N.D. Sharma Vs. Union of India - Court Judgment

Excerpt:
the case debated on the maintainability of writ petition claiming pension - as per rule, only two-third of the service of the incumbent could be counted and thereforee, the incumbent was not entitled to pension under section 18 of the army act, 1950 - it was thereforee, held that the said writ petition was not maintainable - m. jagannadha rao, j. (1) the petitioner joined as a sepoy in the army on3.12.1958 and was discharged on 4.1.1959 after 34 days of service. he rejoined on9.2.1960 and worked as sepoy up to 13.6.1969 for 9 years, 4 months and was commissioned on 14.6.1969, promoted as captain on 22.1.1979 and was 'dismissed' from service under section 18 of the army act on 11.1.1980. this order was modified on 3.3.1980 as an order of 'termination'.(2) petitioner, according to the respondent did not have qualified service for pension (20 years) but was only entitled to gratuity. so far as his gratuity is concerned a cut of 5% was imposed by an order dated 25.8.1980. the petitioner filed writ petition c.w.p. 1644 of 1982 challenging the termination and also the cut of5% in gratuity. the writ petition was dismissed on 22.3.1985 and petitioner filed lpa 116/85 which was disposed of on 19.8.1986 upholding the rejection of pension but directing full gratuity. the order of termination was not disturbed. in other words the cut of 5% in gratuity was set aside. consequently, orders were issued on6.7.1987 by the respondents directing full gratuity to be released. contempt case168/87 was dismissed on 5.1.1988.(3) it is said petitioner moved special leave petition 13195/86 against the high court order and while dismissing the writ petition the supreme court observed that petitioner could send a representation to the government (copy of the order has not beenfiled). on the basis that government did not pay pension, petitioner filed w.p. 137/88 directly in the supreme court and the same was dismissed on 7.9.1992.(4) then petitioner filed a fresh wp 3107/92 in the high court again questioning the order of termination and that was dismissed on 7.9.1992 but again an observation was made that petitioner could approach the government and liberty was granted to seek remedies therefore. the petitioner's request for pension was rejected again on 28.10.1992.(5) petitioner filed yet another cwp 4585/96 questioning the same order of termination dated 3.3.1980. that was dismissed by a division bench on 28.10.1996.(6) questioning again the order rejecting pension, the present writ petition has been filed on 20.12.1993, seeking full pension from 21.1.1980 and gratuity.reliance has been placed upon major sodhi's case (jt 1992 (4) sc 37), by way of amendment to the writ petition.(7) two replies dated 4.2.1995 and 8.5.1995 have been filed by the respondents staling that the petitioner is not eligible for pension because out of his service as sepoy only 2/3rd period can be counted as per the rules in force up to 1.1.1986.after 1.1.1986 full service as sepoy could be counted. applying the said rules to the9 years and 4 months service as sepoy and adding 10 years, 7 months, 10 days ascommissioned officer, etc., it is stated that the total qualifying service is less than20 years and hence it is stated petitioner is not eligible for pension.(8) we are of the view that having regard to the rule position set out in thecounter, obtaining before 1.1.1986, the petitioner is not eligible for pension. the entire service as sepoy cannot be counted and only 2/3rd can be counted. counted in that manner, service is less than 20 years. hence, no pension can be paid. so faras gratuity is concerned, the cut of 5% was set aside by order of court in lpa 116/85 and consequential orders were passed by the respondent on 6.7.87. hence no further gratuity can be claimed.(9) petitioner has tried to question the cut-off date of 1.1.1986 from whichdate, full service (rather than 2/3rd) as sepoy could be counted for pension. but this attack is not tenable in view of the judgment of the supreme court in ca 517/87decided in 1994 union of india v. p.n. menon, by ahmadi, cj' and n.p. singh, j.(10) so far as the contention raised relying on sodhi's case, : (1991)2scc371 , we may state that inasmuch as this is not a case of forfeiture of pensionary benefits under sections 71(h) or (k) of the army act by a court martial but one of simple termination under section 18 that judgmentdoesnotapply. on the assumption thatsodhi's case, : (1991)2scc371 , was applicable petition in case was referred to this full bench and clubbed with the batch of cases arising under section 71 of the act and regulation 16(a) of pension regulations. it is now discovered that the points are different. it is now discovered that the points are different. there is no merit in the writ petition.(11) we are constrained to say that in the written submissions dated14.2.1997, the petitioner has raised issues, which do not at all arise on the facts of case and the language used against the respondents in reward to the said submissions also appears to be totally unwarranted.(12) we would have awarded heavy costs having regard to the repeated writ petitions that have been filed and the unwarranted submissions in the written note dated 14.2.1997butwe are refraining from doing so having regard to the limitations of age and background of the petitioner. writ petition is dismissed.