AJIT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The question which falls for determination is whether the Petitioner is entitled to payment of pension even though he was not allowed to complete the qualifying service due to an erroneous decision taken by the Respondent to discharge him from service precipitafcely. The Petitioner was enrolled in the Army Medical Corps as "Boy Recruit" on 16.4.1048 when he was about sixteen years. Thereafter, he was re-mustered as a "Man Recruit" with effect from 1.1.1950. It is a common case of the parties that in terms of the Pension Regulations, the Petitioner was required to render a minimum service of fifteen years for becoming eligible for the grant of pensionary benefits. The Respondents have averred that the due to an oversight on their part, the Petitioner was inadvertently Discharged by the Army Authorities by counting his service as having commenced from 16.4.1948 instead of 1.1.1950. There is no explanation why the Respondents' had simultaneously also overlooked the alleged non-qualifying period of 380 days. It appears that the mistake was subsequently discovered and the said Discharge Order was cancelled by the Respondents. The Petitioner was re-transferred to the "Reserve" in terms of the Respondents' Letter No. 490006/RD dated 10.9.1963. By yet another oversight attributable to the Respondents the said instructions for re-transfer to "Reserve" were not complied with and the Petitioner was discharged from service with effect from 9.10.1963. It has been candidly admitted in the Counter as well as during the course of arguments that realising the error committed by the Respondents in the Discharge of the Petitioner by taking into account the period of service from 16.4.1948 instead of 1.1.1950, the case of the Petitioner was put up by the Army Authorities before the Government of India, Ministry of Defence, seeking the condonation of the remaining service, so that the Petitioner could be paid pension. The Government, however, found the Petitioner to be ineligible for the grant of pension due to non-qualifying service of 380 days in his service record. It is in these circumstances, that the present Petition has been filed seeking the following prayers;-

(2.) The relevant provisions pertaining to the grant of pension are reproduced below'.- PR.122(A) All service from the date of appointment or enrolment or transfer for man's service to the date of discharge shall qualify for pension or gratuity with the exception- of:-

(3.) On a perusal of the Petitioner"s Certificate of Service, it is evident that he was Discharged by order of the Commandant AMC Centre, Lucknow, in consequence of his erroneous assumption of the Petitioner's "completion of the terms of engagement under Army Rule 13(iii)(i) after serving 12 years, 226 days with the Colours and 2 years and 315 days in the Reserve (non-qualifying service included)". His character is stated to be good. The Petitioner's services were neither terminated nor was he released on medical grounds. This responsibility and all ensuing repercussions of the mistake in the Discharge must be borne by the Respondents, since the Petitioner did not play any role in it. As far as he was concerned, he would have continued in service till he was forty years of age. It would be inequitable to hold otherwise since the Petitioner had admittedly given the best years of his life to the service of the Army Medical Corps. Having done so his legitimate expectation, i.e. for receiving pension and other retiral benefits must be protected. This right which he has earned cannot be extinguished or diluted by stating that even if the time served by him as a "Boy Recruit" is taken into consideration, he would still not fulfil the minimum period of service requisite for grant of pension etc. It would also not make the slightest difference that during the period in which he was permitted to serve in the Army Medical Corps, 380 days could not be taken into consideration for the non-qualifying service period. The simple answer is that the Petitioner would have willingly served if not till he had attained the age of forty years, but at least till he had served for the qualifying years, i.e., 15 years of service together with the 380 days which in his case are stated by the Respondent to be 'non-qualifying'. Had the Respondents not Discharged the Petitioner in the mistaken understanding of his having completed the terms of engagement, he could have challenged the Respondents' unilateral decision of Discharge as being contrary to any provision of the Army Act or Army Rules. As has already been mentioned above, his services were neither terminated nor was he discharged on medical ground. The Respondents' decision is clearly detrimental to his interests and punitive in character since he would stand to lose his right for receipt of pension. A punishment can be inflicted only in strict compliance of the statutory provisions.