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PETITIONER: KAMAL SINGH GHUGTYAL

       Vs.

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT03/11/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1988 AIR  101            1988 SCR  (1) 769  1987 SCC  Supl.  656     JT 1987 (4)   246  1987 SCALE  (2)931

ACT:      Pension  Regulations  for  the  Army,  1961  (Part  1): Regulations Nos.  132 & 126: Entitlement to pension-Havaldar rendering less  than qualifying service-Held not entitled to pension.

HEADNOTE:      Regulation No.  132 of Pension Regulation for the Army, 1961 (Part  I) prescribes  minimum qualifying colour service of fifteen years for earning service pension. Regulation No. 126 provides for counting of former service.      The  petitioner’s   representation  for   pension   was rejected on  the ground  that he  had not  been in  the Army service for  a period of 15 years as required under the Army Pension Rules.      In the writ petition the petitioner claimed that he had served in  the Army  from November 1939 to August 1948, when he was  released in  the rank of Havaldar, that he was again recalled and  served in the Army Supply Corps (MT) from July 1948 to July 1953 in the rank of Havaldar, when he was again recalled by  the Kumaon  Regiment  and  served  in  the  Lok Sahayak Sena  from July  1953 to  July 1956  in the  rank of Havaldar. He  further stated that service rendered by him in the LSS  (third spell)  should be treated as services in the army and  he having served for more than 15 years m the army was entitled to pension.      His claim  that he  was in the army service for over 19 years, was contested by the respondents, who stated that the petitioner was enrolled in the Army on November 24, 1940 and discharged from  service with  effect from October 26, 1946, that he  was subsequently  re-enrolled in ASC (MT) with Army on March  8, 1948 and discharged from there on May 20, 1952, and that  he has  re-enrolled with  the Kumaon  Regiment  on March 2, 1955 for Lok Sahayak Sena and discharged from there on September 2, 1957. It was further stated that the service rendered by him in LSS was not countable towards pension and that his service in the first two spells was 10 years and 54 days only.      The petitioner  could not produce relevant documents in support of his statement. 770

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    Dismissing the writ petition, ^      HELD: The  petitioner has not rendered 15 years of army service to  be able  to get  the benefit  of army pension as required under the army rules. [772F]      The statements  of the petitioner regarding the periods of service rendered by him in the first and the second spell are inconsistent  with his record of service produced by the respondents at the hearing. [772D-E]      His service  in  the  National  Volunteer  Force  (LSS) cannot be treated as army service countable towards pension. [772D]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 1702 of 1986.      (Under Article 32 of the Constitution of India)      K.M.M. Khan Amicus Curiae for the Petitioner.      O.P. Sharma,  Mrs. Subhadra and P. Parmeshwaran for the Respondents.      The Judgment of the Court was delivered by      B.C. RAY,  J. The  petitioner who was a Havaldar in the Army (No. 4 142276) has moved this writ petition praying for an order  directing the  respondent Nos.  1  to  3  to  give pensionary benefit  to the petitioner as he has served about 19 years  in the  army as  a Havaldar.  The  petitioner  has stated that  in the  first spell  he has  served  in  Kumaon Regiment from  November, 1939  to August,  1947  during  the second world  war. He  was released from the army service in August, 1947  in the  rank  of  Havaldar  (No.  16235).  The petitioner was  again recalled during Kashmir operations, in the Kumaon  Regiment and  he served in the Army Supply Corps (MT) from  July, 1948  to July, 1953 in the rank of Havaldar (DUR-No. 6556074). The petitioner further stated that he was recalled from  Army Supply Corps (MT) by Kumaon Regiment and transferred to  impart training  in the  Lok Sahayak Sena of K.R.C. Platoon  No. 28  where he  served from  July, 1953 to July, 1956 in the rank of Havaldar. As his job was to impart military training  to Lok Sahayak Sena which is like NCC, he retained a  regular army  No. 4142276. The petitioner stated that in  an alleged  incident of storing illicit arms in his house, there was a police raid and all his papers 771 were taken  away by  the police and as such he had no papers left with  him to  prove his  service in  the  regular  army except a statement of accounts QE 11/56, a copy of which has been annexed  as annexure  P-2. It  has been stated that the petitioner was  intimated by a letter dated 27.9.1983 issued by the  District  Sanik  Welfare  and  Resettlement  office, Almora in  reply to  his representation  for pension that he has not been in the army service for a period of 15 years as required, to  be entitled  to get  pension according to Army Pension Rules.  His claim  for army  pension was, therefore, rejected: This  letter has  been annexed  as annexure P-5 to the writ  petition. The  petitioner has  stated in  the writ petition that  his service rendered in the LSS (third spell) should be  treated as  service in  the army  and  he  having served for  more than  15 years  in the  army is entitled to pension.      An affidavit-in-opposition  has been filed on behalf of the respondents sworn by Capt. P.E. Joseph. In para 1 of the said affidavit  it has  been stated  that the petitioner was originally  enrolled   with  the  Kumaon  Regiment  on  24th November, 1940  and discharged from service with effect from

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26th October,  1946. He  was subsequently re-enrolled in ASC (MT) with Army No. 6556074 on 8th March, 1948 and discharged from there  on 20th  May, 1952.  It has  been further stated that in  the third  spell of service he was re-enrolled with the Kumaon  Regiment on 2nd March, 1955 for Lok Sahayak Sena and allotted  Army No. 4142276. He was discharged from there on 2nd September, 1957. It has been further stated in para 3 of the  said affidavit that the claim of the petitioner that he was  in army  service for  over 19 years was not based on facts. It  has been  further stated  that his service in the first two  spells is  10 years  and 54 days only and even if his service  with  29  LSS  is  counted  towards  qualifying service his total service would be less than 15 years. So he will not  be entitled  to pension  as per  the  extent  army rules. The  petitioner on  the  other  hand  was  unable  to produce relevant  documents  in  support  of  his  statement regarding the  period of  his service  in the  army rendered both in  the first  and second  spell of service. It appears from a  letter  dated  21st  October,  1982  issued  by  the Lieutenant, Sahayak Abhilekh Adhikari, Asstt. Record officer for OIC  Records that the service rendered by the petitioner in LSS  cannot be  counted towards pension as the members of that unit are not treated as army personnel. This letter has been annexed  as annexure  ’D’ to  the counter-affidavit. It has been  further stated  in the  affidavit that  since  the individual has  not served  in the  army as an incumbent for more than  15 years,  he is  not entitled  to any pension as contemplated under the army rules. 772      A supplementary  counter-affidavit  on  behalf  of  the respondents  verified   by  2nd  Lieutenant  Jagdish  Singh, Records Kumaon  Regiment, Ranikhet has been filed wherein it has been  stated in  para 9  that the  petitioner having not completed the required 15 years of service, was not entitled to pension  as per prevalent rules. It also appears from the letter dated  3rd February,  1987 issued under the signature of  Major,   Senior  Record  officer  for  officer-in-Charge addressed  to   the   organisation   Directorate,   Adjutant General’s  Branch,   Army  Headquarters   that   since   the petitioner had not completed 15 years pensionable service in both the  spells, he  was not entitled to service pension as per the  existing orders. It has been further stated therein that the petitioner’s service in 28 National Volunteer Force (LSS) training  team was  not countable  towards pension for which necessary  clarification had already been given by the CDA(P), Allahabad vide letter dated 21st October, 1982.      The respondents  at the  time of  hearing produced  the relevant records  wherefrom it  appears that  the petitioner has not completed 15 years of army service as his service in the LSS  can not  be treated  as army  service. It  is  also evident that  the statements of the petitioner regarding the periods of  service rendered  by him  in the  first and  the second spell  are inconsistent with his record of service as mentioned in  the letter  dated February 3, 1987, annexed as annexure ’B’ to the supplementary counter-affidavit filed on behalf of  the respondents as well as from the letter issued under the  signatures of  Sahayak Abhilekh  Adhikari, Asstt. Record officer  for OIC  Records  dated  October  16,  1981, annexed as  annexure P-4  to  the  writ  petition  The  army regulation Nos.  126 and  132 were  also placed before us in this  connection.  We  are  constrained  to  hold  that  the petitioner has  not rendered  15 years of army service to be able to  get the  benefit of  army pension as required under the army rules. Writ Petition is therefore, dismissed. There will however. be no order as to costs.

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P.S .S.                                  Petition dismissed. 773