BIRBAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition, the petitioner has prayed for a direction to the respondents to grant to the petitioner service pension from the date of his discharge from the Army after quashiny the orders dated 7/03/1991 and 1/08/1997.

(2.) The petitioner was enrolled in the Indian Army as a Sepoy. While serving in the Indian Army, the petitioner was declared a deserter for a period of 797 days that is with effect from 21/09/1965 to 26th November, 1967. The petitioner fnally retired from service on 19/06/1972. A claim was made by thy petitioner to the effect that while computing the total length of service of the petitioner, his entire period of service should be reckoned including the period during which he was declared a deserted that is, with effect from 21/09/1965 to 26/11/1967.

(3.) It is an accepted position that in case the aforesaid period is computed towards the total and actual length of service of the petitioner, the petitioner shall have 15 years of service in the Indian Army which is the qualifying service to earn service pension as provided for under the Army Regulations. However, in case the said period is excluded, the petitioner shall not have 15 years of qualifying service which, according to the respondents, is mandatory for earning service pension. The aforesaid issue as to whether the period from 21/09/1965 to 26/11/1967 could be computed as the period spent on duty was referred to a Full Bench of this Court. The said issue came up for consideration before the Full Bench of three Judges of this Court and by judgment and order dated 11/05/2001, the decision rendered by this Court in Ex-Sepoy S.D.P. Yadav Vs. Union of India & Others (C.W.P.No.4156//1995 decided on 22/08/1997 was over-ruled. It was further held by the aforesaid Judgment and order that as the petitioner did not render any service during the aforesaid period, the benefit of the said period could not be given to the petitioner for the purpose of earning service pension in terms of Regulation 132 of the Regulations.