Union of India and Others v. Darshan Singh Bal and Others

SURESHWAR THAKUR , J .

¶1All the writ petition(s) herein involve common questions of facts and law, as such, they are liable to be decided through a common verdict.

¶2For the sake of brevity, the facts of CWP-17046-2024 are taken up here for deciding the instant lis.

¶3The petitioner herein is aggrieved by the order of the Ld. Armed Forces Tribunal, Chandigarh passed on 25.05.2023 in OA 1429 of 2017 titled as'Darshan Singh Bal and Others Vs. UOI and Others', whereby the said OA has been allowed and the respondents No. 1 and 2 were granted revised reservist pension.

¶4The respondent No.1 was enrolled in Army on 05.01.1957 with a tenure of 10 years of colour service and 10 years of reserve service. He was transferred to reserve service on 30.05.1967 and was discharged on 31.01.1977 on completion of his reserve period. Similarly, respondent No. 2 was enrolled in Army on 22.05.1956 with a tenure of 10 years of colour service and 10 years of reserve service. He was transferred to reserve service on 07.08.1966 and was discharged on

31.05.1976.

¶5The petitioner herein-Union of India challenges the order (supra) passed by the Ld. Armed Forces Tribunal, wherebys, the Union of India was directed to process the case of the petitioner(s) therein for revision of pension in terms of Regulation 155 of the Pension rdRegulation for Army, 1961 but not at a rate lesser than 2/3 of the lowest pension admissible to the lowest category of a Sepoy and the same be revised from time to time and consequential benefits be released to the applicants. Conspicuously in terms of the policy decision/amendment of 30.10.1987, the benefits thereof, became bestowed upon all the petitioner(s), who retired even prior to the coming into force of the said policy/amendment/notification dated

30.10.1987.

¶6Likewise, the other respondents (in the writ petition(s) (supra) also became discharged from service prior to the coming into force of the policy/amendment/notification dated 30.10.1987. Therefore, since the hereafter formulated question(s) of law relate to the respective assignments of retrospectivity or prospectivity rather to the policy/notification/amendment (supra), therebys all the writ petition(s) become amenable to be decided through a common verdict. Averments of the petitioner(s)-Union of India.

¶7When the matter was taken up for hearing on 01.08.2024, this Court had formulated the hereinafter extracted questions of law and also directed the petitioners to file a detailed affidavit in the said regard.

(i) Whether the 'One Rank One Pension Scheme' can override the provisions of Regulation 155 of the Pension Regulations of Army, 1961 ?

(ii) Whether the members of the force, who had superannuated or been discharged from the defence services before

01.01.1986, can be given the benefit of the provisions of Regulation 155 of the Pension Regulations of Army, 1961, which were amended by the notification dated 30.10.1987 ?

¶8Pursuant to the said made order by this Court, on

01.08.2024, the petitioners-Union of India filed a detailed affidavit to the said extent, which is taken on record. The relevant paragraphs No.7 and 8 of the affidavit are extracted hereinafter. "7. That it is further submitted before this Hon'ble Court that the aforementioned policy dated 30.10.1987 has been made effective from 01.01.1986 and clause 2.1 of the said policy has categorically laid down the category of personnel upon whom such policy will be applicable from 01.01.1986. As per Clause 2.1 of the policy, the provisions of the letter were applicable to those Armed Forces personnel who were in service as on 01.01.1986 or joined/join service thereafter. For the ready reference, clause 2.1 is also reproduced as follows: "2.1 The provisions of this letter shall apply to the Armed Forces Personnel who were in service as on 01.01.1986 or joined/join service thereafter."

¶8That, it is now apposite to place this pertinent fact that all the respondents in present petitions have completed their combined colour and reserve service much before 01.01.1986, wherein their pension was determined and calculated under the old provisions of Para 155 of Pension Regulations, 1961. Respondent under present petitions were not covered or affected by the aforementioned policy in terms of Clause 2.1 of the said policy and therefore the provision of rdcalculating/granting reservist pension at the rate of 2/3 pension admissible to a sepoy will not be applicable upon respondent in these KAVNEET SINGH petitions." Reasons for answering questions No. 1 and 2 against the present petitioners-Union of India.

¶9Before proceeding to record reasons to the above formulated questions of law, it is necessary to dwell upon the concept of the erstwhile colour and reserve service and reservist pension. The said concept is etched in the principle that in the earlier times, many Sepoys were enrolled in the Army (and other defence services) under the Colour / Reserve system of enrolment, whereunders a person had to serve approximately 7 years in Colours (Physical service) and 8 years in Reserves and ultimately as per Regulation 155 of the Pension Regulations of the Indian Army, 1961 they were to be released a pension called "Reservist Pension", but on completion of 15 years of combined Colour and Reserve service, both tenures whereof, thus count as qualifying service for pension, irrespective of the period spent in reserves. The Colour/Reserve system of enrolment was regulated in many forms such as the 7+8, 6+9, 9+6, 5+10, 10+5 years etc. format, but the total of the apposite colour and reserve qualifying service but was mandatorily required to be performed for a period of 15 years rather for the reservist pension becoming endowed to the defence personnel. Therefore, all the present respondents (petitioners in the O.A.) do evidently qualify the total of the relevant period of qualifiable pensionable service both on the apposite roll(s) of reservist as well as of colour service.

¶10However, now the striking fact is that, in terms of Para 155 of Pension Regulations, 1961 which became correspondingly amended vide Ministry of Defence Letter No. 1 (5)/87/D (Pensions/Services) dated 30.10.1987, thus the said amendment becoming made effective from 01.01.1986. Moreover, thereins an amendment also occurs qua a reservist who has completed 15 years of qualifying service rather combinedly in colour and in reserve, thus may be granted a reservist rdpension equal to 2/3 of the lowest pension admissible to a Sepoy but in no case less than Rs.375/- p.m., on his transfer to the pension establishment. The rate of Rs.375/- set as minimum pension has been revised from time to time with apposite recommendation(s) of every Pay Commission and now stands revised to Rs. 9000/- as minimum pay thas per 7 Central Pay Commission (CPC). The said regulation No. 155 (revised) of Pension Regulation for Army, 1961 is extracted hereinafter. "155. An OR reservist who is not in receipt of a service pension may be granted, on completion of the prescribed combined colour and reserve qualifying service, of not less than 15 years, a reservist pension rdequal to 2/3 of the lowest pension admissible to a sepoy, but in no case less than Rs. 375/- p.m. on his transfer to pension establishment either on completion of his term of engagement or prematurely, irrespective of the period of colour service."

¶11However, prior to the making of the said amendment, the unamended provisions, as carried in Para 155 of Pension Regulation of Army, 1961 become extracted hereinafter. "155. (a) A reservist who is not in receipt of a service pension may be granted on completion of the prescribed combined colour and reserve qualifying service, a reservist pension or gratuity in lieu at the appropriate rate indicated in regulation 156.

(b) A reservist who is not in receipt of service pension and whose period of engagement was more than 15 years but whose qualifying service is less than the period of engagement but not less than 15 years may, on completion KAVNEET SINGH of the period of engagement or on earlier discharge for any cause other than at his own request be granted a reservist pension at Rs. 10 p. m. or a gratuity of Rs. 750 in lieu.

(c) Where a reservist elects to receive a gratuity in lieu of pension under the above clauses, its amount shall, in no case, be less than the service gratuity that would have accrued him under regulation 140 based on the qualifying colour service, had he been discharged from the colours. Note-The option to draw a gratuity in lieu of pension shall be exercised on discharge from the reserve and once exercised shall be final. No pension/gratuity shall be paid until the option has been exercised."

¶12Though, the learned counsel for the petitioners-Union of India, submits that since the above mentioned policy/amendment/notification dated 30.10.1987, has been made effective w.e.f. 01.01.1986, thereupon, the functionality of the said amendment, is thus effective only prospectively. Consequently, he submits that since theretos no effective retrospective functionality, can be assigned to the respondents, who evidently retired from military service, while rendering both the apposite qualifiable colour service and also subsequently rendering reservist service, rather before the coming into force of the said policy/amendment/notification dated

30.10.1987. Resultantly, it is argued that with the said policy/amendment, thus becoming made effective from 01.01.1986, and, that too prospectively, therebys the respondents claim (applicants in the O.A.) rather was required to be negated, whereas, it has been untenably upheld by the learned Armed Forces Tribunal concerned.

¶13Moreover, it has also been vociferously argued before this Court, that any revisions as made theretos in terms of the recommendations in the said regard becoming made by the Central pay commission, but does not override the principle of prospectivity, as stems from the policy/amendment (supra), thus becoming made effective from 01.01.1986. As such, it is argued that espoused prospectivity has to be assigned to the subsequent thereto revisions qua the reservist pension, as made under the recommendation(s), of the Central pay commission.

¶14The learned counsel for the petitioners have also vehemently argued before this Court that, if any retrospectivity is assigned to the policy/amendment/notification dated 30.10.1987, and, also to the subsequent theretos made revisions vis-a-vis the reservist pension, thus on anvil of recommendations becoming made by the Central pay commission, therebys, breach would become caused to the principle/policy of One Rank One Pension, which has come into force from 01.07.2014. Reasons for rejecting the submissions made by the learned counsel for the petitioners-Union of India.

¶15However, this Court disagrees with the submission (supra). The prime reason for dis-agreeing with the counsel for the petitioners is premised on the score, that the said submissions hold their genesis from a complete mis-understanding vis-a-vis the concept (supra) of reservist pension. The said concept has been extensively dealt with by the Hon'ble Apex Court in case titled as 'T.S. Das and Others Vs. Union of India and Another' reported in (2017) 4 SCC 218. The relevant paragraph thereof is carried in paragraph No. 25, para whereof becomes

¶25In absence of an express order of the Competent Authority to take the applicants on the Fleet Reserve Service, the moot question is: whether the applicants can be treated as deemed to be in the Fleet Reserve Service on account of the stipulation in the appointment letter - that on completion of 10 years of Naval Service as a Sailor, they may have to remain on Fleet Reserve Service for another 10 years. That condition in the appointment letter cannot be read in isolation. The governing working conditions of Sailors must be traced to the provisions in the Act of 1957 or the Regulations framed thereunder concerning service conditions. From the provisions in the Act of 1957, there is nothing to indicate that the Sailor after appointment or enrolment is "automatically" entitled to continue in Fleet Reserve Service after completion of initial active service period of 10 years. The provisions, however, indicate that on completion of initial active service of 10 years or enhanced period as per the amended provisions is entitled to take discharge in terms of Section 16 of the Act. The applicants assert that none of the applicants opted for discharge. That, however, does not mean that they would or in fact have continued to be on the Fleet Reserve Service after expiration of the term of active service as a Sailor. There ought to have been an express order issued by the competent Authority to draft the concerned applicant in the Fleet Reserve Service. In absence of such an order, on completion of the term of service of engagement, the concerned sailor would stand discharged. Concededly, retention on the Fleet Reserve Service is the prerogative of the employer, to be exercised on case to case basis. In the present case, however, on account of a policy decision, the Fleet Reserve Service was discontinued in terms of notification dated 3rd July, 1976.

¶16Though thereins it has been stated that the retentions of the defence personnel, on the fleet reserve service rather is the prerogative of the employer and is to be exercised explicitly, thus on a case to case basis. However, since the present petitioners do not wrangle over the fact, that the respondents concerned became well enlisted in the relevant fleet reserve service, thereupons, they were, but in terms of the then regulations (supra), thus entitled to both the admissible pensions relating to the rendition(s) of the apposite qualifying term of colour service besides qua the qualifying term of reservist service. Therefore, the said omission, if any yet does not at all empower the counsel for the petitioners to say that the enlistment(s) of the respondents herein in the fleet reserve service rather was suffering from any transgression being made to the then relevant applicable rules qua the respondents.

¶17Be that as it may, therebys there is but a concession on the part of the present petitioners that the respondents concerned, became entitled to the element of pension embedded, upon, the respondents rendering the qualifying period of pensionable colour service besides therebys they also acquiesce to the further fact that the respondents but were also entitled to become valid recipients to the reservist pension, thus reiteratedly given theirs evidently rendering the qualifying period of pensionable service also appertaining to the latter category.

¶18Nonetheless, the dispute which comes to the fore rather becomes squarely quartered vis-a-vis the respective prospective and/or the retrospective applicability vis-a-vis the respondents, of the above policy/amendment/notification dated 30.10.1987.

¶19The answer to the above becomes readily provided by the hereinafter extracted underlined relevant portion, as occurs in paragraph No. 25 of the verdict rendered (supra) by the Apex Court. " In the present case, however, on account of a policy decision, the Fleet Reserve Service was discontinued in terms of notification dated 3rd July, 1976."

¶20An insightful contemplated reading thereof, but makes clear underlinings that since the fleet reserved service was discontinued in terms of notification dated 03.07.1976, notification whereof also becomes reproduced therein, reproduction whereof, also becomes extracted hereinafter. The said notification reads thus: "No.AD/5374/2/76/2214/S/D(N.II), Government of India, Ministry of Defence, New Delhi, the 3rd July, 1976. To, The chief of the Naval Staff (with 100 spare copies) Sub.:- CONDITIONS OF SERVICE OF SAILORS. Sir, I am directed to state that the President is pleased to approve the following modifications in the conditions of Service of sailors:- a) Initial Period of Engagement:- Be enrolled for 15 years. b) Educational Qualification at Entry:- xxxx c) Ages of Entry:- xxxx d) Compulsory Age of Retirement:- xxxx e) Time Scale Promotion to Leading Rank:- xxxx f) Transfer to Current Fleet Reserve:- Transfer of sailors into the Fleet Reserve to be discontinued. The Existing Fleet Reservists will not be required to undergo refresher training but will be paid the retaining free till they are wasted out. g) Recall to Active Service:- xxxx h) xxxx xxxx xxxx Yours faithfully, Sd/- (P.S. Ahluwalia) Under Secretary to the Govt. of India"

¶21As a sequel thereof, with the happening of the disbandment(s) of the fleet reserve service rather in the year

03.07.1976. Resultantly, the consequential effect thereof, but naturally is that, with there being no fleet reserved service subsequent to

03.07.1976. As but a natural corollary thereto the policy/notification (supra) and consequent thereto revisions, as became made through recommendations becoming made by the Central pay commission, thus were pointedly applicable to the respondents concerned, who retired rdprior to the 3 July, 1976, especially when in the era (supra), rather the apposite category of fleet reserve service, became discontinued or became disbanded, through the making of the above extracted notification (supra), as carried in paragraph No. 25 of the verdict recorded by the Apex Court.

¶22In other words, the root of the above conclusion is entrenched in the happenings of disbandment (supra), of the fleet service category, whereupons, the policy/amendment/notification dated

30.10.1987, thus is to be declared to be holding retrospective effect rather than any prospective effect.

¶23Now further bearing in mind the common sense principle that with the absence of any fleet reserve service, post its evident dis-continuance occurring since 03.07.1976. Moreover, with subsequent thereto, rather no defence personnel adorning the said fleet reserve service, therebys the evident lack of apposite enlistment(s), thus post 1976 of any personnel of the naval, military or air force, rather in the fleet reserve service. Resultantly, when only upon the occurrence of their said enlistments, thus, as the members of the reservist fleet, but pointedly post 1976, rather it could become evidently concluded, that qua only such enlisted members, thus the policy decision/amendment (supra) and consequent thereto revisions hence were applicable, rather

¶24Contrarily when there is absence of apposite enlistments post 1976. Moreover, when therebys, alone prospectivity was assignable vis-a-vis the policy decision/amendment (supra) and consequent thereto revisions. Resultantly, therebys the supra, are required to be construed to be applicable only to those reserve fleet service personnel, who respectively performed service in the army, navy and in the military. Since the apposite performance in the reserve fleet service category, thus, becomes the relevant anchor sheet or the underpinnings rather for declaring the apposite policy/amendment to be retrospective or prospective. As such, since the present respondents did perform service in the reserved fleet category thus prior to, the disbandment of reserve fleet service, whereafters, there was no performance in the disbanded fleet reserve service by any member of the defence forces.

¶25Consequently, the salutary object (supra), thus underpinning the formulation of the policy/amendment/notification dated 30.10.1987, brings home a firm conclusion, that as a matter of fact, the said policy/amendment is applicable to only those who had rendered service in the reserve fleet category, as are, the present respondents.

¶26Furthermore reiteratedly, it is not applicable to those who were never in the reserve fleet service after its disbandment taking place nor therebys it can said to be applicable prospectively. Contrarily, reiteratedly it is construed to be holding only retrospective effect. If any, other conclusion is drawn, thereupon there would be underminings of the holistic objective (supra) etched in the formulation of the policy/notification (supra), inasmuch as, despite its preparation becoming generated from endowments of the benefits spelt thereunders only to those who were appositely enlisted, and not to those who post the happenings of disbandment of the reserved fleet, rather never served in the fleet reserve category, yet thereby irrational prospectivity becoming assigned to the policy decision/amendment (supra).

¶27Secondarily, since the policy of One Rank One Pension

(OROP), is a decision post 1976, thereupon, it does not have any affect upon the reservist pension being drawn by the respondents. As such, the principle of One Rank One Pension, whereby there may be dis-allowings qua the benefits of the policy decision (supra), thus is not applicable to the present respondents, as therebys, it would be antithetical both to the policy decision (supra) besides it would cause financial prejudice to the respondents, who prior to the coming into force of the policy of One Rank One Pension, did become valid recipients of the apposite benefits of both, pensionable service rendered in colour and to the pensionable service rendered in the reservist force.

¶28The above questions of law are accordingly answered against the present petitioners and in favour of the respondents. Final Order of this Court.

¶29In aftermath, this Court finds no merit in the writ petition(s) (supra), and, with the above observations, the same are

¶30The impugned order(s), as passed by the learned Armed Forces Tribunal concerned, are maintained and affirmed. Since the main case(s) itself have been decided, therefore, all the pending application(s), if any, also stand(s) disposed of.

¶31A photocopy of this order be placed on the files of other connected cases. (SURESHWAR THAKUR) JUDGE (SUDEEPTI SHARMA)

27.09.2024 JUDGE kavneet singh Whether speaking/reasoned : Yes/No

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Reserved on: 23.09.2024 Pronounced on: 27.09.2024 1. CWP-17046-2024 UNION OF INDIA AND OTHERS .....Petitioners Versus DARSHAN SINGH BAL AND ORS. ....Respondents 2. CWP-14652-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE .....Petitioner Vs NO 2450895 A EX SEP RESERVIST LAL SINGH ....Respondent 3. CWP-14654-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO13801181 EX SEP RESERVIST CHAJJU RAM AND ANOTHER .... Respondents 4. CWP-14659-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO 2851610 EX RFN MAHABIR SINGH AND ANOTHER .... Respondents 5. CWP-14660-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO 3960016 EX SEP JOBAN SUKH AND ANOTHER ... Respondents 6. CWP-14661-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO 1031456 EX SWR SUBH RAM AND ANOTHER .... Respondents 7. CWP-14664-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO1147875 M EX GNR RESERVIST MEHANGA SINGH AND ANOTHER .... Respondents 8. CWP-14665-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO 2854686 EX RFN JAI CHAND AND ANOTHER .... Respondents 9. CWP-14667-2024 UNION OF INDIA , THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO2453408A EX SEP GURMUKH SINGH AND ANOTHER .... Respondents 10. CWP-14668-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO 3350457 SEP PURAN SINGH AND OTHERS .... Respondents 11. CWP-14669-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners NO4154749 EX SEP RES JAGDISH AND ANOTHER .... Respondents 12. CWP-14670-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE .....Petitioners Vs NO 3150695 EX SEP PIYARA LAL .... Respondent 13. CWP-14671-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO3143873 W EX SEP RESERVIST MOHAR SINGH AND ANOTHER .... Respondents 14. CWP-14672-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO 4437833 N EX SEP KULDIP SINGH AND ANOTHER .... Respondents 15. CWP-14674-2024 UNION OF INDIA, THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS .....Petitioners Vs NO2851779 EX RFN ISHWAR SINGH AND ANOTHER .... Respondents 16. CWP-17050-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs BALBIR SINGH AND ANOTHER .... Respondents 17. CWP-17055-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs SURJIT SINGH AND ANOTHER .... Respondents 18. CWP-17194-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs SATYA BIR AND ANOTHER .... Respondents 19. CWP-17198-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs RAJINDER KUMARI AND ANOTHER .... Respondents 20. CWP-17202-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs DHARAM SINGH AND ANOTHER .... Respondents 21. CWP-17203-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs DHARAM CHAND AND ANOTHER .... Respondents 22. CWP-17204-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs PRITAM SINGH AND ANOTHER .... Respondents 23. CWP-17206-2024 UNION OF INDIA AND OTHERS .....Petitioners RAM SINGH AND ANOTHER .... Respondents 24. CWP-17209-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs BHARAT SINGH AND ANOTHER .... Respondents 25. CWP-17220-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs BHIM SINGH AND ANOTHER .... Respondents 26. CWP-17221-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs KAPUR SINGH AND ANOTHER .... Respondents 27. CWP-17222-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs JAGMAL SINGH AND ANOTHER .... Respondents 28. CWP-17225-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs LAKHI RAM AND ANOTHER .... Respondents 29. CWP-18340-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs 30. CWP-18341-2024 UNION OF INDIA AND OTHERS .....Petitioners Vs EX S