“Voluntary retirement v/s Resignation”; Supreme Court cogitates technicalities of legal terms and their implication in Armed Forces

Supreme Court: The Division Bench of M.R. Shah* and A.S. Bopanna, J., clarified the law relating to “late entrant” under Pension Regulations for Army. The Bench stated,

“When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Armed Forces Tribunal (Srinagar Bench) by which the Tribunal had granted terminal/pensionary benefits to the respondent and directed the government to process his claim taking his qualifying service as 15 years as regards “late entrant” in terms of Regulation 15 of the Pension Regulations and to release the same together with arrears, the government had approached the Court seeking intervention.

Factual Fulcrum

The respondent was commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer for a period of five years. Later on he was granted Permanent Commission on 28-01-1998 and thereafter he first became a Graded Specialist and then Classified Specialist.

By letter/application dated 15-04-2000, the respondent applied for resignation on the ground of lack of promotional prospects. At that time his actual date of superannuation at 56 years of age was 31-05-2014. The resignation application, having being initially rejected was later accepted vide order dated 31-01-2007 only after the intervention of the High Court, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave. Aggrieved by the said order, the respondent approached AFT.

Stand taken by the Central Government   

The State argued that the Tribunal had materially erred in directing to consider the qualifying service of the respondent as 15 years as a “late entrant” under Regulation 15 of the Pension Regulations and had wrongly observed that the respondent submitted the request for “voluntary retirement”. The State contended that it was not a case of “voluntary retirement”, but of “resignation” by the respondent on the ground of lack of promotional prospects, therefore, the respondent should not be entitled to the benefit as “late entrant”.

It was submitted that even otherwise the respondent did not complete the qualifying service for the purpose of “voluntary retirement” at the time he applied for resignation and that he was not even eligible for premature retirement as he had rendered service for 15 years and 27 days while minimum qualifying service required for retirement, i.e., 20 years under Regulation 25(a).

Submissions by the Respondent

The respondent argued that in accordance with Pension Regulations, 2008, respondent’s pre-commission service as Research Scholar with Gandhi Medical College, Bhopal and as a Medical Officer with BHEL, totalling to 6 years 4 months and 6 days should also be counted towards his total qualifying pensionable service. Accordingly, it was submitted that thus the respondent’s total qualifying pensionable service was 22 years 11 months and 2 days.

The respondent submitted that his real intention was to seek premature retirement but he was told that since he had less than 10 years of service at that point of time, premature release before 10 years of service had to be termed as “resignation” and not as “premature retirement”; therefore his application was treated as one of “resignation” and not as “premature retirement” due to technical reason, even though the he had no intention to resign and thereby losing his service benefits.

Opinion and Analysis

“If we see the averments in the writ petition all throughout the word used by the respondent is “resignation”. Therefore, only as an afterthought and to get the benefit of “late entrant” under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for ‘voluntary retirement’ and it was not an application for ‘resignation’”

Noticing that the respondent had accepted that on 15-04-2000 he was not eligible for “voluntary retirement” and therefore he used the word “resignation” to get out of the technical reason, the Bench stated that the respondent had tendered “resignation” for lack of promotional avenues/aspects and it was not a case of “voluntary retirement” as there is a distinction between “resignation” and “voluntary retirement” because a person can resign any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.

The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered “resignation”, the respondent had to suffer the consequences and could not be permitted to take ‘U’ turn and say that what the respondent wanted was “premature retirement” and not “resignation”.

Applicability of Pension Regulations, 2008

Rejecting the argument of the respondent that as per Regulation 19(h) and 19(j) of the Pension Regulations, 2008 a period 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 a Post-Graduate Qualification should also be counted for the purpose of pensionable service, the Bench opined that case of the respondent would be governed by the Pension Regulations, 1961, which had no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations, 2008 since the respondent’s name was struck off from the Army Medical Corps in the year 2007 and Regulation, 2008 has no retrospective applicability.

Whether the respondent was entitled to the benefit of Regulation 15 as a “late entrant”?

According to Regulation 15 if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a “late entrant” and is entitled to pensionary benefits by getting 5 years grace period. Hence, as the respondent did not retire on reaching the prescribed age limit for compulsory retirement, he could not be said to be a “late entrant”, therefore was not entitled to the pensionary benefits.

Decision

Resultantly, the impugned judgment and order passed by the AFT was hereby quashed and it was held that the respondent was not entitled to the terminal/pensionary benefits as a “late entrant” in terms of Regulation 15 of the Pension Regulations.

[Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845, decided on 30-09-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

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Appearance by:

For the Union of India: ASG Madhavi Divan

For the Respondent: Senior Advocate Vikas Singh


*Judgment by: Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah

One comment

  • I would place humbly my view point on the judgement. I have gone through the judgement and I submit the same for viwers comment .
    Point 1:
    Nakara case stressed that the benefit of liberalised pension on account of any amendment/modification of regulations or rules or any terms, existing pensioners, should not be deprived of the benefits, as all pensioners form a homogenous group. Any modification depriving terms and conditions as per Nakara Judgement, is violation of Article 14 and 16.

    Any variation in Beneficial terms available to pensioners in respect of qualifying service on account of inclusion of regulations 19(j), under Regulations 2008, should be made applicable to those Army men who joined under Pension Rules 1961 and it is applicable as per Pension Regulations 2008.

    To avoid such violation of Rules , SBI when amended the Pension Regulations in 2014, incorporated a Saving clause, to protect the decisions and pensioners under sbi pension rules 1955, as per the instructions of RBI.

    “27. Saving Clause. – All the actions taken and anything done under and as per the provisions of State Bank of India

    Employees’ Pension Fund Rules–1955 shall remain valid and binding on the concerned parties. The supersession of the said State Bank of India Employees’ Pension Fund Rules–1955 by these regulations shall not affect the validity of Various decisions/actions taken pursuant to the said rules. ”

    But, the Pension Regulations of Army 2008, clearly delinked and discriminated the rules of Pension Rules of Army 1991.

    Nakara case stressed that the benefit of liberalised pension on account of any amendment/modification of regulations or rules or any terms, existing pensioners, should not be deprived of the benefits, as all pensioners form a homogenous group. Any modification depriving terms and conditions as per Nakara Judgement, is violation of Article 14 and 16.

    Any variation in Beneficial terms available to pensioners in respect of qualifying service on account of inclusion of regulations 19(j), under Regulations 2008, should be made applicable to those Army men who joined under Pension Rules 1961 and it is applicable as per Pension Regulations 2008.

    To avoid such violation of Rules , SBI when amended the Pension Regulations in 2014, incorporated a Saving clause, to protect the decisions and pensioners under sbi pension rules 1955.

    “27. Saving Clause. – All the actions taken and anything done under and as per the provisions of State Bank of India

    Employees’ Pension Fund Rules–1955 shall remain valid and binding on the concerned parties. The supersession of the said State Bank of India Employees’ Pension Fund Rules–1955 by these regulations shall not affect the validity of Various decisions/actions taken pursuant to the said rules. ”

    But, the Pension Regulations of Army 2008, clearly delinked and discriminated the rules of Pension Rules of Army 1961, which is clear violation of rights under Article 14, 16 and 21, as per Hon’ble Three Judges Bench Judgement dated 02.03.2020, as both set of pensioners form a homogenous group of pensioners of Army men and cannot be discriminated by a cut off date. Thus, the above delinking clause of Pension Rules of Army Men 2008, to be quashed.

    Point 2:

    The Respondent even though resigned on 15.04.2000, the Army accepted the Resignation and struck off from the Rolls of Army only on 23.04.2007.

    Because of the grave mistake of the Army and delay of nearly 7 years in accepting resignation, his resignation has not been timely accepted and hence the date of Retirement should be taken as 23.04.2007.

    Date of appointment : 27.03.1992 (A)

    Date of acceptance of resignation: 31.01.2007 (B)

    Date of struck off from Army Rolls: 23.04.2007 (C)

    Length of service: (A)-(B) = 14 years, 10 months, 5 days (D)

    Length of service: (A)-(C): 15 years, 28 days. (E)

    Viewing from any angle , the Respondent is entitled proportionate pension as has rendered more than 10 years of service as per (D) and more than 15 years of service as per (E).

    Pension Regulations of Army 2008, Part I:

    Sub-Section-IV: Special Pension and Gratuity

    WHEN ADMISSIBLE

    56. Special pension and gratuity sanctioned to Personnel Below Officer Rank discharged in large number in pursuance of the Government policy –

    (i) of reducing the strength of establishment of the Armed Forces; or

    (ii) of re-organisation, which results in disbandment/laying off of any

    Unit/Formation/establishment,

    shall be admissible at the following rates.

    Length of actual qualifying

    service rendered

    Scale of special pension/gratuity

    (a) Special Pension

    (i) 15 years or more Equal to normal service pension

    (ii) 10 years or more but less

    than 15 years

    Equal to the service pension determined as under:-

    For 33 years qualifying service, service pension shall

    be calculated at 50% of the reckonable emoluments

    and for lesser period of qualifying service it shall be

    reduced proportionately. Weightage as admissible

    shall be added to the qualifying service actually rendered.” END

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