IMPORTANT POINT
An army officer, who has earned pensionary and other retirement benefits, who voluntary resign, cannot be automatically deprived of the terminal benefits.

Headnote:SERVICE LAW-Army Service-Pension Regulations for the Army-Regulations 22, 25, 26, 38 3, 4, and 16-Voluntary resignations of officers, who have to their credit minimum period of qualifying service-Whether an army officer who has earned pensionary and other retirement benefits, must forfeit the same on his resigning the job from the Army?-(No)-Such officers, who voluntary resign, cannot be automatically deprived of terminal benefits.
       Held : Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntary resign, cannot be automatically deprived of the terminal benefits. (Para 13)
       The letter of 25.4.1981 issued by the Army Headquarter does state that pensionary benefits will be lost if an officer resigns from service, but it has not been shown to us that this letter, in any way, supersedes or purports to amend or modify the aforesaid Regulations. In view of the specific right of pensionary benefits having granted by the said Regulations no effect need be given to the letter dated 25.4.1981. (Para 14)

JUDGMENT

Kirpal, J.-In this appeal, from the judgment of the Guwahati High Court, the question of law requiring consideration is whether an army officer, who has earned persionary and other retirement benefits, must forfeit the same on his resigning the job from the Army.

2. The respondent joined the Army Dental Corps sometimes in the year 1960. He was given grading in Army in 1962. Thereafter he served in different capacities and was classified as a specialist and had been promoted to the rank of Lt. Colonel. On 2.1.1984 the respondent wrote a letter requesting for permission to resign from the service w.e.f. 30.4.1984 or from an early date. The said letter contained the reasons why he wanted to resign. The said resignation was accepted by communication dated 24.7.1984 in which it was stated that the respondent shall stand relieved of all army duties as early as possible, but not later than 24.8.1984. In this letter, it was also mentioned that consequent upon his resignation the respondent shall not be entitled to gratuity, pension, leave pending resignation and travel concession.

3. On the receipt of the aforesaid letter, the respondent wrote a letter dated 18.8.1984 stating that he was not interested in leaving the service. This was followed by an another letter dated 22.8.1984 wherein the respondent prayed for cancellation of permission to resign. It was also stated therein that if it was not possible to cancel such permission, then his application may be treated as being one for release/pre-mature retirement. These letters were presumably written because the respondent realised that he was being deprived of pension, gratuity etc. as a consequence of his resignation. The respondent s letters dated 18.8.1984 and 22.8.1984 were not accepted and the respondent was "struck off" the strength on 24.8.1984.

4. The respondent soon after writing of letter dated 22.8.1984, filed a writ petition in the Guwahati High Court being Civil Rule No. 570 of 1984. The relief which has sought in that Civil Rule related only to the acceptance of his resignation. Two contentions were urged before the High Court which were (i) the resignation was not accepted by the competent authority and as such the acceptance of resignation could not be given effect to and: (ii) the letter of withdrawal should have been considered by the authority and the petitioner ought to have been allowed to withdraw the letter seeking the permission for resignation. This writ petition was, however, rejected.

5. The respondent then filed a fresh writ petition being Civil Rule No. 994 of 1986 in which it was contended that he should not be deprived of pension and other benefits. It was contended that the pension was not a matter of grace and as he had completed the qualifying service, he was entitled to the pensionary and other benefits.

6. The appellants, in its reply before the High Court, relied upon a letter dated 25.4.1981 of the Army Headquarter in which it was, inter alia, stated that if an officer was permitted to resign his commission, then he would not be entitled to any terminal benefits such as pension, gratuity and leave pending resignation.

7. The Guwahati High Court vide its judgment dated 25.4.1987 came to the conclusion that it was unreasonable to deny terminal benefits like pension in cases of resignation where prior permission was necessary to resign. Without striking down the contents of the aforesaid letter dated 25.4.1981 it came to the conclusion that the conduct of the respondent showed that he did not intend to lose his pension and other terminal benefit. It held that the aforesaid Army Headquarter s letter, containing the provision of automatic forfeiture of pensionary and other benefits in case of resignation, did not appear to be reasonable and could not, therefore, be given effect to. In this connection, it observed that "as validity of this provision has not been challenged in the present proceeding. We are leaving the matter only by saying that we ar

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1997 Supreme(SC) 28

IMPORTANT POINTAn army officer, who has earned pensionary and other retirement benefits, who voluntary resign, cannot be automatically deprived of the terminal benefits.

IMPORTANT POINT
An army officer, who has earned pensionary and other retirement benefits, who voluntary resign, cannot be automatically deprived of the terminal benefits.