KAMAL SINGH GHUGTYAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who was a Havaldar in the Army (No. 4142276) has moved this writ petition praying for an order directing the respondents 1 to 3 to give pensionary benefit to the petitioner as he has served about 19 years in the army as a Havaldar. The petitioner has stated that in the first spell he has served in Kumaon Regiment from November, 1939 to August, 1947 during the second world war. He was released from the army service in August, 1947 in the rank of Havaldar (No. 16235). The petitioner was again recalled during Kashmir operations, in the Kumaon regiment and he served in the Army Supply Corps (MT) from July, 1948 to July, 1953 in the rank of Havaldar (DUR No. 6556074). The petitioner further stated that he was recalled .from Army Supply Corps (MT) by Kumaon Regiment and transferred to impart training in the Lok Sahayak Sena of K.R.C. Platoon No. 28 where he served from July, 1953 to July, 1956 in the rank of Havaldar. As his job was to impart military training to Lok Sahayak Sena which is like NCC, he retained a regular army No. 4142276. The petitioner stated that in an alleged incident of storing illicit arms in his house, there was a police raid and all his papers were taken away by the police and as such he had no papers left with him to prove his service in the regular army except a statement of accounts QE 11/56, a copy of which has been annexed as Annexure P-2. It has been stated that the petitioner was intimated by a letter dt. 27-9-1983 issued by the District Sanik Welfare and Resettlement Office, Almora in reply to his representation for pension that he has not been in the army service for a period of 15 years as required, to be entitled to get pension according to Army Pension Rules. His claim for army pension was, therefore, rejected. This letter has been annexed as Annexure P-5 to the writ petition. The petitioner has stated in the writ petition that his service rendered in the LSS (third spell) should be treated as service in the army and he having served for more than 15 years in the army is entitled to pension.

(2.) An affidavit-in-opposition has been filed on behalf of the respondents sworn by Capt. P. E. Joseph. In Para 1 of the said affidavit it has been stated that the petitioner was originally enrolled with the Kumaon Regiment on 24th November, 1940 and discharged from service with effect from 26th Oct., 1946. He was subsequently re-enrolled in ASC (MT) with Army No. 6556074 on 8th March, 1948 and discharged from there on 20th May, 1952. It has been further stated that in the third spell of service he was reenrolled with the Kumaon Regiment on 2nd Mar., 1955 for Lok Sahayak Sena and allotted Army No. 4142276. He was discharged from there on 2nd Sept., 1957. It has been further stated in Para 3 of the said affidavit that the claim of the petitioner that he was in army service for over 19 years was not based on facts. It has been further stated that his service ,in the first two spells is 10 years and 54 days only and even if his service with 29 LSS is counted towards qualifying service his total service would be less than 15 years. So he will not be entitled to pension as per the extant army rules. The petitioner on the other hand was unable to produce relevant documents in support of his statement regarding the period of his service in the army rendered both in the first and second spell of service. It appears from a letter dt. 21st Oct., 1982 issued by the Lieutenant, Sahayak Abhilekh Adhikari, Asstt. Record Officer for OIC Records that the service rendered by the petitioner in LSS cannot be counted towards pension as the members of that unit are not treated as army personnel. This letter has been annexed as Annexure 'D' to the counter-affidavit. It has been further stated in the affidavit that since the individual has not served in the army as an incumbent for more than 15 years, he is not entitled to any pension as contemplated under the army rules.

(3.) A supplementary counter-affidavit on behalf of the respondents verified by 2nd Lieutenant Jagdish Singh, Records Kumaon Regiment, Ranikhet has been filed wherein it has been stated in Para 9 that the petitioner having not completed the required 15 years of service was not entitled to pension as per prevalent rules. It also appears from the letter dated 3rd February, 1987 issued under the signature of Major, Senior Record Officer for Officer-in-Charge addressed to the Organisation Directorate, Adjutant General's Branch, Army Headquarters that since the petitioner had not completed 15 years pensionable service in both the spells, he was not entitled to service pension as per the existing orders. It has been further stated therein that the petitioner's service in 29 National Volunteer Force (LSS) training team was not countable towards pension for which necessary clarification had already been given by the CDA(P), Allahabad vide letter dt. 2 1st Oct., 1982.