IMPORTANT POINTS
Tribunal or Court can direct the authorities to exercise their power in proper cases.
Regulation 82(a) of the Navy (Pension) Regulations 1964 is null and void insofar as denying benefit of condonation of shortfall in qualifying service to navy-men getting discharged voluntarily.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

The appellants have preferred this appeal against orders dated 19th November, 2013 and 5th March, 2014 passed by the Armed Forces Tribunal, Principal Bench at New Delhi in O.A No. 401 of 2013 and R.A No. 11 of 2014 with M.A No. 120 of 2014 in O.A No. 401 of 2013 respectively. By the impugned order dated 19th November, 2013, the Tribunal allowed the original appeal filed by the respondent and held that the respondent rendered actual service to the extent of 14 years by rounding off, which makes him eligible for consideration of condonation of shortfall of pensionable service of one year and in view of striking off of Rule 82(a) the respondent cannot be denied the benefit of condonation of shortfall in service on the ground that he took the discharge from service voluntarily on his own request. Therefore, the Tribunal declared that the respondent shortfall in service stands condoned in the facts of the case and directed the appellants to calculate the total benefit of pension within a period of three months and to pay the amount. By the impugned order dated 5th March, 2014, the Tribunal dismissed the review application against its earlier order and rejected oral plea for leave to appeal before this Court.

2. The factual matrix of the case is as follows:-

The respondent joined the Indian Navy on 12th August, 1971 and after rendering 13 years, 10 months and 13 days service sought his retirement on compassionate ground upon which he was released from service on 24th June, 1985. The minimum qualifying period for pensionable service is 15 years.

There is a provision in the Navy (Pension) Regulations 1964 for condonation of shortfall in service, initially it was for six months and subsequently the condonation was made permissible for one year. The respondent claimed that he was entitled to the benefit under the said Regulations and the Government of India Instructions dated 30th October, 1987. The appellant denied the said benefit to the respondent vide order dated 14th August, 2001.

3. The respondent initially approached the High Court of Delhi by filing Writ Petition (C) No. 12507C of 2004. It was pointed out before the High Court that the Division Bench of the Bombay High Court in Writ Petition No. 430 of 2005 titled Gurmukh Singh v. UOI vide judgment dated 22nd November, 2006 declared the Navy (Pension) Regulation 82(a) as null and void being ultra vires to Article 14 of the Constitution of India. Regulation 82(a) provided that the benefit of condonation of shortfall in pensionable service shall not be applicable to the case in which a sailor got the discharge from the service at his own request. It was also brought to the notice of the High Court that similar finding was given by the Delhi High Court in the case of the respondent in Writ Petition (C) No. 12507 of 2004 vide order dated 6th November, 2007 and that the appellant-Union of India was directed to consider the case of the respondent for the purpose of condoning the deficiency in service and pass appropriate orders within three months. The appellant opposed the said prayer on the ground that the respondent has not completed the requisite service of 14 years upon which only one can get the benefit of condonation of shortfall of service upto one year. Therefore, according to the appellant, the respondent was not eligible candidate for condonation of the shortfall in pensionable service of one year. Before the High Court the respondent contested the statement made by the appellant that the respondent served for 13 years 8 months and 13 days and brought to the notice of the High Court that actually he served 13 years 10 months and 13 days which was not disputed. The respondent claimed benefit by rounding off the period of service in terms of Government of India Instructions dated 30th October, 1987. The Division Bench of the Delhi High Court after considering the rival submissions and taking note of instructions dated 30th October, 1987 by