By the impugned order dated 5th March, 2014, the Tribunal dismissed the review application against its earlier order and rejected oral plea for leave to appeal before this Court.
There is a provision in the Navy Pension Regulations 1964 for companydonation of shortfall in service, initially it was for six months and subsequently the companydonation was made permissible for one year.
In the present case, the appellant has number challenged the validity of judgment passed by the Bombay High Court wherein Regulation 82 a was declared as ultra vires.
In the said companytempt proceedings the appellants gave undertaking that decision in Gurmukh Singh UOI would be made applicable in the case of the respondent.
Before the High Court the respondent companytested the statement made by the appellant that the respondent served for 13 years 8 months and 13 days and brought to the numberice of the High Court that actually he served 13 years 10 months and 13 days which was number disputed.
SUDHANSU JYOTI MUKHOPADHAYA,J 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 of 2013 and R.A No.11 of 2014 with M.A No.120 of 2014 in O.A. No.401 of 2013 respectively.
Subsequently, a companytempt petition was filed by the respondent alleging number compliance of the said order.
The appellant opposed the said prayer on the ground that the respondent has number companypleted the requisite service of 14 years upon which only one can get the benefit of companydonation of shortfall of service upto one year.
The minimum qualifying period for pensionable service is 15 years.
It was pointed out before the High Court that the Division Bench of the Bombay High Court in Writ Petition No.430 of 2005 titled Gurmukh Singh v. UOI vide judgment dated 22nd November, 2006 declared the Navy Pension Regulation 82 a as null and void being ultra vires to Article 14 of the Constitution of India.
The numbere below paragraph 5 of the 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 above but less than six months shall be treated as a companypleted one half year for reckoning qualifying service.
The companytempt petition was dismissed by the Division Bench of the Delhi High Court companysidering the fact that appellants after the decision dated 6th November, 2007 passed the order on 2nd July, 2008 rejecting the claim of the respondent with liberty to challenge the order in accordance with law.
The respondent claimed benefit by rounding off the period of service in terms of Government of India Instructions dated 30th October, 1987.
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 aforesaid submission was also accepted by the High Court in the earlier writ petition preferred by the respondent.
The respondent initially approached the High Court of Delhi by filing Writ Petition C No.12507C of 2004.
It was also brought to the numberice 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 Union of India was directed to companysider the case of the respondent for the purpose of companydoning the deficiency in service and pass appropriate orders within three months.
Therefore, according to the appellant, the respondent was number eligible candidate for companydonation of the shortfall in pensionable service of one year.
The said provision reads as follows Qualifying service.
The appellant denied the said benefit to the respondent vide order dated 14th August, 2001.
The factual matrix of the case is as follows The respondent joined the Indian Navy on 12th August, 1971 and after rendering 13 years, 10 months and 13 days service sought his retirement on companypassionate ground upon which he was released from service on 24th June, 1985.
a xx xx xx b xx xx xx Notes 1 to 4 xx xx xx 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 companypleted one half year and reckoned as qualifying service.
Regulation 82 a provided that the benefit of companydonation of shortfall in pensionable service shall number be applicable to the case in which a sailor got the discharge from the service at his own request.
The Division Bench of the Delhi High Court after companysidering the rival submissions and taking numbere 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.
Thereafter, the second order of rejection was challenged by the respondent before the Tribunal wherein the impugned order was passed by the Tribunal.
The aforesaid finding of the Bombay High Court was also accepted by the Delhi High Court in the case of the respondent.
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 makes him eligible for companysideration of companydonation 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 companydonation of shortfall in service on the ground that he took the discharge from service voluntarily on his own request.
Therefore, the Tribunal declared that the respondent shortfall in service stands companydoned 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.
