 years but 8 days service was deducted as non-qualifying service, thus, the short-fall of three days for grant of pension. The Service Book of the applicant shows that his character was âExemplaryâ, thus, the period of 8 days that he absented without permission, could at best be an aberration. The individual was certainly not a habitual offender. The right course would have been to regularize the eight days absence under the orders of the competent authority by adjusting against his leave due during the service. The Government is supposed to be an ideal employer, hence, this course would have been the natural choice whilst the applicant was in service. However, this was not done, thus, putting the applicant to great inconvenience later.
11. A study of Rule 125 of the Pension Regulations does not in any way convey that the condonation of deficiency in the service is eligible only for the first pension and not for the second one. The Army Head-quarters. letter quoted by the learned counsel for the non-applicants is merely a departmental instructions and does not over-ride the powers vested vide Rule 125 of the Pension Regulations.
12. In view of the above, the instant Transfer Application is allowed and the communication dated 18.1.2007 (Annx. 3) is quashed. The non-applicants are directed to waive the short-fall of three days for grant of second pension and issue orders for grant of pension as eligible.