ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

O.A.No. 88 of 2015

MONDAY, THE 05TH DAY OF DECEMBER, 2016/14TH AGRAHAYANA, 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: K.SIVADASAN, ARMY NO.10289513H, RANK EX NK/GD, AGED 57 YEARS (DATE OF BIRTH:30-11-1957) S/0.M.V.NARAYANAN, RESIDING AT KELOTH HOUSE, MANGALASSERY, ARIYIL P.O., PATTUVAM VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT – 670 143.

BY ADV.SRI.M.P.KRISHNAN NAIR

Versus

RESPONDENTS:

1. THE SECRETARY, MINISTRY OF DEFENCE SOUTH BLOCK, NEW DELHI – 110 001.

2. THE DEPUTY DIRECTOR DEFENCE SECURITY GENERAL STAFF BRANCH INTEGRATED HQ MOD (ARMY) WEST BLOCK III, R.K. PURAM, NEW DELHI – 110 066.

3. THE RECORD OFFICER, DEFENCE SECURITY CORPS RECORDS, MILL ROAD, CANNANORE – 670 013.

4. THE OFFICER COMMANDING RELEASE AND ADMINISTRATION COMPANY DEFENCE SECURITY CORPS CENTRE CANNANORE – 670 013.

BY ADV.MR.M.RAJENDRAKUMAR, SENIOR PANEL COUNSEL. OA No. 88 of 2015 : 2 :

O R D E R

VAdm.M.P.Muralidharan, Member (A):

1. The Original Application has been filed by

K.Sivadasan, Ex Nk No.10289513H of Defence Security

Corps seeking two reliefs, namely, quashing of orders disallowing two years of his disembodied service in Territorial

Army for pension and for condonation of shortfall for getting a second pension for his service in the DSC. However, at the admission stage, Sri MP Krishnan Nair, the learned counsel for the applicant submitted that he is not pressing for the first relief ie for quashing of orders to count the disembodied service of the applicant for re-fixing his pension and was only submitting his claim for second pension with condonation of shortfall of qualifying service.

2. The applicant was initially enrolled in 122 Infantry

Battalion (TA) on 30 September 1978 and was discharged OA No. 88 of 2015 : 3 :

with effect from 06 May 1983 after rendering 03 years 01 month and 20 days of embodied service (Annexure A1). He was re-enrolled in DSC with effect from 07 May 1983 for an initial term of engagement of 10 years and was granted extension of service from time to time and was discharged on 30 September 1998 at his own request (Annexure A2).

The applicant was granted service pension taking into account his service in the DSC as well as the embodied service rendered by him in the . The applicant got re-enrolled himself in DSC on 31 January

2000 and as per option exercised by him, continued to draw pension for his earlier service. He was granted extension of service after initial term of 10 years till the age of superannuation and was discharged with effect from 30

November 2014 under Army Rule 13(3)III(i) (Annexure A4) after rendering 14 years and 304 days of qualifying service.

The applicant was not granted service pension for his second spell in the DSC but was granted service gratuity and retirement gratuity. OA No. 88 of 2015 : 4 :

3. Shri MP Krishnan Nair, learned counsel for the applicant submitted that the shortfall in service, to earn pension in the second tenure of the applicant was only 61 days and the applicant was willing to continue in service, but had been discharged on attaining the age of superannuation. The learned counsel further submitted that in accordance with Government Orders issued in August

2001, condonation of shortfall in qualifying service for grant of pension for a period upto 12 months was permissible, based on which the Chennai Bench of this Tribunal had granted relief in TA No.141 of 2009 to the wife of a late soldier. Further, a similar case to that of the applicant had been considered and allowed by the Principal Bench of this

Tribunal in Ex Nk Mohd. Suleman vs. Union of &

Ors, OA. No. 544 of 2011, wherein the petitioner had been short by 09 months and 24 days of service (Annexure

A5). Similarly, in Rajappan Nair KK vs. The Defence

Security Corps, TA No.24 of 2010, the applicant was OA No. 88 of 2015 : 5 :

permitted by this Bench to have his case considered by the respondents to condone deficiency in service (Annexure A6) and the shortfall of 10 months and 28 days was allowed by the respondents. A similar order was also passed in TA

No.109 of 2009 by this Bench (Annexure A7).

4. The learned counsel further submitted that based on the rulings by various Benches of the Armed Forces

Tribunal, the applicant had submitted an appeal to the respondents seeking for condonation of shortfall in service

(Annexure A9) in May 2015. However, the respondents turned down the appeal of the applicant stating that in accordance with the policy issued by the Ministry of

Defence/Department of Ex servicemen Welfare letter

No.1(2)/2011/D(Pen/(Pol) dated 23 April 2012, condonation of deficiency in service is not applicable for grant of second service pension (Annexure A10). The learned counsel submitted that the stand of the respondents was highly discriminatory and against the decisions given by Benches of OA No. 88 of 2015 : 6 :

various Armed Forces Tribunals as well as the Hon'ble Apex

Court. In view of the above, the learned counsel submitted that Annexure A10 disallowing condonation of shortfall for grant of second pension from DSC to the applicant be quashed and the respondents be directed to grant pension to the applicant for his second spell in DSC.

5. The respondents in their reply statement have submitted that the applicant while re-enrolling himself for a second tenure in the DSC had the option of ceasing of his pension and getting the former service counted for enhanced pension on completion of his second spell.

However, he chose to continue to draw his earlier pension during his second spell in the DSC. While he was granted extension of service on completion of his initial term of engagement he was discharged from service on reaching the age of superannuation. The applicant was not granted pension for his second service as his term was less than the mandatory period of 15 years of qualifying service necessary OA No. 88 of 2015 : 7 :

but was sanctioned service and retirement gratuity.

6. The respondents have further submitted that condonation of deficiency of qualifying service cannot be granted to applicant, in view of the policy promulgated in

April 2012, wherein condonation was considered only in case of individuals who were not getting any pension and not for second service pension (Annexure R2). The orders in Ex Nk Mohd. Suleman's case (supra) and Rajappan

Nair's case (supra) had been pronounced by the respective

Benches prior to the issue of Government policy letter at

Annexure R2 and therefore cannot be treated as precedence by the applicant. The respondents also submitted that refusal of condonation of shortfall to the applicant was based on the rules and regulations in force and no injustice had been done to the applicant.

7. Heard rival submissions and perused records.

Since the applicant had two spells of service in DSC and was OA No. 88 of 2015 : 8 :

seeking a second pension from DSC condoning the deficiency in his second spell, we directed that a suitable representative of the competent authority dealing with the issue be present to assist the Tribunal. Accordingly Major

SS Rawat of DSC Records and Mr.RK.Singh, AAO of PCDA(P),

Allahabad were present in Court to assist the learned

Central Government Counsel.

8. As the applicant has not pressed his claim for counting his disembodied service, the only question before us for consideration is the eligibility of the applicant to earn a pension for his second tenure in the DSC. The applicant was discharged from service in November 2014, on completion of his second tenure, hence Pension Regulations for the Army, 2008 would be applicable. Chapter VIII of the said Regulations deals with grant of Pensionary Awards to personnel of DSC and Regulation 173 being relevant, is quoted below: OA No. 88 of 2015 : 9 :

“The grant of pensionary awards to personnel of the Defence Security Corps shall be governed by the same Regulations as are applicable to Personnel Below Officer Rank of the Army, except where they are inconsistent with the provisions of the Regulations in this chapter”

9. It therefore emerges that if there is no specified provision, in the Chapter for DSC, the Regulations as applicable to other PBOR of the Army would govern grant of pensionary awards to DSC personnel. The applicant had chosen the option to continue to draw his earlier military pension in accordance with the Regulation 267 of Pension

Regulations, 1961 as modified by Ministry of Defence letters which were prevalent when he re-enrolled in January 2000 and is akin to Regulation 174 of Pension Regulations 2008.

Reg 175 of 2008, provides for grant of a second service pension or service gratuity from DSC, for retired Armed

Forces Personnel re-employed in DSC, if they opt to continue to draw their pension. In case of the applicant, who was earlier serving in the DSC and was therefore OA No. 88 of 2015 : 10 :

drawing first pension from DSC, Regulations 6 and 23 of the

Pension Regulations for the Army would apply and being relevant are re-produced below:

“Limitation on Number of Pensions

6. Except where otherwise specifically provided for, an individual shall not earn more than one pension under these Regulations for the same service or post at the same time or for the same continuous service.”

“Condonation of interruption in service

23. (a) In the absence of a specific indication to the contrary in the service records, an interruption between 2 spells of service rendered in civil or military capacity under Central Government shall be treated as automatically condoned and the pre- interruption service treated as qualifying service for pension/gratuity.

(b) Nothing in clause(a) above shall apply to interruption caused by resignation, dismissal or removal from service or participation in strike.

(c) The period of interruption referred to in OA No. 88 of 2015 : 11 :

clause (b) above shall not count as qualifying service.

Note: In case of Personnel Below Officer Rank, the interruption caused by discharge at own request is not equivalent to resignation. As such the term resignation used in clause (b) above is exclusive of the interruption caused by discharge at

own request. “

10. Regulation 6 clearly specifies that an individual shall not be eligible for more than one pension for the same service or for the same continuous service. Regulation 23 provides for condonation of interruption between two spells of service and that service prior to interruption shall be treated as qualifying service for pension/gratuity. Therefore it clearly emerges that you can earn only one pension from

'the same service', and, while you are permitted to include your service prior to interruption as qualifying service for pension provided such interruption is not exempted by specific clauses, you can still earn only one pension. OA No. 88 of 2015 : 12 :

11. Neither the applicant nor the respondents were able to place before us any Regulation/Rule/Administrative

Order by which Regulation 6 could be overcome to provide second pension from the same service. The respondents also submitted that criteria for re-enrolment to DSC has since been revised vide policy letter No.62502/Rtg B(A) dated 05 August 2014 (copy placed before us). As per the new policy ex-DSC personnel discharged/retired from DSC cannot be re-enrolled into DSC.

12. The learned counsel for the applicant tried to contend that even DSC personnel should be considered as

Armed Forces personnel and therefore eligible for second pension under Reg 175 of Pension Regulations as it has been specified so under Army Rule 187. It is observed that

Army Rule 187 only indicates what are the Corps prescribed under Section 3(6) of the Army Act. In our view if DSC was part of the regular Army, there would have been no need to OA No. 88 of 2015 : 13 :

have a separate chapter for its pension regulations akin to the one provided for Territorial Army.

13. The counsel for the applicant had also placed before us an extract of the report presented by Raksha

Mantri's Committee of Experts on review of service and pension matters. The Committee observing that some personnel joining DSC after retiring from regular defence services, were missing out on their second pension from

DSC by a few months as they fell short of 15 years of service, had recommended provision for condonation of shortfall on case to case basis. In our view, the report of the Expert Committee is only a recommendation and no specific orders or regulations have been issued by the

Government on the subject. It is also observed that the case pertains to ex-servicemen re-enrolling in the DSC and does not pertain to DSC personnel re-enrolling in DSC after earning pension from DSC. OA No. 88 of 2015 : 14 :

14. While the applicant has placed reliance on

Annexures A5 and A6, decisions of various Benches of this

Tribunal for condonation of short fall in service for second pension, it is observed that the applicants therein had earlier served in the Army and had joined DSC thereafter.

Annexures A7 and A8 judgments do not pertain to second service pension but were over grant of first pension by condoning short fall in service.

15. As observed earlier, the provisions of Reg 6 of

Pension Regulations for the Army 2008 clearly provides that a person cannot earn more than one pension for the same service or for the same continuous service. The applicant had the option to cease to draw his pension under Reg 176 of the Pension Regulations and claim enhanced pension for his total qualifying service on his final release from the DSC.

However he opted to continue to draw his earlier pension.

Further Reg 174 (c) specifies that option once exercised shall be final and there is no provision to combine both the OA No. 88 of 2015 : 15 :

services for one enhanced pension at this stage.

16. In view of the above we do not see any merit in

the applicant's claim for grant of a second service pension

from the same service condoning short fall in service, and

the Original Application is accordingly dismissed.

17. There will be no order as to costs.

18. Issue free copy to the parties.

Sd/- sd/-

VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J) an /true copy/