The deficiency in qualifying service for pension purposes can be condoned irrespective of whether the personnel was discharged at their own request, as established by judicial precedent holding restrictive regulations ultra vires.

K.NATARAJAN, J.

This Writ Petition is filed challenging the order dated 31-05-2022 passed by the Armed Forces Tribunal, Regional Bench, Kochi (for short 'the AFT') in O.A No.393 of 2019, whereby the Original Application filed by the respondent for grant of service pension was allowed.

2. We have heard the learned Central Government Counsel appearing for the petitioners and the learned counsel appearing for the respondent.

3. The respondent was enrolled in the Indian Army as a Sepoy on 11-06-1986. He was discharged from service on 31-05-2000 on compassionate grounds and at his own request, after rendering of 13 years 11 months and 20 days of qualifying service. His claim for service pension was rejected on the ground that he had not completed the minimum qualifying service of 15 years and that the deficiency in service could not be condoned in the case of a person discharged at his own request. The statutory remedies pursued by the respondent also ended in rejection. Aggrieved thereby, he approached the AFT by filing O.A No.393 of 2019.

4. The AFT, upon considering the rival submissions and the precedents governing the issue, allowed the Original Application and directed the petitioners to grant service pension to the respondent by condoning the deficiency in qualifying service of one year and ten days. Challenging the said order, the Union of India has preferred this Writ Petition.

5. The learned Central Government Counsel submitted that the respondent approached the AFT after an inordinate delay of about nine years from the date of rejection of his claim and that the AFT granted relief without properly considering the issue of delay and laches. It was therefore contended that the impugned order warrants interference by this Court.

6. Per contra, the learned counsel appearing for the respondent supported the order of the AFT and submitted that the issue is squarely covered by the decision of the Hon'ble Supreme Court in Union of India & Another v. Surender Singh Parmar, [(2015) 3 SCC 404]. It was contended that the Delhi High Court had condoned the deficiency in qualifying service and the said judgment was affirmed by the Hon'ble Supreme Court upon challenge by the Union of India.

7. We have considered the rival submissions and perused the materials on record.

8. The facts are not in dispute. The respondent entered service on 11.06.1986 and was discharged on 31.05.2000 after rendering of 13 years, 11 months and 20 days of qualifying service. The sole ground on which service pension was denied was that the respondent had sought discharge at his own request and, therefore, the deficiency in qualifying service could not be condoned.

9. The Tribunal, while considering the claim of the respondent, relied upon the decision of the Delhi High Court in Surender Singh Parmar v. Union of India and Others in W.P.(C) No.12507 of 2004, wherein Regulation 125(a) of the Pension Regulations and Regulation 44 of the relevant Army Regulations were held to be ultra vires to the extent they disentitled personnel discharged at their own request from seeking condonation of deficiency in qualifying service and the said judgment was challenged by the Union of India before the Hon'ble Supreme Court. The Hon'ble Supreme Court affirmed the judgment and dismissed the Special Leave Petition filed by the Union of India.

10. As on date, there is no change in the legal position laid down by the Hon'ble Supreme Court with regard to condonation of deficiency in qualifying service. In such circumstances, the AFT rightly relied upon the said judgment and allowed the Original Application by directing grant of service pension to the respondent.

11. Therefore, we are of the opinio