The Kochi Bench of the Armed Forces Tribunal (AFT) has struck down a recent amendment to the Pension Regulations for the Army, 2008, which prevented Defence Security Corps (DSC) retirees with minor shortfall in pensionable service from earning a second service pension.
The judgment, which will benefit hundreds of retirees from the DSC, came on a petition filed by T. Mohanan, 60, a former Naik of the DSC and a resident of Changanassery, who fell short by 94 days of qualifying service, which is 15 years, to be eligible for pension for his service in the DSC.
Mr. Mohanan enrolled himself in the DSC after securing his discharge from the army with service pension, but his request for a second service pension on superannuation from the DSC was rejected citing the shortfall in qualifying service. In fact, Regulation 44 of the Pension Regulations for the Army, 2008, provides for condoning deficiency in service of up to 12 months by a competent authority for grant of service pension.
However, the DSC and the Union government argued that the government policy, issued in 2012, did not allow condonation of service shortfall for grant of second service pension. They further said that a clause inserted in the Pension Regulations as recently as June, 2017, prevented grant of second service pension to DSC retirees with shortfall in qualifying service.
The AFT had, in 2015, overturned the denial of second service pension in a similar case, stating that “in the absence of any bar or interdiction to earn second service pension in the statutory provisions, a government letter to overrule the provisions could not be sustained.”
But the amendment to the Pension Regulations carried out in 2017 needed examination to see if it was ultra vires, arbitrary, and needed abrogation. The tribunal observed that “essentially the persons who were being denied condonation were those individuals who were discharged at their request, individuals eligible for special pension, and those being invalided out with less than 15 years of service” (sic). But the Supreme Court had in the past held that even a person who had sought discharge form service at his own request prior to the completion of minimum qualifying service of 15 years was eligible for condonation of deficiency in service.
The new amendment to the pension regulation was, therefore, arbitrary, observed the Tribunal Bench comprising judicial member Babu Mathew P. Joseph and administrative member Vice Admiral (retd) M.P. Muraleedharan.
“When even a person who seeks discharge on his own prior to completion of minimum qualifying service is permitted condonation, to deny the same to a person who has fallen short of service due to his reaching the age of superannuation would be arbitrary and discriminatory,” the Bench held, striking down the amendment to the Regulation 44 of the Pension Regulations of the Army, 2008.
