Union of India v. NK DSC Simon Topno Retd

1. Allowed, subject to all just exceptions. W.P.(C) 15365/2024 & CM APPL. 64433-34/2024

2. The present petition has been filed under Article 226 of the Constitution of India assailing the Orders dated 07.07.2022 and 24.04.2023 passed by the learned Armed Forces Tribunal, Principal Bench, New Delhi (hereinafter referred to as ‘Tribunal’), whereby the learned Tribunal disposed of the petition filed by the respondent herein with the following directions:-

3. It was the case of the respondent herein before the learned Tribunal that after completing pensionable service with the Indian Army, he was enrolled in the Defence Security Corps (in short, ‘DSC’) of the Army on 11.07.2002 and was discharged from service on 30.04.2017, after rendering 14 years and 294 days of service. As there was a shortfall of 71 days in completing 15 years of service to become eligible for the second service pension in the DSC, the same was denied to the respondent, forcing the respondent to approach the learned Tribunal in the form of the above petition under Section 14 of the Armed Forces Tribunal Act, 2007, praying for a direction to the petitioners herein to condone the above shortfall in service and to grant him service pension.

4. As noted hereinabove, the learned Tribunal allowed the petition with the above-quoted directions.

5. Feeling aggrieved, the petitioners have challenged the same inter alia contending that the learned Tribunal has exceeded its jurisdiction in condoning the shortfall of 71 days of the respondent in completing the qualifying service of the petitioners for pension in the DSC.

6. The learned counsel for the petitioners further urges that the learned Tribunal has failed to consider the Policy Letter No.14(02)/2011/D/(Pen/Pol) dated 20.06.2017 issued by the Government of India through the Ministry of Defence (Department of Ex-Servicemen Welfare), which states that no condonation shall be allowed for grant of second service pension.

7. We have considered the submissions made by the learned counsel for the petitioners, however, we find no force in the same.

8. This Court, by a Judgment passed in Union of India & Ors. v. Ex/NK Chinna Vediyappan, Neutral Citation 2024:DHC:6858-DB, has rejected a similar challenge by holding as under:

23.04.2012 and 20.06.2017 issued by the Ministry of Defence, wherein it has been provided that no condonation for shortfall in qualifying service will be granted for second service pension with the DSC. Even though we find that these letters already stand quashed by the learned Tribunal in Ex Mohanan T (supra), we have, at the insistence of the learned counsel for the petitioners, examined the same, but are of the view that once the pension Regulations do not create any bar for condonation of shortfall in qualifying service, contrary instructions could not have been issued by the Ministry of Defence. It is trite law that administrative instructions cannot override the statutory regulations and therefore, we are of the considered opinion that the petitioners, by way of these letters, could not deprive the respondents of the rights accruing to them under the specific provisions of the Pension Regulations.”