UNION OF INDIA AND ANOTHER versus ABHIRAM VERMA on 30 September 2021

UNION OF INDIA AND ANOTHER

v.

ABHIRAM VERMA

(Civil Appeal No. 1027 of 2020)

SEPTEMBER 30, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Service Law – Pension Regulations for the Army, 1961 – Regn.15 – Pension Regulations for the Army, 2008 – The respondent wascommissioned in the Indian Army (Armed Medical Corps) as a ShortService Commission Officer – In the year 1998, he was grantedpermanent commission – By letter/application dated 15.04.2000,the respondent applied for resignation on the ground of lack ofpromotional prospects – His actual date of superannuation was31.05.2014 – The application for resignation came to be rejectedby the DG, Medical Services (Army) – Writ petition by the respondent– The said writ petition came to be allowed by the High Court andthe Army was directed to consider the case of resignation afresh –Thereafter the respondent’s resignation came to be accepted on31.01.2007, however, it was stated that he was not entitled to anyterminal benefits except for encashment of leave (the denial of theterminal benefits was the subject matter before the Armed ForcesTribunal) – Tribunal directed the appellants to process therespondent’s claim for terminal/pensionary benefits takingqualifying service as 15 years as a “late entrant” u/regn. 15 of thePension Regulations, 1961 – Aggrieved, the Union of Indiapreferred appeal before the Supreme Court – Whether in the factsand circumstances of the case, the respondent is entitled to the benefitof regn. 15 of Pension Regulations, 1961 as a “late entrant” andtherefore entitled to the pensionary benefits? – It is the case onbehalf of the respondent that his application tendered on 15.04.2000was not an application for “resignation”, but it was a request for“voluntary retirement” – Held: The qualifying service for thepurpose of “voluntary retirement” is minimum 10 years’ service –Admittedly, the respondent did not complete the 10 years of serviceon 15.04.2000 when he tendered his resignation and therefore assuch was not eligible to apply for “voluntary retirement” – Therefore,he could not have applied for ‘voluntary retirement’ – The averments

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Ain the writ petition all throughout the word used by the respondentis “resignation” – It is only as an afterthought and to get the benefitof “late entrant” u/regn. 15, the respondent is contending that hisapplication was ‘voluntary retirement’ – Thus, on 15.04.2000 therespondent tendered “resignation” for lack of promotional avenues/aspects and it was not a case of “voluntary retirement” –BAccordingly, the respondent’s claim for terminal/pensionary benefitstaking his qualifying service as 15 years as regards “late entrant”in terms of regn. 15 of the Pension Regulations, 1961 is quashedand set aside.

Words and Phrases – Distinction between the “resignation”Cand “voluntary retirement” – discussed.

Allowing the appeal, the Court

HELD: 1. The question posed for the consideration of thisCourt is, whether in the facts and circumstances of the case, theDrespondent 12 is entitled to the benefit of Regulation 15 of PensionRegulations, 1961 as a “late entrant” and therefore entitled tothe pensionary benefits? The incidental question which is posedfor the consideration of this Court is, whether the resignationtendered by the respondent on 15.04.2000 can be said to be a“resignation” or “voluntary retirement”. [Para 5][66-A-C]E

Conclusion

1.1 To bring the case within Regulation 15 and get thebenefit as a “late entrant”, it is the case on behalf of the respondentthat his application tendered on 15.04.2000 was not an applicationfor “resignation”, but it was a request for “voluntary retirement”.The submission on behalf of the respondent that what wasFtendered on 15.04.2000 was not an application for “resignation”but it was an application for “voluntary retirement” has nosubstance and cannot be accepted for the following reasons: i)that the qualifying service for the purpose of “voluntaryretirement” is minimum 10 years’ service. On 15.04.2000, theGrespondent did not complete 10 years of service and thereforewas not eligible for applying for “voluntary retirement” andtherefore on 15.04.2000 otherwise also he could not have appliedfor “voluntary retirement”; ii) in the application dated 15.04.2000,the cause shown was lack of promotional aspects. Even the High Court of Jammu & Kashmir in its judgment and order dated11.10.2006 which was filed by the respondent specifically notedthe submission on behalf of the respondent that the “petitionerhaving joined the Commission at a later stage has no chance ofpromotion to the first selection, i.e., to the rank of Colonel in theArmy Medical Corps. Petitioner moved an application dated 15thApril, 2000 before the respondents’ seeking “resignation” fromthe army on the ground of non-availability of promotionalprospects and ineligibility to acquire technical skill”. Even theHigh Court in its judgment and order dated 11.10.2006 treatedand considered the application submitted by the respondent dated15.04.2000 as application for “resignation” and proceeded onthat footing. Even the subsequent petition filed before the HighCourt being SWP 454/2008, the respondent never contended thatit was an application for “voluntary retirement”. If the avermentsin the writ petition are seen all throughout the word used by therespondent is “resignation”. Therefore, only as an afterthoughtand to get the benefit of “late entrant” under Regulation 15, nowit is the case on behalf of the respondent that what was meant byhim at that time was praying for “voluntary retirement” and itwas not an application for “resignation”; iii) even as per theapplicable rules for premature retirement/resignation of AMCOfficers dated 26.3.1998, a request of an officer to seek prematureretirement/resignation on the ground of lack of career prospectsshall not be accepted and even if the officers are permitted toresign, they are not entitled to terminal/pensionary benefits; and(iv) even in the written submissions dated 15.09.2021 filed onbehalf of the respondent, it can be seen that the respondent hasaccepted that on 15.04.2000 he was not eligible for “voluntaryretirement” and therefore he used the word “resignation” to getout of the technical reason. Therefore, it can be said that he hasadmitted that on 15.04.2000 he did not fulfil the criteria for“voluntary retirement” as on that day he had not completed 10years of service. Therefore, from the aforesaid facts, the onlyconclusion would be that on 15.04.2000 the respondent tendered“resignation” for lack of promotional avenues/aspects and it wasnot a case of “voluntary retirement”. [Para 6][67-D-H; 68-A-G]

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A3. As per Regulation 15, a “late entrant” is an officer whois retired on reaching the prescribed age limit for compulsoryretirement with at least 15 years commissioned service (actual).As the respondent did not retire on reaching the prescribed agelimit for compulsory retirement, the respondent cannot be saidto be a “late entrant”. The purpose and object seems to be toBgive 5 years relaxation/grace for qualifying service for earning aretiring pension. As per Regulation 25(a), the minimum periodof qualifying service actually rendered and required for earning aretiring pension shall be 20 years. However, if an officer is notable to complete the minimum period of qualifying service, i.e.,C20 years and before completing 20 years of service he is attainingthe age of superannuation and is retired on reaching theprescribed age limit of compulsory retirement, but has completed15 years of qualifying service, he is considered as a “late entrant”and is entitled to pensionary benefits by getting 5 years graceperiod. Therefore, to that extent the same can be said to be aDrelaxation/grace of 5 years for getting the benefit of pensionablebenefits provided the case falls within Regulation 15 and an officeris a “late entrant”. As observed hereinabove, the respondentcannot be said to be a “late entrant” and therefore not entitled tothe benefit of Regulation 15 and therefore not entitled to theEpensionary benefits. [Para 11][71-C-G]

4. The impugned judgment and order passed by the learnedArmed Forces Tribunal dated 9.2.2018 in T.A. No. 25/2017quashing and setting aside para 2 of letter dated 31.01.2007 tothe extent it denied terminal/pensionary benefits to theFrespondent and directing the appellants to process therespondent’s claim for terminal/pensionary benefits taking hisqualifying service as 15 years as regards “late entrant” in termsof Regulation 15 of the Pension Regulations is hereby quashedand set aside and it is held that the respondent is not entitled tothe terminal/pensionary benefits as a “late entrant” in terms ofGRegulation 15 of the Pension Regulations. [Para 12][71-G-H; 72-A-B]

Senior Divisional Manager, LIC v. Shree Lal Meena(2019) 4 SCC 479 : [2019] 5 SCR 391 – relied on.

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Union of India v. Lt. Col. P.S. Bhargava, (1997) 2 SCC28 : [1997] 1 SCR 130; D.S. Nakara v. Union of India(1983) 1 SCC 305 : [1983] 2 SCR 165; K.J.S Buttar v.Union of India, (2011) 11 SCC 429 : [2011] 4 SCR136 – held inapplicable.

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BSES Yamuna Power Limited v. Ghanshyam ChandSharma (2020) 3 SCC 346 : [2019] 14 SCR 546 –referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No.1027 of2020.

From the Judgment and Order dated 09.02.2018 in TA No.25 of2017 and order dated 25.03.2019 in M.A. No.114 of 2018 of the ArmedForces Tribunal, Regional Bench, Srinagar at Jammu.

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Ms. Madhvi Divan, ASG, Rajan Kr. Chaurasia, Ayush Puri, Ms.Aakansha Kaul, Ms. Preeti Rani, Arvind Kumar Sharma, Advs. for theAppellants.

Vikas Singh, Sr. Adv., Indra Sen Singh, Ms. Kirtika Singh, SarveshSingh, Advs. for the Respondent.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 9.2.2018 passed by the Learned Armed Forces Tribunal,Regional Bench, Srinagar at Jammu (hereinafter referred to as the‘Tribunal’) in T.A. No. 25/2017(SWP No. 454 of 2008), by which thelearned Tribunal has disposed of the said transfer application by settingaside para 2 of letter dated 31.01.2007 to the extent it denied terminal/pensionary benefits to the respondent herein – original applicant G

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A(hereinafter referred to as the ‘respondent’) and directed the appellants– original respondents to process his claim for terminal/pensionarybenefits taking his qualifying service as 15 years as regards “late entrant”in terms of Regulation 15 of the Pension Regulations and to release thesame together with arrears, the department – Union of India and anotherhave preferred the present statutory appeal.B

2. The facts leading to the present appeal in nutshell are as under:

That the respondent herein commissioned in the Indian Army(Armed Medical Corps) as a Short Service Commission Officer on27.03.1992 for a period of five years at the age of 33 years and 10Cmonths. He voluntarily applied for Permanent Commission on 7.8.1997.He was granted Permanent Commission at the age of 39 years and 2months on 28.01.1998. Respondent became a Graded Specialist on1.6.1994 and thereafter he became a Classified Specialist on 1.6.1999.By letter/application dated 15.04.2000, the respondent applied forresignation on the ground of lack of promotional prospects. At this stage,Dit is required to be noted that his actual date of superannuation at 56years of age was 31.05.2014. The application for resignation came to berejected by the DG, Medical Services (Army) vide communication dated4.9.2000. That thereafter the respondent filed a statutory complaint on24.03.2001 against the rejection of his resignation, the same was rejectedEby the Under Secretary, Government of India on 14.03.2002. Thatthereafter the respondent filed a writ petition before the High Court ofJammu & Kashmir being SWP No. 1573/2001 against the rejection ofhis complaint by the Under Secretary, Government of India. The saidwrit petition came to be allowed by the High Court vide order dated11.10.2006 quashing the order of the Under Secretary which rejectedFthe respondent’s resignation and directed the Army to consider the caseof resignation afresh. That thereafter the respondent’s resignation cameto be accepted vide order/communication dated 31.01.2007, however, itwas stated that he was not entitled to any terminal benefits except forencashment of leave (the denial of the terminal benefits was the subjectGmatter before the Armed Forces Tribunal). The name of the respondentwas struck off from the Army Medical Corps vide movement orderdated 22.04.2007, with effect from 23.04.2007.

2.1 That thereafter the respondent preferred the writ petition beforethe High Court of Jammu & Kashmir being SWP No. 454/2008 forHgrant of gratuity and pension, which subsequently came to be transferred to the Armed Forces Tribunal as TA No. 25/2017. That by the impugnedjudgment and order dated 9.2.2018, the learned Tribunal has disposed ofthe said transfer application directing the appellants to process therespondent’s claim for terminal/pensionary benefits taking qualifyingservice as 15 years as a “late entrant” under Regulation 15 of the PensionRegulations. That leave to appeal has also been dismissed by the learnedTribunal vide order dated 25.03.2019.

2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the learned Tribunal directing the appellants to processthe respondent’s claim for terminal/pensionary benefits taking qualifyingservice as 15 years as a “late entrant” under Regulation 15 of the PensionRegulation, the Union of India and another have preferred the presentappeal.

3. Ms. Madhavi Divan, learned Additional Solicitor General ofIndia has appeared on behalf of the appellants and Shri Vikas Singh,learned Senior Advocate has appeared on behalf of the respondent.

3.1 Ms. Madhavi Divan, learned ASG has vehemently submittedthat in the facts and circumstances of the case, the learned Tribunal hasmaterially erred in directing the appellants to consider the respondent’sclaim for terminal/pensionary benefits taking qualifying service as 15years as a “late entrant” under Regulation 15 of the Pension Regulations.

3.2 It is vehemently submitted that as such the learned Tribunalhas wrongly observed that the respondent submitted the request for“voluntary retirement”. It is submitted that as such it was not a case of“voluntary retirement”, but it was a case of “resignation” by therespondent on the ground of lack of promotional prospects.

3.3 It is submitted that even it was not the case on behalf of therespondent before the learned Tribunal that he submitted the applicationfor “voluntary retirement”. Reliance is placed upon some of the avermentsin the petition before the High Court/learned Tribunal in which he hascategorically stated that he tendered the “resignation” for want ofpromotional avenues.

3.4 It is submitted that since it was the case of “voluntaryresignation from service”, the respondent shall not be entitled to thebenefit as “late entrant” under Regulation 15 of the Pension Regulations.

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A3.5 It is submitted that even otherwise at the relevant time therespondent did not complete the qualifying service for the purpose of“voluntary retirement”. It is submitted that thus the date on which therespondent submitted the application for resignation on 15.04.2000, hewas not even eligible for premature retirement. It is submitted thattherefore it was a case of “voluntary resignation” and not “voluntaryBretirement”.

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3.6 It is submitted that admittedly when the respondent tenderedhis resignation on 15.04.2000, he had only rendered service for 15 yearsand 27 days. It is submitted that had the respondent not voluntarily resignedand retired at the age of superannuation, (i.e, 56 years for a Lt. Col.) onC31.05.2014, he would have rendered 22 years 2 months and 2 days ofservice. It is submitted that therefore when the respondent tendered theresignation, he did not complete the minimum qualifying service as perRegulation 25(a), i.e., 20 years. It is submitted that therefore therespondent took the shelter of Regulation 15 as a “late entrant”. It isDsubmitted that the minimum qualifying service for being eligible for retiringpension is 20 years under Regulation 25(a). It is submitted that it is onlyin the case of compulsory retirement on attaining the age ofsuperannuation where it is impossible for the officer to complete 20years due to the prescribed age limit that a concession of 5 years isgranted to such “late entrants” that can earn a retiring person even afterEcompletion of minimum 15 years of service.

3.7 It is submitted that therefore as it was a case of “voluntaryresignation” and not a case of “voluntary retirement/retirement”. Therespondent cannot be said to be “late entrant” and therefore shall not beentitled to the benefit under Regulation 15 of the Pension Regulations.

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3.8 It is further submitted that in the present case the learnedArmed Forces Tribunal has erred in treating the present case of “voluntaryresignation” as one of “voluntary retirement”. It is submitted that thereis a vast difference between the “voluntary resignation” and “voluntaryretirement”. Reliance is placed on the decision of this Court in the caseGof BSES Yamuna Power Limited v. Ghanshyam Chand Sharma.Reported in (2020) 3 SCC 346 (paragraphs 13 & 14).

3.9 It is further submitted by Ms. Madhavi Divan, learned ASGappearing on behalf of the appellants that assuming for the time beingthat the respondent applied for “voluntary retirement”, in that case also,H

as on 15.04.2000 even he did not complete the qualifying service for thepurpose of premature retirement.

3.10 Now so far as the case on behalf of the respondent, so statedin the counter affidavit on the reliance placed upon Regulation 19(h) and19(j) of the Pension Regulations of the Army, 2008 to contend that theperiod of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of aPost-Graduate Qualification shall also count towards reckonablepensionable service is concerned, it is submitted that the said Regulations,2008 shall not be applicable as the respondent has resigned in the year2000 and even his name was struck off from the Army Medical Corps inthe year 2007 and therefore Pension Regulations 1961 shall be applicable.It is submitted that, as such, such a plea was not taken before filing ofthe counter affidavit before this Court and rightly not taken as the PensionRegulations 2008 shall not be applicable.

3.11 It is further submitted that even otherwise considering theapplicable rules, namely, Premature Retirement/Resignation from Serviceof AMC Officers dated 26.03.1998, if a person has resigned on theground of lack of career/promotional prospects the same cannot be areason for acceptance of premature retirement/resignation and theofficers who are permitted to resign are not entitled to terminal benefits,however, they are eligible to avail encashment of accumulated annualleave. It is submitted that therefore also not only the respondent wasineligible to take the benefit of Pension Regulation 15, but also wasineligible for any terminal benefits as per the aforesaid Regulations/Rules.

3.12 It is further submitted by Ms. Madhavi Divan, learned ASGthat even the observations made by the learned Tribunal that the authoritytook seven years to decide on the application submitted by the respondentis factually incorrect. It is submitted that the respondent tendered theresignation on 15.04.2000 and the same came to be rejected by the DG,Medical Services (Army) on 4.9.2000 and even the respondent filed astatutory complaint against the rejection of the resignation on 24.03.2001.It is submitted that therefore, as such, there was no delay at all on thepart of the authority in deciding the application for resignation.

3.13. Making the above submissions and relying upon the aforesaiddecision, it is prayed to allow the present appeal.

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A4. The present appeal is opposed by Shri Vikas Singh, learnedSenior Counsel appearing on behalf of the respondent.

4.1 It is vehemently submitted that in the facts and circumstancesof the case, as rightly observed by the learned Tribunal, the respondentshall be entitled to the benefit as “late entrant” under Regulation 15 asBwell as the benefit of Regulation 19(h) of Pension Regulations, 2008. Itis submitted that, as such, Regulation 19 of the Pension Regulations,2008 is pari materia to Pension Regulations, 1961.

4.2 It is submitted that in accordance with Pension Regulations,2008, respondent’s pre-commission service as Research Scholar withCGandhi Medical College, Bhopal (a Government College) and as a MedicalOfficer with BHEL, totalling to 6 years 4 months and 6 days should alsobe counted towards his total qualifying pensionable service. It is submittedthat thus the respondent’s total qualifying pensionable service comes to22 years 11 months and 2 days (15 years 27 days of Army Service + 6years 4 months and 6 days of pre-commission service + 1 and half yearsDof ante-date seniority).

4.3 It is further submitted that even otherwise the learned Tribunaltreated the respondent’s case as a “late entrant” in the peculiar factsand circumstances as mentioned in para 4 of the impugned judgmentwhich read as under:E

i) As admitted by the appellants, respondent was granted PC at alate age of 39 years 2 months, in the organizational interest, to meet theacute shortage of medical-specialist in the Army prevailing at that pointof time, thereby relaxing the maximum age limit 32 years; Fii) Over a period of time, the medical specialists became surplusin Army thereby causing acute stagnation in the promotions/careerprogression and lack of opportunity to do in-house specialist courses,which prompted the respondent to seek pre-mature release from theArmy so as to establish his career elsewhere at that young age;

iii) the respondent was 42 years of age when he had applied forGthe pre-mature severance on 15.04.2000, which was initially rejected bythe Appellants on the false ground that there was shortage of medicalspecialists in the Army; and

iv) the appellants inordinately delayed in accepting respondent’srequest which happened only with the kind indulgence of the J&K HighH

Court and accordingly by the time respondent was released from theArmy, he had already crossed the age of 49 years of age which was toolate to establish his practice or start a new career.

4.4 It is further submitted by Shri Vikas Singh, learned SeniorCounsel that, as such, Pension Regulations, 2008 shall be applicable. Itis submitted that as held by this Court in the cases of D.S. Nakara v.Union of India (1983) 1 SCC 305 and K.J.S Buttar v. Union ofIndia, (2011) 11 SCC 429 for the purpose of granting benefit under thenew Pension Rules, the date of retirement is irrelevant, though the revisedscheme would be operative from the date mentioned in the new PensionRules but would bring its umbrella even to the pensioners who retiredafter the specified date w.e.f. and their pension would be payableaccordingly with effect from the said specific date.

4.5 Relying upon the decision of this Court in the case of Unionof India v. Lt. Col. P.S. Bhargava, (1997) 2 SCC 28 (Paras 7, 18 to20), it is submitted that as held by this Court in the context of Army,there is no difference between “resignation” and “voluntary retirement”because in either case prior permission of the government would berequired for an Army Personnel to leave the service. It is submitted thatthis Court also held that the policy letter issued by the Army Headquarter,thereby denying pension and other terminal benefits to the persons whoresigned to the service cannot be given effect to being contrary to thePension Regulations which does not have such stipulation.

4.6 It is submitted that even otherwise the respondent had submittedhis application on 15.04.2000 on a printed form prescribed by theappellants which has both options of “resignation” and “prematureretirement” printed on it. It is submitted that as such the respondent’sreal intention was to seek premature retirement but he was told thatsince he had less than 10 years of service at that point of time, as perpara 7 & 13 of the Army HQ Policy dated 26.03.1998, the prematurerelease before 10 years of service has to be termed as “resignation” andnot as “premature retirement”. It is submitted therefore his applicationwas treated as one of “resignation” and not as “premature retirement”due to the aforesaid technical reason, even though the respondent hasno intention to resign and thereby losing his service benefits, if any.

4.7 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeal.

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A5. We have heard the learned Senior Counsel for the respectiveparties at length.

The short question posed for the consideration of this Court is,whether in the facts and circumstances of the case, the respondent isentitled to the benefit of Regulation 15 of Pension Regulations, 1961 asBa “late entrant” and therefore entitled to the pensionary benefits?

The incidental question which is posed for the consideration ofthis Court is, whether the resignation tendered by the respondent on15.04.2000 can be said to be a “resignation” or “voluntary retirement”.

5.1 While considering the aforesaid issues, even at the cost ofCrepetition, few dates and events are required to be considered, whichare as under:

i) the respondent applied for resignation (now according to therespondent it was a request for voluntary retirement) on the groundof lack of promotional aspects on 15.04.2000; D

ii) the application for resignation came to be rejected by the DG,Medical Services (Army) on 4.9.2000;

iii) the respondent filed a statutory complaint against the rejectionof his resignation on 24.03.2001; Eiv) the respondent’s statutory complaint came to be rejected bythe Under Secretary, Government of India on 14.03.2002;

v) the High Court of Jammu & Kashmir by judgment and orderdated 11.10.2006 quashed the order of the Under Secretary whorejected the respondent’s resignation and consequently directedFthe department to consider the case of the resignation afresh;

vi) respondent’s resignation came to be accepted in pursuance ofthe High Court’s order vide communication/letter dated 31.01.2007,however, it was stated that the respondent is not entitled to anyterminal benefits except for encashment of leave; G

vii) the name of the respondent came to be struck off from theArmy Medical Corps vide Movement Order w.e.f. 23.4.2007;

viii) as per paras 7 & 13 of the Army HQ Policy dated 26.3.1998,the qualifying service for the purpose of premature retirementwas 10 years of service, otherwise his application has to be termedHas “resignation”;

ix) admittedly the respondent did not complete the ten years ofservice on 15.04.2000 when he tendered his resignation andtherefore as such was not eligible to apply for “voluntaryretirement”;

x) when the respondent tendered application for resignation on15.04.2000, the respondent rendered service for 15 years and 27days only; and

xi) the minimum period of qualifying service actually rendered forearning retiring pension shall be 20 years as per Regulation 25(a),however, if an officer is a “late entrant” who, as such, has renderedservice at least for 15 years and who has retired on reaching theprescribed age limit for compulsory retirement with at least 15years commissioned service (actual) as per regulation 15.

6. To bring the case within Regulation 15 and get the benefit as a“late entrant”, it is the case on behalf of the respondent that his applicationtendered on 15.04.2000 was not an application for “resignation”, but itwas a request for “voluntary retirement”. The submission on behalf ofthe respondent that what was tendered on 15.04.2000 was not anapplication for “resignation” but it was an application for “voluntaryretirement” has no substance and cannot be accepted for the followingreasons:

i) that the qualifying service for the purpose of “voluntaryretirement” is minimum 10 years’ service. On 15.04.2000, therespondent did not complete 10 years of service and thereforewas not eligible for applying for “voluntary retirement” andtherefore on 15.04.2000 otherwise also he could not have appliedfor “voluntary retirement”;

ii) in the application dated 15.04.2000, the cause shown was lackof promotional aspects. Even the High Court of Jammu & Kashmirin its judgment and order dated 11.10.2006 which was filed by therespondent specifically noted the submission on behalf of therespondent that the “petitioner having joined the Commission at alater stage has no chance of promotion to the first selection, i.e.,to the rank of Colonel in the Army Medical Corps. Petitionermoved an application dated 15[th] April, 2000 before the respondents’seeking “resignation” from the army on the ground of non-availability of promotional prospects and ineligibility to acquire A

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Atechnical skill”. Even the High Court in its judgment and orderdated 11.10.2006 treated and considered the application submittedby the respondent dated 15.04.2000 as application for“resignation” and proceeded on that footing. Even the subsequentpetition filed before the High Court being SWP 454/2008, therespondent never contended that it was an application forB“voluntary retirement”. If we see the averments in the writ petitionall throughout the word used by the respondent is “resignation”.Therefore, only as an afterthought and to get the benefit of “lateentrant” under Regulation 15, now it is the case on behalf of therespondent that what was meant by him at that time was prayingCfor “voluntary retirement” and it was not an application for“resignation”; A

iii) even as per the applicable rules for premature retirement/resignation of AMC Officers dated 26.3.1998, a request of anofficer to seek premature retirement/resignation on the ground ofDlack of career prospects shall not be accepted and even if theofficers are permitted to resign, they are not entitled to terminal/pensionary benefits; and iv) even from para 6 of the written submissions dated 15.09.2021filed on behalf of the respondent, it can be seen that the respondentEhas accepted that on 15.04.2000 he was not eligible for “voluntaryretirement” and therefore he used the word “resignation” to getout of the technical reason. Therefore, it can be said that he hasadmitted that on 15.04.2000 he did not fulfil the criteria for“voluntary retirement” as on that day he had not completed 10years of service.F

Therefore, from the aforesaid facts, the only conclusion would bethat on 15.04.2000 the respondent tendered “resignation” for lack ofpromotional avenues/aspects and it was not a case of “voluntaryretirement”.

G7. Even, there is a distinction between the “resignation” and“voluntary retirement”. A person can resign at any time during his service,however, an officer cannot ask for premature/voluntary retirement unlesshe fulfils the eligibility criteria.

8. This Court had an occasion to consider the distinction between“resignation” and “voluntary retirement” in the case of Senior DivisionalH

Manager, LIC v. Shree Lal Meena, reported in (2019) 4 SCC 479,which has been subsequently followed by this Court in the case of BSESYamuna Power Ltd. (supra). In paragraph 22, it is observed and heldas under:

“22. The principles in the context of the controversy before usare well enunciated in the judgment of this Court in RBI v. CecilDennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC461: 2004 SCC (L&S) 737]. On a similar factual matrix, theemployees had resigned sometime in 1988. The RBI PensionRegulations came in operation in 1990. The employees who hadresigned earlier sought applicability of these Pension Regulationsto themselves. The provisions, once again, had a similar clause offorfeiture of service, on resignation or dismissal or termination.The relevant observations are as under: (SCC pp. 467-68, paras10)

“10. In service jurisprudence, the expressions “super-annuation”, “voluntary retirement”, “compulsory retirement”and “resignation” convey different connotations. Voluntaryretirement and resignation involve voluntary acts on the partof the employee to leave service. Though both involve voluntaryacts, they operate differently. One of the basic distinctions isthat in case of resignation it can be tendered at any time, but inthe case of voluntary retirement, it can only be sought for afterrendering prescribed period of qualifying service. Otherfundamental distinction is that in case of the former, normallyretiral benefits are denied but in case of the latter, the same isnot denied. In case of the former, permission or notice is notmandated, while in case of the latter, permission of the employerconcerned is a requisite condition. Though resignation is abilateral concept, and becomes effective on acceptance bythe competent authority, yet the general rule can be displacedby express provisions to the contrary….”

8.1 The law laid down by this Court in the case of Shree LalMeena (supra) has been reiterated by this Court in the subsequentdecision in the case of BSES Yamuna Power Ltd. (supra) and in thesubsequent decision, this Court also considered the observations madein paragraph 26 in Shree Lal Meena (supra) that while pension schemesdo form beneficial legislation in a delegated form, a beneficial construction A

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Acannot run contrary to the express terms of the provisions. It is furtherobserved that the issue cannot be dealt with on a charity principle. Whenthe legislature, in its wisdom, brings forth certain beneficial provisions inthe form of Pension Regulations from a particular date and on particularterms and conditions, aspects which are excluded cannot be included init by implication. Therefore, having tendered the “resignation”, theBrespondent has to suffer the consequences and now cannot be permittedto take ‘U’ turn and say that what the respondent wanted was “prematureretirement” and not “resignation”.

9. Now so far as the reliance placed by the respondent onRegulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008Cto contend that a period of service in a central autonomous body as wellas period of ante-date of commission granted to an officer in respect ofpossession of a Post-Graduate Qualification shall also be counted forthe purpose of pensionable service, the same cannot be accepted, firstlyon the ground that the same was not raised before the High Court/AFT.DEven otherwise also, the Pension Regulations of the Army, 2008 shallnot be applicable to the case of the respondent as the respondent wouldbe governed by the Pension Regulations, 1961, which have no parimateria provisions like Regulation 19(h) and 19(j) of the PensionRegulations of the Army, 2008. The same has no retrospectiveapplicability. As such, the respondent had resigned on 15.04.2000 andEeven his resignation was accepted on 31.01.2007, much prior to thecoming into force of the Pension Regulations of the Army, 2008.

10. Now so far as the reliance placed upon the decisions of thisCourt in the cases of D.S. Nakara (supra) and K.J.S. Buttar (supra)is concerned, the same shall not be applicable to the facts of the case onFhand. Similarly, the decision of this Court in the case of Lt. Col. P.S.Bhargava (supra) shall not be applicable to the facts of the case onhand and/or the same shall not be of any assistance to the respondent.In the case before this Court, it was found that the officer completed therequisite qualifying service which was for the purpose of pensionableGbenefits. However, the same was sought to be denied on the ground thathe voluntarily resigned. In the present case, as observed hereinabove,the minimum qualifying service for the purpose of pensionable benefitsis 20 years as per Regulation 25(a) and if his case is considered as a“late entrant”, then 15 years as per Regulation 15.

11. In light of the above findings, it is required to be consideredwhether the respondent can be said to be a “late entrant” and is entitledto the benefit of Regulation 15 as a “late entrant” and the pensionablebenefits or not? Regulation 15 reads as under:

“Regulation 15 – Late Entrants

15. For purposes of the regulations in this Chapter, a “late entrant”is an officer who is retired on reaching the prescribed age limitfor compulsory retirement with at least 15 years commissionedservice (actual) qualifying for pension but whose total qualifyingservice is less than twenty years (actual).”

As per Regulation 15, a “late entrant” is an officer who is retiredon reaching the prescribed age limit for compulsory retirement with atleast 15 years commissioned service (actual). As the respondent did notretire on reaching the prescribed age limit for compulsory retirement,the respondent cannot be said to be a “late entrant”. The purpose andobject seems to be to give 5 years relaxation/grace for qualifying servicefor earning a retiring pension. As per Regulation 25(a), the minimumperiod of qualifying service actually rendered and required for earning aretiring pension shall be 20 years. However, if an officer is not able tocomplete the minimum period of qualifying service, i.e., 20 years andbefore completing 20 years of service he is attaining the age ofsuperannuation and is retired on reaching the prescribed age limit ofcompulsory retirement, but has completed 15 years of qualifying service,he is considered as a “late entrant” and is entitled to pensionary benefitsby getting 5 years grace period. Therefore, to that extent the same canbe said to be a relaxation/grace of 5 years for getting the benefit ofpensionable benefits provided the case falls within Regulation 15 and anofficer is a “late entrant”. As observed hereinabove, the respondentcannot be said to be a “late entrant” and therefore not entitled to thebenefit of Regulation 15 and therefore not entitled to the pensionarybenefits.

12. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe learned Armed Forces Tribunal dated 9.2.2018 in T.A. No. 25/2017quashing and setting aside para 2 of letter dated 31.01.2007 to the extentit denied terminal/pensionary benefits to the respondent and directingthe appellants to process the respondent’s claim for terminal/pensionary A

B

C

DE

F

G

H

Abenefits taking his qualifying service as 15 years as regards “late entrant”in terms of Regulation 15 of the Pension Regulations is hereby quashedand set aside and it is held that the respondent is not entitled to theterminal/pensionary benefits as a “late entrant” in terms of Regulation15 of the Pension Regulations. The present appeal is allowed accordingly,however, in the facts and circumstances of the case, there shall be noBorder as to costs.

Ankit Gyan

Appeal allowed.

C

D

E

F

G

H