UNION OF INDIA & ORS.v.BALAKRISHNAN MULLIKOTE (EX HAV 2568912 M) & ORS.

WITH

1. Delay condoned.

2. Leave to appeal granted.

3. Applications for intervention / impleadment are allowed.

THE TWO SUBSTANTIAL QUESTIONS OF LAW

4. The two substantial questions of law that arise for consideration in this batch of appeals are:

A. Whether the Union of India, through the Ministry of Defence, is bound to give effect to Paragraphs 9 and 18 of the Pension Regulations for the Army, (and Paragraph 44 of the Pension Regulations, 2008) (hereinafter referred to as ‘Pension Regulations, 1961’) and Pension Regulations for the Army, 2008 (hereinafter referred to as ‘Pension Regulations, 2008’) respectively, as well as Note 5 appended to the letter dated 30th October 1987, while determining the length of qualifying service of personnel serving in the Defence Security Corps (hereinafter referred to as ‘DSC’) and

B. Whether such personnel are entitled to seek condonation of deficiency in the qualifying period of service for the purpose of pension eligibility in accordance with Paragraph 125 of the Pension Regulations, 1961 and Paragraph 44 of the Pension Regulations, 2008.

ARGUMENTS ON BEHALF OF THE APPELLANTS

5. Ms. Archana Pathak Dave, learned Additional Solicitor General of India stated that the present batch of matters fall into two distinct categories: one involving a shortfall in qualifying service of less than one year and the other involving shortfall exceeding one year. She has handed over a chart indicating shortfall in service of each of the Respondents. The relevant portion of the said chart is reproduced hereinbelow:-

6. Subsequently, learned ASG has handed over another chart of four other Respondents. The said chart is reproduced hereinbelow:-

7. She submitted that at the time of re-employment in the DSC, an individual is afforded two distinct options: (i) to continue drawing pension from mobility of the Regular Army and retain retirement gratuity, in which case his prior service in the Regular Army is not reckoned for pensionary benefits in the DSC or (ii) to cease drawing pension, refund the pension already received with effect from the date of re-employment in the DSC and have his previous service counted as qualifying service towards the current engagement in the DSC.

8. Attention of this Court was invited to Paragraph 173 of the Pension Regulations, 2008, which stipulates that pensionary awards to DSC personnel are governed by the same provisions applicable to the Regular Army, save where inconsistent with the specific provisions relating to DSC (Chapter VIII, Paragraphs 173–181). It was contended that individuals who, at the time of re-employment, opted to continue drawing pension from the Regular Army are entitled to pension for service rendered in the DSC under Paragraph 175(a)(i), and not under Paragraph 47 of the Pension Regulations, which applies exclusively to personnel of the Regular Army. The very existence of a separate provision, it was urged, demonstrates the inconsistency contemplated in Paragraph 173, thereby excluding the applicability of condonation of shortfall for DSC personnel under Paragraph 44 of the Pension Regulations, 2008. It was emphasised that, had Paragraph 44 been intended to apply equally to both Regular Army and DSC personnel, there would have been no necessity to incorporate Paragraph 175(a)(i) specifically for DSC personnel.

9. Ms. Dave, learned ASG further pointed out that under Paragraph 47, the qualifying service for grant of service pension to Personnel Below Officer Rank (hereinafter, ‘PBOR’) of the Regular Army is fixed at fifteen (15) years. In contrast, for DSC personnel, Paragraph 175(a)(i) prescribes qualifying service of “15 years or more.” Moreover, the expression “qualifying service” in Paragraph 47 is preceded by the word “Minimum,” whereas in Paragraph 175(a)(i) it is preceded by the word “Actual.” This distinction, it was submitted, reinforces the inconsistency and excludes the applicability of condonation of shortfall for DSC personnel.

10. On a holistic reading of the relevant provisions, it was contended that condonation of shortfall in service is not available to DSC personnel for purposes of eligibility for a second service pension. To make this exception explicit, the Ministry of Defence, Department of Ex-Servicemen Welfare (MoD, DESW), issued a letter dated 20th June 2017, categorically barring condonation of shortfall in service for DSC personnel seeking eligibility for a second service pension. The said letter dated 20th June 2017 is reproduced hereinbelow:

“No. 14(02)/2011-D(Pen/Pol)
Government of India
Ministry of Defence Department of Ex-Servicemen Welfare
New Delhi Dated 20th June 2017
To, The Chief of the Army Staff The Chief of the Naval Staff The Chief of the Air Staff
Subject: Condonation of deficiency in service for grant of 2nd service pension in respect of DSC (Defence Security Corps) personnel.
Condonation of deficiency in service for eligibility of service pension has been mentioned in Rule 125 of Pension Regulation Part-I 1961 (Rule 44 of Pension Regulation Part-I 2008). This rule is applicable in all cases except the case mentioned under the Rule 125 of Pension Regulation Part-I 1961 (Rule 44 of Pension Regulation Part-I 2008). Deficiency in service for eligibility of Service pension or Reservist pension or Gratuity in lieu may be condoned by competent authority up to 12 month as mentioned in Gol, MoD letter No. 4684/DIR(PEN)/2001 dated 14th August 2001.
2. Representations of the ex-servicemen who have been granted Service pension from Army side and re-employed in DSC are received for condonation of deficiency in service for the 2nd service pension from DSC. The matter has been examined and decided that condonation of deficiency in qualifying service is to be accorded on merit and in the deserving cases to make individual eligible for at least one service pension. Condonation of deficiency in qualifying service for grant of 2nd service pension in respect of DSC personnel has no merit.
3. It is conveyed that the intention behind condonation of deficiency in service for grant of service pension is that the individual must not be left high & dry but should be made eligible for at least one service pension. In view of above, it is clarified that no condonation shall be allowed for grant of second service pension.
4. The Pension Regulation for the Army shall stand amended by inserting item '(iv) an individual who is eligible for 2nd service pension for the service rendered by individual in respect of DSC' below Regulation 44 of Pension Regulation for the Army Pt-l (2008).
5. All other terms and conditions shall remain unchanged.
6. This issues with the concurrence of Finance Division of this Ministry vide their ID No 10(16)/2016/FIN/PEN dated 26/08/2016
7. Hindi version will follow.
Yours faithfully Sd/-
(K.T. Lepcha) Under Secretary to the Government of India”

11. Learned senior counsel for the Appellants submitted that, from the foregoing provisions and clarifications, it is evident that the consistent stand of the Appellants has been that the provision for condonation of shortfall was intended solely to ensure that service personnel are able to secure at least one pension, the underlying objective being that no individual should be left without pensionary support.

12. It was emphasised that all Respondents herein are already in receipt of service pension from the Regular Army. None of them exercised the option of counting their former service towards DSC service at the time of re‑enrolment. The option exercised by them was final, and it was done with full knowledge that unless they rendered the actual qualifying service of fifteen (15) years or more, as mandated under Paragraph 175 of the Pension Regulations, 2008, they would not be eligible for pension in respect of their service in the DSC.

13. Learned senior counsel for the Appellants further contended that the question of whether the provision for condonation of deficiency in service should extend to DSC personnel was examined and clarified by the Ministry of Defence, Department of Ex‑Servicemen Welfare (MoD/DESW), on the basis of recommendations made by an Expert Committee. The decision conveyed by the MoD on 22nd March 2022 contains the following excerpts:

“1. As per Regulation 125 of Pension Regulations for the Army 1961, except in the case of (a) an individual who is discharged at his own request or (b) an individual who is eligible for special pension or gratuity under regulation 164 or (c) an individual who is invalided out with less than 15 years of service, deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by competent authority up to six months in each case.
2. As per clarification issued vide Army Hqrs letter No.83370/AG/PS(a) dated 7th December, 1962 and 65745/P/DSC-2 dated 3rd December 1992, the condonation of deficiency under Rule 125 of Pension Regulations for Army 1961 will not be allowed for grant of second service pension.
3. The issue was earlier considered in view of few AFT judgments wherein directions were given for condonation of deficiency in service for the purpose of granting 2nd service pension.
4. CGDA to whom the matter was referred had stated that condonation of deficiency in Qualifying Service for grant of service pension is to be granted only on merit and in deserving cases to make individual eligible for at least one pension...
5. It was conveyed to Service Hqrs with the approval of Secretary (ESW)... that no condonation shall be allowed for grant of 2nd service pension...”

14. Ms. Dave pointed out that Paragraph 44 of the Pension Regulations, 2008, if applicable, permits condonation of shortfall only up to twelve (12) months, and contains no provision for condonation beyond that period. With respect to the second category of cases, involving shortfall of more than one year, she contended that the courts below erred in relying upon the judgment of this Court in Union of India v. Surender Singh Parmar, (2015) 3 SCC 404.

15. In conclusion, learned Additional Solicitor General submitted that the grant of a second pension itself constitutes an additional benefit to individuals already in receipt of a first service pension. To permit condonation of shortfall in service for such second pension would amount to creating an exception to the general rule mandating fifteen (15) years of qualifying service.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

16. Per contra, learned counsel for the Respondents submitted that Paragraphs 125 and 44 of the Pension Regulations, 1961 and 2008 expressly provide for condonation of shortfall in qualifying service for Army personnel. According to them, neither of these provisions contain any prohibition against condonation of deficiency in qualifying service for the second spell of service rendered in the DSC.

17. They emphasised that the DSC is a branch of the Army consisting of former personnel of the defence services wherein they are re-enrolled in the Army. DSC personnel, being an integral part of the Indian Army, are subject to the Army Act, 1950 and governed by the applicable statutory provisions.

18. It was further submitted that while former Army personnel who opt to join civil government service after retirement are entitled to earn a second pension upon rendering ten years of service, those who are encouraged to join the DSC instead of civil employment are placed at a disadvantage.

19. They contended that although there is no express prohibition against condonation of shortfall in the second spell of service in the DSC, the Union of India has, from time to time, issued letters imposing such restrictions which have been repeatedly read down or struck down by judicial pronouncements.

20. They cited several judgments including Union of India vs. LNK DSC Mani Ram (Punjab and Haryana High Court, 2010), Ex. Sep. Madan Singh vs. Union of India (Delhi High Court, 2006), Bhani Devi vs. Union of India (AFT Principal Bench, 2013), and Mohanan T vs. Union of India (AFT Kochi Bench, 2017).

21. They submitted that the larger Bench of the AFT, Principal Bench, New Delhi in Smt. Shama Kaur vs. Union of India (1st October 2019) noted that a dead provision or a logic declared illegal or arbitrary could not be revived or brought back to ‘life’ simply by issuing it again and again.

22. The learned counsel for the Respondents pointed out that Paragraphs 9 and 18 of the Pension Regulations, 1961 and 2008, read with the Government of India letter dated 30th October 1987, provide that a fraction of a year equal to three (3) months and above but less than six (6) months shall be treated as a completed half-year.

Paragraph 9 of the Pension Regulations, 1961
“9. If the total period of qualifying service of an individual exceeds completed years by six months (180 days) or more, the amount of his pension/gratuity will be increased by half the difference between the pension/gratuity admissible for the completed years of his qualifying service and the one admissible for the next consecutive number of complete years.”

Paragraph 18 of the Pension Regulations, 2008
“18. (a) In calculating the length of qualifying service, fraction of a year equal to three months and above but less than 6 months shall be treated as a completed one half year and reckoned as qualifying service... This shall however not be applicable for completing minimum qualifying service for pensionary awards.”

23. Learned counsel for Respondents submitted that this Court, in Surender Singh Parmar (supra), held that Army personnel are entitled to the benefit of rounding off as well as condonation of shortfall in qualifying service.

REJOINDER

25. In rejoinder, learned Additional Solicitor General stated that Paragraphs 9 and 18 of the Pension Regulations, 1961 and 2008 respectively stipulate that a fraction of a year equal to three months and above but less than six months shall be treated as a completed half-year. However, she emphasised that this provision is unambiguous in limiting its application solely to the calculation of the length of qualifying service, and not to the completion of the minimum qualifying service required for pension, which for DSC personnel remains fifteen (15) years or more. She relied upon the judgment of this Court in Ex Sep Chhatar Pal vs. Union of India & Ors., Civil Appeal No. 6692 of 2019.

REASONING

DSC PART OF "ARMED FORCES PERSONNEL”

26. DSC has been constituted with the primary responsibility of providing security cover to defence installations of the three Armed Services as well as civil establishments functioning under the Ministry of Defence...

27. In accordance with the Rule 187(1)(r) of the Army Rules, 1954, read with Section 3(vi) of the Army Act, 1950, the DSC constitutes a “Corps” of the Indian Army.

PENSIONARY PROVISIONS APPLICABLE TO REGULAR ARMY MEN ARE EQUALLY APPLICABLE TO DSC PERSONNEL EXCEPT WHEN ‘INCONSISTENT’

28. Paragraph 266 of the Pension Regulations, 1961 and Paragraph 173 of the Pension Regulations, 2008, stipulate that the pensionary provisions applicable to PBOR of the Regular Army shall govern pensionary awards to DSC personnel, save where such provisions are “inconsistent” with the Regulations specifically applicable to DSC.

29. It is a settled principle of law that provisions are said to be ‘inconsistent’ when they are mutually contradictory to the extent that the operation of one necessarily implies the negation of the other...

THE APPELLANTS SHALL FIRST DETERMINE THE LENGTH OF QUALIFYING SERVICE

31. Paragraphs 9 and 18 of the Pension Regulations, 1961 and 2008 as well as the Note 5 of the letter dated 30th October, 1987 stipulate that in calculating the length of qualifying service, fraction of a year equal to three months and above but less than six (6) months shall be treated as a completed one half year and reckoned as qualifying service.

32. Consequently, this Court is of the considered view that the Appellants must first determine the length of qualifying service of each of the Respondents...

CONDONATION OF SHORTFALL OF QUALIFYING SERVICE IS SPECIFICALLY PROVIDED IN REGULATIONS 1961 AND 2008

33. The condonation of shortfall of qualifying service up to twelve (12) months is specifically provided in Paragraph 125 of Pension Regulations, 1961 and Paragraph 44 of Pension Regulations, 2008...

34. The contention advanced by the Appellants that the DSC Chapter contains no provision analogous to Paragraphs 125 or 44... is untenable by virtue of the principle of incorporation by reference.

NO INCONSISTENCY BETWEEN PARA 175 AND PARAS 44, 47 OF PENSION REGULATIONS, 2008.

35. Paragraph 175(a)(i) stipulates the conditions precedent to be fulfilled for grant of pension and prescribes the methodology for computation thereof. Significantly, it contains no embargo or prohibition against condonation of shortfall in qualifying service.

CONSISTENT JUDICIAL VIEW

40. This Court notes that the consistent view of the High Courts... as well as the Principal Bench of the Armed Forces Tribunal in Smt. Shama Kaur (supra), has been in favour of the Respondents.

41. Accordingly, this Court holds that the Respondents are entitled to condonation of shortfall in qualifying service up to one (1) year, in accordance with Paragraph 125 of the Pension Regulations, 1961 and Paragraph 44 of the Pension Regulations, 2008.

GOVERNMENT CANNOT AMEND REGULATIONS BY WAY OF LETTERS

42. This Court is of the considered opinion that once the Pension Regulations specifically provide for condonation of shortfall in minimum DSC service, it is not open to the Government of India... to stipulate an exception by way of executive letters.

ISSUE OF LIMITATION

43. ...Pension is neither a bounty nor an ex gratia payment dependent upon the largesse of the State. It constitutes a deferred portion of compensation for past service...

NO BAR ON DSC PERSONNEL EARNING SECOND SERVICE PENSION

44. The contention of the Appellants that the provision for condonation of shortfall was intended only to ensure grant of a single defence pension is contrary to the express language of the Regulations.

ANSWERS TO THE TWO SUBSTANTIAL QUESTIONS OF LAW

47. This Court is of the view that Union of India through the Ministry of Defence shall determine the length of qualifying services in accordance with Paragraphs 9 and 18 of the Pension Regulations, of 1961 and 2008 respectively, as well as Note 5 appended to the letter dated 30th October 1987.

48. If, upon determination of the length of qualifying service, there remains a shortfall of one year or less, the Respondents shall be entitled to seek condonation of such deficiency for the purpose of pension eligibility, in accordance with Paragraph 125 of the Pension Regulations, 1961 or Paragraph 44 of the Pension Regulations, 2008.

CONCLUSION

51. For the reasons aforesaid, this Court holds that the present Appeals are devoid of merit. The Appeals are accordingly dismissed, with no order as to costs. Pending applications, if any, shall stand disposed of.