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Armed Forces Tribunal Regional Bench, Kochi O.A.No

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Armed Forces Tribunal Regional Bench, Kochi O.A.No ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 88 OF 2010 MONDAY, THE 7TH DAY OF JANUARY 2013/17TH POUSHA, 1934 CORAM: HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J) HON'BLE LT.GE.THOMAS MATHEW, PVSM, AVSM,MEMBER (A) APPLICANT: K. SASIDHARAN, AGED 64 YEARS, (EX 289145 CORPORAL OF INDIAN AIR FORCE), 'SURYA', KOTTAPURAM, SOUTH PARAVUR, KOLLAM DISTRICT, KERALA. BY ADV.SRI.V.K.SATHYANATHAN. VERSUS RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE , SOUTH BLOCK, NEW DELHI. 2. THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSION), OFFICE OF THE P.C.D.A. (P), DRAUPADI GHAT, ALLAHABAD, U.P. 3. THE AIR OFFICER COMMANDING, AIR FORCE RECORD OFFICE, SUBROTO PARK, NEW DELHI – 10. BY ADV.SMT.E.V.MOLY, CENTRAL GOVT. COUNSEL O.A.No. 88 of 2010 : 2 : O R D E R Shrikant Tripathi, Member (J): 1. Heard Mr.V.K.Sathyanathan for the applicant and Smt.E.V.Moly for the respondents and perused the record. 2. The applicant No.289145, an Ex Corporal of the Indian Air Force has filed the instant Original Application for reservist pension. 3. The relevant facts of the case are that the applicant was enrolled in the Indian Air Force on 5th April 1966 and was discharged therefrom on 30th April 1975 on fulfilling the conditions of his enrollment on completion of regular service and not being required to serve in reserve. By the time the applicant was discharged he had rendered 9 years and 26 days of regular service. But in view of the fact that his entire service was less than the minimum qualifying service of 15 years for pension, he was denied pension. 4. Mr.V.K.Sathyanathan appearing for the applicant O.A.No. 88 of 2010 : 3 : submitted that according to the long roll (Annexure R4), the term of the engagement of the applicant was 9 years regular and 6 years reserve. The entries made in the long roll, according to Mr.V.K.Sathyanathan, are corroborated even by para 13 of the discharge book (Annexure A1). He further submitted that it was disclosed in the discharge certificate that the applicant was liable to be inducted into reserve service at any time during the stipulated period of reserve liability as per provisions of the Reserve and Auxiliary Air Forces Act, 1952. 5. The counsel for the respondents, on the other hand, submitted that there was no order to transfer the applicant from regular to reserve service at the time of his discharge or any other time prior to the discharge. He further submitted that the applicant was discharged on compassionate ground on fulfilling the conditions of his enrollment. The counsel for the respondents next submitted that even according to the applicant's representation dated 30th June 2010 (Annexure A2), the applicant was unwilling O.A.No. 88 of 2010 : 4 : for further extension of regular service after 9 years due to domestic problems and as such the discharge was granted. In view of the fact that the applicant had himself claimed the discharge due to domestic problems, there was no reason to transfer him to the reserve. 6. In our view, it is true that the applicant was recruited in the Air Force for 9 years regular and 6 years reserve, but this much was not sufficient to grant him reservist pension. It was also required to be proved that he was transferred from regular service to the regular reserve. But in this case no order for transferring him to the regular reserve was passed. It appears that as the applicant had requested for his discharge due to domestic problems, his services were not transferred to the regular reserve. 7. The Reserve and Auxiliary Air Force Act, 1952 (hereinafter referred to as 'the Act') deals with the reserve service in the Air Force. Section 2(a) defines 'Air Force Reserve' which means any of the Air Force Reserves raised and maintained under the Act. Section 2(b) defines the O.A.No. 88 of 2010 : 5 : “Competent Authority” which means an air officer or a committee consisting of two or more air officers appointed under section 3. 8. Section 4 of the Act deals with the constitution of regular Air Force Reserve which provides as follows: “4.Constitution of Regular Air Force Reserve: The Central Government may raise and maintain in the manner hereafter in this Chapter provided an Air Fore Reserve to be designated the Regular Air Force Reserve which shall consist solely of persons transferred or appointed to it under Section 5.” 9. Section 5 of the Act provides for the recruitment to the regular Air Force Reserve. The provisions of the section 5 (1) being relevant on the point are reproduced as follows: “5. Recruitment to the Regular Air Force Reserve - (1) The competent authority may, by general or special order, transfer to the Regular Air Force Reserve - O.A.No. 88 of 2010 : 6 : (a) any officer or airman of the Air Force who under the terms and conditions of his service is liable to serve in any Air Force Reserve if and when constituted; (b) any officer or airman of the Air Force whose commission or engagement in the Air Force has been terminated before the commencement of this Act and who under the terms of his commission or engagement was liable to serve in any Air Force Reserve if and when constituted; (c)any officer or airman who has served in the Air Force and has retired therefrom; and any officer or airman so transferred shall be deemed to be a member of the said Reserve.” 9. Section 5, as extracted above, lays down the various categories of the officers or Airmen of the Air Force who can be transferred to regular Air Force Reserve. The first category of the officers or Airmen are those who under the terms and conditions of their service, are liable to serve in any Air Force Reserve. The second category of the O.A.No. 88 of 2010 : 7 : officers or Airmen are those whose commission or engagement in the Air Force has been terminated before the commencement of the Act and who under the terms of their commissions or engagements were liable to serve in any Air Force Reserve and lastly the Officers or Airmen who have served in the Air Force and have retired therefrom. The competent authority has power to transfer such officers or Airmen to the regular Air Force Reserve. He may do so by a general or special order, but it is also to be kept in mind that such transfers had to be made as and when Air Force Reserve is constituted. If there is no Air Force reserve nor it is constituted, there will be no question to apply Section 5 of the Act and to make transfer to regular Air Force Reserve. It is thus clear that there should be at least an order of the competent authority for transfer of any officer or Airman falling in any of the aforesaid categories to the regular Air Force Reserve. In absence of any such order, it cannot be held that the person claiming the reservist pension or any other benefit as reservist is or has been a part of the Air O.A.No. 88 of 2010 : 8 : Force Reserve. 10. In our view, in the present matter there is no material to show that the applicant was transferred to the regular Air Force Reserve in terms of section 5 of the Act. 11. In view of the aforesaid, the applicant cannot be said to be entitled to reservist pension only on the ground that his term of engagement was for 9 years regular and 6 years reserve. It was also required to be proved that he had been transferred to regular Air Force reserve in terms of section 5 of the Act. But this was not done in this case. 12. The learned counsel for the applicant lastly submitted that the doctrine of promissory estoppal was applicable in this case and the respondents were estopped from denying the fact that the applicant was kept in reserve. In our view, the doctrine of promissory estoppal is not attracted in the present case in view of the fact that no order as required by section 5 of the Act was passed. Merely O.A.No. 88 of 2010 : 9 : because the enrollment was made for 9 years regular and 6 years reserve, the doctrine of promissory estoppal does not apply. It could apply only when some order under section 5 of the Act had been passed. 13. In view of the aforesaid, there is no merit in the Original Application and it is accordingly dismissed. 14. There will be no order as to costs. 15. Issue copy of the order to both side. Sd/- Sd/- LT.GEN.THOMAS MATHEW JUSTICE SHRIKANT TRIPATHI MEMBER (A) MEMBER (J) an.
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