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PETITIONER:

UNION OF INDIAN & ORS.

Vs.

RESPONDENT:

LT. COL. P. S. BHARGAVA

DATE OF JUDGMENT: 10/01/1997

BENCH:

J.S. VERMA, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

KIRPAL, J.

In this appeal, from the judgment of the Guwahati High

Court, the question of law requiring consideration is

whether an army officer, who has earned pensionary and other

retirement benefits, must forfeit the same on his resigning

the job from the Army.

The respondent joined the Army Dental corps sometimes

in the year 1960. He was given grading in Army in 1962.

Thereafter he served in different capacities and was

classified as a specialist and had been promoted to the rank

of Lt. Colonel. On 2.1.1984 the respondent wrote a letter

requesting for permission to resign from the service w.e.f.

30.4.1984 or from an early date. The said letter contained

the reasons why he wanted to resign. The said resignation

was accepted by communication dated 24.7.1984 in which it

was stated that the respondent shall stand relieved of all

army duties as early as possible, but not latter than

24.8.1984. In this latter, it was also mentioned that

consequent upon his resignation the respondent shall not be

entitled to gratuity, pension, leave pending resignation and

travel concession.

On the receipt of the aforesaid letter, the respondent

wrote a letter dated 18.8.1984 stating that he was not

interested in leaving the service. This was followed by an

another letter dated 22.8.1984 wherein the respondent prayed

for cancellation of permission to resign. It was also stated

therein that if it was not possible to cancel such

permission, then his application may be treated as being one

for release/pre-mature retirement. These letters were

presumably written because the respondent realised that he

was being deprived of pension, gratuity etc. as a

consequence of his resignation. The respondent's letters

dated 18.8.1984 and 22.8.1984 were not accepted and the

respondent was "struck off" the strength on 24.8.1984.

The respondent soon after writing of letter dated

22.8.1984, filed a writ petition in the Guwahati High Court

being Civil Rule No. 570 of 1984. The relief which was

sought in that Civil Rule related only to the acceptance of

his resignation. Two contentions were urged before the High

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Court which were (1) the resignation was not accepted by the

competent authority and as such the acceptance of

resignation could not be given effect to and: (ii) the

letter of withdrawal should have been considered by the

authority and the petitioner ought to have been allowed to

withdraw the letter seeking the permission for resignation.

This writ petition was, however, rejected.

The respondent then filed a fresh writ petition being

Civil Rule No. 1994 of 1986 in which it was contended that

he should not be deprived of pension and other benefits. It

was contended that the pension was not a matter of grace and

as he had completed the qualifying service, he was entitled

to the pensionary and other benefits.

The appellants, in its reply before the High Court,

relief upon a letter dated 25.4.1981 of the Army Headquarter

in which it was, inter alia. stated that if an officer was

permitted to resign his commission, then he would not be

entitled to any terminal benefits such as pension, gratuity

and leave pending resignation.

The Guwahati High Court vide its judgment dated

25.4.1987 came to the conclusion that it was unreasonable to

deny terminal benefits like pension in cases of resignation

where prior permission was necessary to resign. Without

striking down the contents of the aforesaid letter dated

25.4.1981 it came to the conclusion that the conduct of the

respondent showed that he did not intend to lose his pension

and other terminal benefits. It held that the aforesaid Army

Headquarter's letter, containing the provision of automatic

forfeiture of pensionary and other benefits in case of

resignation, did not appear to be reasonable and could not,

therefore, be given effect to. In this connection, it

observed that "as validity of this provision has not been

challenged in the present proceeding, we are leaving the

matter only by saying that we are not enforcing the

provision". The High Court, accordingly, allowed the writ

petition and directed the appellants herein to make

available to the respondent all the admissible terminal

benefits.

On the day the judgment was pronounced, a request was

made for a certificate to leave to this Court. This prayer

was rejected. Thereafter the High Court suo moto by order

dated 30.4.1987 issued a certificate under Article 134 A (a)

of the Constitution observing that this was a fit case for

appeal to this Court under Article 133(1) of the

Constitution. Hence, this appeal.

It has been first sought to be contended on behalf of

the appellant that the second writ petition should not have

been entertained by the Guwahati High Court because the

respondent had earlier filed a writ petition challenging the

acceptance of his resignation but had not claimed any relief

with regard to the terminal benefits. It is fairly conceded

by Mr. Goswami, the learned counsel for the appellant, that

this contention was not raised before the High Court and, in

our opinion, it will not be proper, at this late stage, to

allow the Union of India to raise the contention in this

appeal for the first time.

It was then submitted on behalf of the appellant that

according to the aforesaid letter dated 25.4.1981, there was

an automatic forfeiture of the terminal benefits on the

resignation of the respondent having been accepted and the

High Court erred in granting relief to the respondent.

It will be appropriate, at this stage, to refer to the

provisions regarding the grant of terminal benefits to which

our attention has been invited. The grant of pension to the

army personnel is governed by "Pension Regulations for the

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Army" (hereinafter referred to as "the Pensions

Regulations"). These Regulations have been issued under the

authority of the Government of Indian and they apply to the

personnel of Regular Army, the Defence Security Corps and

the Territorial Army.

Regulation 22 of the Pension Regulations relates to the

grant of pension and is as under:

"An officer permitted to retire

from service may be granted a

retiring pension or gratuity in

accordance with the regulations in

this chapter, provided that a

retiring gratuity may be granted at

the discretion of the President

only in an exceptional case to an

officer who is permitted to retire

or whose service are otherwise

terminated after completing the

minimum qualifying service".

Regulation 25 provides for the qualifying service and

is in the following terms:

"25(a) The minimum period of

qualifying service required for a

retiring pension is 20 years (15

years in the case of a late entrant

see regulation 15). Only completed

years of qualifying service shall

count.

(b) The minimum period of

qualifying service for a retiring

gratuity shall be 10 years.

The service which qualifies for pension is provided for

in Regulations 26. Regulation 38 provides that "All service

which qualifies in full for retiring pension also qualifies

for gratuity and on the same conditions

It would appear from the aforesaid Regulations that on

the completion of the qualifying service, an officer, like

the respondent, would be entitled to get pension and

gratuity. The Regulations, however, contained three

provisions which specifically provide for situations where

full amount of pensionary benefits need not be given. These

are Regulations 3.4 and 16 which read as under:

(3) The full rate of pension or

gratuity provided for in these

Regulations shall not be granted

unless the service rendered has

been satisfactory. If the service

has not been satisfactory, the

competent authority may make such

reduction in the amount of pension

or gratuity as it thinks proper.

(4) Future good conduct shall bean

implied condition of every grant of

a pension or allowance.

(16)(a) When an officer who has to

his credit the minimum period of

qualifying service required to earn

a pension, is cashiered or

dismissed or removed from the

service, his/her pension may, at

the discretion of the President, be

either forfeited or be granted at a

rate not exceeding that for which

he/she would have otherwise

qualified, had he/she retired on

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the same date.

(b) When an officer who has to

his/her credit the minimum period

of qualifying service required to

earn a pension is called upon to

retire or to resign or in the event

of his/her refusing to do so is

retired from or gazetted out of the

service, he/she may at the

discretion of the President be

granted a pension at a rate not

exceeding that for which he/she

would have otherwise qualified, had

he/she retired on the same date in

the normal manner."

The mere perusal of Regulation 3 shows that the

competent authority may make a reduction in the amount of

pension or gratuity if the service has not been

satisfactory. The reading of this Regulation clearly shows

that normally full rate of pension of gratuity is to be

granted unless the service which is rendered is not

satisfactory. It is not the case of the appellant that the

respondent's service was not satisfactory. Therefore, no

reduction of pension or gratuity under Regulation 3 could

have been ordered.

Regulation 4 makes it a condition for the grant of

pension or allowance that the conduct of the officer must be

good. There is no suggestion that the conduct of the

respondent was such as to deprive him of the terminal

benefits under

Regulation 4.

Regulation 16(a) gives the President the power either

to forfeit or to reduce the rate of pension in the event of

an officer being cashiered, dismissed or removed from the

service. Under sub-regulation (b) of Regulation 16, if an

officer is called upon to retire on resign, he may at the

discretion of the President be granted a pension at a rate

not exceeding what he would have otherwise qualified.

Regulation to gives the power to the President to reduce or

forfeit the pension of an officer who has to his credit the

minimum period of qualifying service only in the event of

his being cashiered, dismissed or removed from the service.

Even in such a circumstance, there is no automatic

forfeiture of pension or gratuity. An officer whose service

is terminated by reason of his being cashiered, dismissed or

removed from the service would normally be entitled to get

his pension though the President has a right to forfeit or

reduce the pension.

Regulation 16 does not cover a case of voluntary

resignation. Regulation 16(b) does refer to a case where an

officer who has to his credit the minimum period of

qualifying service being called upon to resign whose pension

can be reduced. Had the Regulation intended to take away the

right of a person to the terminal benefits on his voluntary

resigning, then a specific provision similar to Regulation

16(b) would have been incorporated in the Regulations but

this has not bee done. Once an officer has to his credit the

minimum period of qualifying service, he earns a right to

get pension and as the Regulations stand, that right can be

taken away only if an order is passed under Regulation 3 or

16. The cases of voluntary resignations of officers, who

have to their credit the minimum period of qualifying

service are not covered by these two Regulations and,

therefore, such officers, who voluntary resign, cannot be

automatically deprived of the terminal benefits.

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The letter of 25.4.1981 issued by the Army Headquarter

does state that pensionary benefits will be lost if an

officer resign from service, but it has not been shown to us

that this latter, in any way, supersedes or purports to

amend or modify the aforesaid Regulations. In view of the

specific right of pensionary benefits having granted by the

said Regulations no effect need be given to the letter dated

25.4.1981.

In our opinion, the decision of the High Court under

appeal, whereby the writ petition filed by the respondent

had been allowed, calls for no interference. The appeal is,

accordingly, dismissed with costs. Counsel for Rs. 5,000/-

(Rupees Five Thousand only).