Period of service in the Army under Short Service Commission must be treated as qualifying for pension; denying such recognition is discriminatory and arbitrary.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WP(C) No. 1097/2013 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/7059/2021 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court with following prayer:

a) “Petition under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu & Kashmir for issuance of appropriate writ, direction or order quashing Govt. Order No. 101/ASH of 2012 dated 12.07.2012 whereby the claim of the petitioners for treating the period spent by them in the Army and be counted for the service benefits as having been done in the case of similarly situated persons namely Dr. Maj.U.K. Sharma, Dr. Shreeyaz Ahmad Mir, Dr. Raj Kumar, Dr. P.D. Singh and Dr. S.H. Raina, has been rejected WITH

b) Further issuance of appropriate writ, direction or order commanding the respondents to treat the period spent by petitioner No. 1 for Short Service Commission in Army from 22.02.1982 to 27.06.1990 and by petitioner No. 2 from 21.02.1977 to 12.03.1988 as has been done in the case of similarly situated persons namely Dr. Maj.U.K. Sharma, Dr. Shreeyaz Ahmad Mir, Dr. Raj Kumar, Dr. P.D. Singh and Dr. S.H. Raina and give them all the service benefits in the like manner.

WITH

c) Further writ, direction or order quashing Order No. ASH/AH-180/87 dated 13.10.2009 by which the respondents have rejected the appeal filed by petitioners and upheld order passed by the authority concerned thereby treating the period spend on Short Service Commission as "dies non" vide Order dated 13.01.1993 and 31.03.1995 and also to quash Govt. Order No. 30ASH of 1993 dated 13.01.1993 passed by the respondents by which the respondents have treated the period of petitioner No. 1 from 22.02.1982 to 27.06.1990 spent on Short Service Commission in Army as "dies non" and also to quash Govt. Order No. 71-ASH of 1995 dated 31.03.1995 by which the respondents have treated the period of petitioner No. 2 from 21.02.1977 to 12.03.1988 spent in the army as "dies non" by issuance of writ of certiorari

WITH

d) Further writ, direction or order commanding the respondents to fix and release the proper pension further treating the period spend by the petitioners for Short Service Commission in the Army in the same way as has been done in the case of Similarly situated persons

WITH

e) Further writ, direction or order commanding the respondents to pay the gratuity which has been withheld without any rime or reason alongwith 12% interest

WITH

f) Such other additional or alternate relief which this Hon'ble Court may deem fit in the facts & circumstances of the case.”

3. The facts of the case as averred by the petitioner in his pleadings are as follows:

a) The petitioners, citizens of India and permanent residents of the erstwhile State of Jammu and Kashmir, were serving under the State Government when they were selected and deputed for Short Service Commission in the Indian Army after obtaining due permission and following prescribed procedure from the competent authority. The petitioners duly joined the Army and served their term under the Short Service Commission. Upon completion of their tenure, they were released and permitted to rejoin their parent department in the State service, their lien having been retained throughout the period of Army service.

b) However, despite the fact that the petitioners had obtained prior permission and rejoined duty immediately after