UNION OF INDIA & ANRversusSURENDER SINGH PARMAR

                         [2015] 1 S.C.R. 930


A                    . UNION OF INDIA & ANR.
                                   v.
                    SURENDER SINGH PARMAR
                   (Civil Appeal No. 9389 of 2014)
                         JANUARY 20, 2015.
B
           [SUDHANSU JYOTI MUKHOPADHAYA AND
                    N.V. RAMANA, JJ.]

          Navy (Pension) Regulations, 1964: Regulation 82(a) -
C   Condonation of shortfall of pensionable service - Minimum
    qualifying period for pensionable service was 15 years - In
    the Regulations, condonation of shortfall of service was
    permissible for 1 year - Service rendered by respondent for
    13 years 10 months and 13 days - Retirement soilght on
D   compassionate ground - Respondent claimed benefit under
    the Regulations and benefit of rounding off the period of
    service in terms of Government of India Instructions dated
    30th October 1987 - Held: Instructions dated 30th October,
    1987 provided that in calculating the length of qualifying
E   service fraction of a year equal to three months and above
    but less than six months shall be treated as a completed
                                                         ,        one
    half year for reckoning qualifying service - In view of these
    provisions, the respondent is entitled to claim total period of
    service as 14 years for the purpose of calculation of pension
F   - By Government of India order dated 14th August, 2001,
    administrative power has been delegated to the competent
    authority to condone shortfall in qualifying service for grant
    of pension beyond six months and upto 12 months - In view
    of the said provision, the respondent is entitled to claim for
G   condonation of shortfall in qualifying service for grant of
    pension beyond six months and upto 12 months - Tribunal
    rightly declared that the respondent's shortfall in service stood
    condoned - Service law - Pension.


H                                 930
   UNION OF INDIA & ANR. v. SURENDER SINGH               931
                   PARMAR
    Disposing of the appeal, the Court                          A

     HELD: Government of India, Ministry of Defence
instructions dated 30th October, 1987 at clause 5
provides that in calculating the length of qualifying
service fraction of a year equal to three months and
                                                                B
above but less than six months shall be treated as a
completed one half year for reckoning qualifying service.
In view of the said provisions the respondent is entitled
to claim total period of service as 14 years for the purpose
of calculation of pension. By Government of India,              C
Ministry of Defence order dated 14th August, 2001
administrative power has been delegated to the
competent authority. Under clause (a)(v) the competent
authority has been empowered to condone shortfall in
qualifying service for grant of pension beyond six months
and upto 12 months. In view of the said provision, the          D
respondent is also entitled to claim for condonation of
shortfall in qualifying service for grant of pension beyond
six months and upto 12 months. There is no ground to
interfere with the substantive finding of the Tribunal.
However as the respondent was allowed to retire from            E
service on 24th June, 1985 when the instruction dated
14th August, 2001 was not in existence, the respondent
is entitled for such benefit from such date on which the
said instruction came into effect. The Tribunal failed to
notice the said fact but rightly declared that the              F
respondent's shortfall in service stood condoned. [Paras
7, 8 and 9] [935-D; 936-A-B, D-F]

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9389 of 2014.     ·
                                                                G
    From the Judgment and Order dated 19.11.2013 of the
Armed Forces Tribunal, Principal Bench, New Delhi in Original
Application No. 401 of 2013.

                                                                H
    932       SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A         R. Balasubramanian, Sadhna Sandhu, B. V. Balaram Das
    for the Appellants.

          Sukhjinder Singh, Alok Gupta for the Respondent.

          The Judgment of the Court was delivered by
B
        SUDHANSU JYOTI MUKHOPADHAYA, J. 1. The
  appellants have preferred this appeal against orders dated 19th
  November, 2013 and 5th March, 2014 passed by the Armed
  Forces Tribunal, Principal Bench at New Delhi in O.A. No.401
c of 2-013 and R.A No.11 of 2014 with M.A No.120 of 2014 in
  O.A. No.401 of 2013 respectively. By the impugned order dated
  19th November, 2013, the Tribunal allowed the original appeal
  filed by the respondent and held that the respondent rendered
  actual service to the extent of 14 years by rounding off, which
D makes him eligible for consideration of condonation of shortfall
  of pensionable service of one year and in view of striking off
  of Rule 82(a) the respondent cannot be denied the benefit of
  condonation of shortfall in service on the ground that he took
  the discharge from service voluntarily on his own request.
E Therefore, the Tribunal declared that the respondent shortfall in
  service stands condoned in the facts of the case and directed
  the appellants to calculate the total benefit of pension within a
  period of three months and to pay the amount. By the impugned
  order dated 5th March, 2014, the Tribunal dismissed the review
  application against its earlier order and rejected oral plea for
F leave to appeal before this Court.

          2. The factual matrix of the case is as follows:-

       The respondent joined the Indian Navy on 12th-August,
G 1971 and after rendering 13 years, 10 months and 13 days
  service sought his retirement on compassionate ground upon
  which he was released from service on 24th June, 1985. The
  minimum qualifying period for pensionable service is 15 years.
  There is a provision in the Navy (Pension) Regulations 1964
H for condonation o(shortfall in service, initially it was for six
  UNION OF INDIA & ANR. v. SURENDER SINGH                    933
 PARMAR [SUDHANSU JYOTI MUKHOPADHAYA, J.)

months and subsequently the condonation was made                     A
permissible for one year. The respondent claimed that he was
entitled to the benefit under the said Regulations and the
Government of India Instructions dated 30th October, 1987. The
appellant denied the said benefit to the respondent vide order
dated 14th August, 2001.                                             B

     3. The respondent initially approached the High Court of
Delhi by filing Writ Petition (C) No.12507C of 2004. It was
pointed out before the High Court that the Division Bench of
the Bombay High Court in Writ Petition No.430 Qf 2005 titled         C
Gurmukh Singh v. UOI vide judgment dated 22nd Novemb~r.
2006 declared the Navy (Pension) Regulation 82 (a) as null and
void being ultra vires to Article 14 of the Constitution of India.
Regulation 82(a) provided that the benefit of condonation of
shortfall in pensionable service shall not be applicable to the
case in which a sailor got the discharge from the service at his     D
own request. It was also brought to the notice of the High Court
that similar finding was given by the Delhi High Court in the
case of the respondent in Writ Petition (C) No.12507 of 2004
vide order dated 6th November, 2007 and that the appellant-
Un ion of India was directed to consider the case of the             E
respondent for the purpose of condoning the deficiency in
service and pass appropriate orders within three months.

     The appellant opposed the said prayer on the ground that
the respondent has not completed the requisite service of 14         F
years upon which only one can get the benefit of condonation
of shortfall of service upto one year. Therefore, according to the
appellant, the respondent was not eligible candidate for
condonation of the shortfall in pensionable service of one year.
Before the High Court the respondent contested the statement         G
made by the appellant that the respondent served for 13 years
8 months and 13 days and brought to the notice of the High
Court that actually he served 13 years 10 months and 13 days
which was not disputed. The respondent claimed benefit by
rounding off the period of service in terms of Government of
India Instructions dated 30th October, 1987. The Division Bench      H
    934      SUPREME COURT REPORTS               [2015) 1 S.C.R.


A   of the Delhi High Court after considering the rival submissions
    and taking note of instructions dated 30th October, 1987 by
    order dated 6th November, 2007 set aside the appellants
    earlier rejection order dated 14th August, 2001 and directed
    the appellant to re-consider the case of respondent.
B
       4. Subsequently, a contempt petition was filed by the
  respondent alleging non-compliance of the said order. The
  contempt petition was dismissed by the Division Bench of the
  Delhi High Court considering the fact that appellants after the
  decision dated 6th November, 2007 passed the order on 2nd
C July, 2008 rejecting the claim of the respondent with liberty to
  challenge the order in accordance with law. In the said contempt
  proceedings the appellants gave undertaking that decision in
  Gurmukh Singh v. UOI would be made applicable in the case
  of the respondent. Thereafter, the second order of rejection was
D challenged by the respondent before the Tribunal wherein the
  impugned order was passed by the Tribunal.

       5. The learned counsel appearing on behalf of the
  appellants submitted that the Tribunal failed to consider that as
E per Regulation 82 which was prevalent when the respondent
  was discharged, the deficiency in qualifying service could have
  been condoned only upto six months and not one year. He
  further contended that deficiency of one year as per new policy
  may be granted but the respondent has not completed 14 years
F of actual qualifying service in order to make him eligible for
  considering his case for condonation of deficiency of service
  upto one year and hence he is not entitled for the same. The
  learned counsel for the appellant further contended that
  Regulation 82(a) of the Pension Regulations for Navy, 1964
G cannot be held to be invalid and the law laid down by the High
  Court is incorrect.

       6. In the present case, the appellant has not challenged the
  validity of judgment passed by the Bombay High Court wherein
  Regulation 82(a) was declared as ultra vires. The aforesaid
H finding of the Bombay High Court was also accepted by the
  UNION OF INDIA & ANR. v. SURENDER SINGH                    935
 PARMAR [SUDHANSU JYOTI MUKHOPADHAYA, J.}

Delhi High Court in the case of the respondent. In absence of        A
any challenge before this Court, we are not inclined to decide
the question of validity of Regulation 82(a) which has already
been declared ultra vires and violative of Article 14 of the
Constitution of India.
                                                                     B
      It is not in dispute that the respondent has completed 13
years, 10 months and 13 days of service under the appellant.
In view of declaration of Regulation 82(a) ultra vires, the prayer
of the respondent for considering his case for condonation
cannot be rejected on the ground that he voluntarily sought
permission to leave the service. The aforesaid submission was        C
also accepted by the High Court in the earlier writ petition
preferred by the respondent.

     7. The note below paragraph 5 of the Government of India,
Ministry of Defence instructions dated 30th October, 1987 at         D
clause 5 provides that in calculating the length of qualifying
service fraction of a year equal to three months and above but
less than six months shall be treated as a completed one half
year for reckoning· qualifying service. The said provision reads
as follows:-                                                         E

     "5. Qualifying service.

     (a)xx                        xx                xx

     (b)xx                        xx                xx               F
     Notes:

     (1) to (4) xx                xx                xx

     (5)1n calculating the length of qualifying service fraction     G
     of a year equal to three months and above but less than
     six months shall be treated as a completed one half year
     and reckoned as qualifying service."

     8. In view of the aforesaid provisions the respondent is        H
    936        SUPREME COURT REPORTS               [2015] 1 S.C.R.


A entitled to claim total period of service as 14 years for the
  purpose of calculation of pension. By Government of India,
  Ministry of Defence order dated 14th August, 2001
  administrative power has been delegated to the competent
  authority under clause (a)(v) the competent authority has been
B empowered to condone shortfall in qualifying service for grant
  of pension beyond six months and upto 12 months. The said .
  provision reads as follows:-

                "(a)(v)Condonation of shortfall in Qualifying
          Service for grant of pension in respect of PBOR beyond
c         six months and upto 12 months."

        9. In view of the aforesaid provision, the respondent is also
  entitled to claim for condonation of shortfall in qualifying service
  for grant of pension beyond six months and upto 12 months. If
D the aforesaid power has not been exercised by the competent
  authority in proper case then it was within the jurisdiction of the
  High Court or Tribunal to pass appropriate order directing the
  authority to condone the shortfall and to grant pension to the
  eligible person, which has been done in the present case and
E we find no ground to interfere with the substantive finding of the
  Tribunal. However as we find that the respondent was allowed
  to retire from service on 24th June, 1985 when the instruction
  dated 14th August, 2001 was not in existence, we hold that the
  respondent is entitled for such benefit from such date on which
F the said instruction came into effect. The Tribunal failed to notice
  the aforesaid fact but rightly declared that the respondent's
  shortfall in service stands condoned. In the facts of the case,
  we are of the view that it should have been made clear that the
  respondent shall be entitled to benefit w.e.f. 14th August, 2001
G and not prior to the said date. The order passed by the Tribunal
  stands modified to the extent above. The appeal stands
  disposed of with aforesaid observations.

    Devika Gujral                                   Appeal disposed of.