{"id":255289,"date":"2021-10-07T17:15:03","date_gmt":"2021-10-07T11:45:03","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=255289"},"modified":"2021-10-08T09:27:51","modified_gmt":"2021-10-08T03:57:51","slug":"voluntary-retirement-v-s-resignation-supreme-court-cogitates-technicalities-of-legal-terms-and-their-implication-in-armed-forces","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/10\/07\/voluntary-retirement-v-s-resignation-supreme-court-cogitates-technicalities-of-legal-terms-and-their-implication-in-armed-forces\/","title":{"rendered":"\u00a0\u201cVoluntary retirement v\/s Resignation\u201d; Supreme Court cogitates technicalities of legal terms and their implication in Armed Forces"},"content":{"rendered":"

Supreme Court: <\/strong>The Division Bench of M.R. Shah* and A.S. Bopanna, J., clarified the law relating to \u201clate entrant\u201d under Pension Regulations for Army. The Bench stated,<\/p>\n

\n

\u201cWhen 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.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n

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 \u201clate entrant\u201d 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.<\/p>\n

Factual Fulcrum<\/strong><\/span><\/h4>\n

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.<\/p>\n

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.<\/p>\n

Stand taken by the Central Government\u00a0 \u00a0<\/strong><\/span><\/h4>\n

The State argued that the Tribunal had materially erred in directing to consider the qualifying service of the respondent as 15 years as a \u201clate entrant\u201d under Regulation 15 of the Pension Regulations and had wrongly observed that the respondent submitted the request for \u201cvoluntary retirement\u201d. The State contended that it was not a case of \u201cvoluntary retirement\u201d, but of \u201cresignation\u201d by the respondent on the ground of lack of promotional prospects, therefore, the respondent should not be entitled to the benefit as \u201clate entrant\u201d.<\/p>\n

It was submitted that even otherwise the respondent did not complete the qualifying service for the purpose of \u201cvoluntary retirement\u201d 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).<\/p>\n

Submissions by the Respondent<\/strong><\/span><\/h4>\n

The respondent argued that in accordance with Pension Regulations, 2008, respondent\u2019s 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\u2019s total qualifying pensionable service was 22 years 11 months and 2 days.<\/p>\n

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 \u201cresignation\u201d and not as \u201cpremature retirement\u201d; therefore his application was treated as one of \u201cresignation\u201d and not as \u201cpremature retirement\u201d due to technical reason, even though the he had no intention to resign and thereby losing his service benefits.<\/p>\n

Opinion and Analysis<\/strong><\/span><\/h4>\n
\n

\u201cIf we see the averments in the writ petition all throughout the word used by the respondent is \u201cresignation\u201d. Therefore, only as an afterthought and to get the benefit of \u201clate entrant\u201d 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 \u2018voluntary retirement\u2019 and it was not an application for \u2018resignation\u2019\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n

Noticing that the respondent had accepted that on 15-04-2000 he was not eligible for \u201cvoluntary retirement\u201d and therefore he used the word \u201cresignation\u201d to get out of the technical reason, the Bench stated that the respondent had tendered \u201cresignation\u201d for lack of promotional avenues\/aspects and it was not a case of \u201cvoluntary retirement\u201d as there is a distinction between \u201cresignation\u201d and \u201cvoluntary retirement\u201d 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.<\/p>\n

The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered \u201cresignation\u201d, the respondent had to suffer the consequences and could not be permitted to take \u2018U\u2019 turn and say that what the respondent wanted was \u201cpremature retirement\u201d and not \u201cresignation\u201d.<\/p>\n

Applicability of Pension Regulations, 2008<\/strong><\/span><\/h4>\n

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<\/em> provisions like Regulation 19(h) and 19(j) of the Pension Regulations, 2008 since the respondent\u2019s name was struck off from the Army Medical Corps in the year 2007 and Regulation, 2008 has no retrospective applicability.<\/p>\n

Whether the respondent was entitled to the benefit of Regulation 15 as a \u201clate entrant\u201d?<\/strong><\/span><\/h4>\n

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 \u201clate entrant\u201d<\/em><\/strong> 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 \u201clate entrant\u201d, therefore was not entitled to the pensionary benefits.<\/p>\n

Decision<\/strong><\/span><\/h4>\n

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 \u201clate entrant\u201d in terms of Regulation 15 of the Pension Regulations.<\/p>\n

[Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845<\/b><\/a>, decided on 30-09-2021]<\/p>\n

_________________________________________________________________________
\nKamini Sharma, Editorial Assistant has put this report together\u00a0<\/span><\/strong><\/p>\n

_________________________________________________________________________<\/p>\n

Appearance by: <\/strong><\/p>\n

For the Union of India: ASG Madhavi Divan<\/p>\n

For the Respondent: Senior Advocate Vikas Singh<\/p>\n

\n

*Judgment by: Justice M.R. Shah<\/strong><\/p>\n

Know Thy Judge | Justice M. R. Shah<\/a><\/p><\/blockquote>\n