RAJEEV NAMBIAR AND ORS Vs UNION OF INDIA AND ORS

Advocates who appeared in this case: For the petitioners: Mr. Himanshu Upadhyay, Advocate (Through VC) For the Respondent: Mr. Sanjeev Uniyal, Sr. Panel Counsel with Mr. Dhawal Uniyal, Advocate (Through VC) Sgt. A. Prasad, DAV (Air Force)

CORAM:HON’BLE MR. JUSTICE SANJEEV SACHDEVA HON'BLE MR. JUSTICE MANOJ JAIN JUDGMENT MANOJ JAIN, J 1.

It needs to be assessed whether the petitioners herein are

entitled to “pro rata pension” from the date(s) of their respective discharge or not. 2.

Petitioners were enrolled in Indian Air Force and held various

ranks in the category of PBOR (Personnel Below Officer Rank) and NCO (Non-Commissioned Officer). After serving Indian Air Force between 10 to 15 years, they were discharged under Rule 15 (2)(g)(ii) of Indian Air Force Rules, 1969, being found „unsuitable for retention in the Air Force’. Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:30.10.2023 17:38:13

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3.

Petitioners contend that they are entitled to receive „pro rata

pension‟ on completion of 10 years of service.

They rely on the

judgments in Govind Kumar Srivastava Vs. Union of India & Ors.: 2019 SCC OnLine Delhi 6425 and Brij Lal Kumar Vs. Union of India & Ors.: 2020 SCC OnLine Delhi 1477. 4.

According to the Petitioners, they had, themselves, never

sought discharge from the Indian Air Force and despite spending their prime in the Indian Air Force in most adverse conditions, their services were abruptly terminated on the ground of unsuitability and such action of the Indian Air Force cannot deny them their right to get pension. They also pray that the pre-conditions as laid down in letter no. 8 (3)/86/A/D (Pension/Services) of Ministry of Defence dated 19 th February, 1987 for grant of „pro rata pension‟ only in case of joining Central Public Enterprises (CPE) be struck down as discriminatory and violative. 5.

Petitioners contend that there cannot be any arbitrary distinction

between the officers who are able to secure a job in any other governmental organization and those who are not able to secure any such job and, therefore, they should also be treated at par. 6.

Respondents have, on the other hand, submitted that the

petitioners are governed by “Pension Regulations for the Air Force 1961” and as per Regulation 121, the minimum qualifying service for earning „regular pension‟ is 15 years. Since the petitioners have put in service of less than 15 years, they are not eligible to seek any pension

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as per the aforesaid statutory provision. It is also claimed that, even otherwise, petitioners‟ contention for grant of „pro rata pension‟ is bereft of any substance as they were discharged, being unsuitable for retention in Air Force, and not because they were absorbed or to be absorbed by any Central Public Enterprise or Public Sector Undertaking. 7.

Respondents contend that the reliance by the Petitioners on said

precedents is misplaced as principle of „pro rata pension‟ stands attracted when any such official gets absorbed or employed in any other government organization, through proper channel, and under those circumstances only, the qualifying service is taken as 10 years for grant of „pro rata pension‟. 8.

There is no denying the fact that petitioners herein were

discharged under Rule 15 (2)(g)(ii) of Indian Air Force Rules, 1969. Relevant details of their posting and discharge are as under:Name of Petitioner

Date of Enrollment

Date of Discharge

Reason of Tenure Discharge of Service in IAF

1

Mr. Rajeev Nambiar

10.03.1986 02.02.1998

His service 11 yrs. no longer 134 required – days unsuitable for retention in IAF

2

Mr. Bino Agustine

30.06.1992 22.08.2005

His service 13 yrs. no longer 22 days required – unsuitable

S. No.

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for retention in IAF

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3

Mr. Rajesh Edathiparambil Vasudevan

03.08.1993 11.12.2005

His service 12 yrs. no longer 125 required – days unsuitable for retention in IAF

4

Mr. Saji Simon

30.06.1992 22.06.2005

His service 12 yrs. no longer 353 required – days unsuitable for retention in IAF

5

Mr. Jayachandran 15.05.1976 20.08.1986 Devendren

His service 10 yrs. no longer 98 days required – unsuitable for retention in IAF

6

Mr. Krishna Kumar 21.08.1985 28.04.1997 Govindan

His service 11 yrs. no longer 182 required – days unsuitable for retention in IAF

7

Mr. Ramavarma 19.02.1977 12.11.1989 Ram Kumar

His service 12 yrs. no longer 213 required – days unsuitable for retention in IAF

8

Mr. Kasturi Ravi

His service 11 yrs. no longer 296 required – days unsuitable for retention in IAF

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15.04.1981 03.05.1993

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9

Mr. Kola 26.08.1977 14.11.1987 Gopalakrishnaiah

His service 10 yrs. no longer 77 days required – unsuitable for retention in IAF

10

Mr. Harjinder Singh 06.09.1974 06.05.1986 Brar

His service 11 yrs. no longer 188 required days

11

Mr. Vijaykumar Dahyabhai

Desai 22.03.1980 03.09.1990

His service 10 yrs. no longer 114 required – days unsuitable for retention in IAF

12

Mr. Ravi Kumar

Ramesh 11.06.1986 07.12.1997

His service 11 yrs. no longer 169 required days

9.

Petitioners seem to have mixed up two different concepts i.e.

grant of „regular pension‟ on completion of minimum qualifying service and grant of „pro rata pension‟ on satisfaction of certain preconditions. 10.

As per Regulation 121 of Pension Regulations 1961, petitioners

need to have minimum qualifying service of 15 years for earning „regular pension‟. 11.

Since none of the Petitioners have completed 15 years of

service, they are not entitled to any regular service pension. 12.

Petitioners, however, contend that they are entitled to pro rata

pension as they have completed 10 years of service. According to the Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:30.10.2023 17:38:13

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Petitioners, there cannot be any discrimination between an official who is discharged after 10 years and the one absorbed in any other Central Government service after 10 years of service. 13.

Fact, however, remains that the concept of „pro rata pension‟ is

altogether different one and cannot be treated at par with „regular pension‟. 14.

Pro rata pension is given to those officers/officials of the Indian

Air Force who are either permanently absorbed in any other Central Government Enterprises/Public Sector Undertaking or appointed in such Central Government Enterprises/PSU when they apply through proper channel and obtain requisite No Objection Certificate (NOC) from the Indian Air Force. This is, however, subject to the stipulation that the concerned officer/official should have completed 10 years of service. 15.

Undoubtedly, earlier there was some disparity regarding grant

of „pro rata pension‟ as such benefit was given to commissioned officers only and it was in that context that the Co-ordinate Bench of this Court in Govind Kumar Srivastava (supra) held that the denial of similar kind of benefit of „pro rata pension‟ to PBOR/NCO was violative of Article 14 of the Constitution and accordingly respondent was directed to grant „pro rata pension‟ to said petitioner who had also rendered 10 years of service. 16.

In Govind Kumar Srivastava (supra), petitioner was enrolled in

IAF as Airman on 19.06.1998. Pursuant to an advertisement issued Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:30.10.2023 17:38:13

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by Air India, said petitioner applied for the post of Technical Officer. „No Objection Certificate‟ was also issued by the Indian Air Force permitting him to take up employment with Air India which at the relevant time was a public sector enterprise.

Said Petitioner got

selected in Air India and was discharged from Indian Air Force on 21.07.2008 i.e. after serving Indian Air Force for 10 years and one month. 17.

When Govind Kumar Srivastava sought „pro rata pension‟, it

was declined and it was in the aforesaid backdrop that he had raised the question of discrimination meted out to PBOR/NCO in the matter of grant of „pro rata pension‟ claiming that it was not based on any rational criteria or principle. It was contended that only commissioned officers of Defence Services were eligible for grant of pro rata pension on their absorption/joining any such Central Government Enterprises/PSU and no similar benefit was available to them. 18.

It was in the aforesaid circumstance that in Govind Kumar

Srivastava (supra), it was held that there was no justification for denial of „pro rata pension‟ to PBOR/NCO and, therefore, direction was issued to the respondents to grant „pro rata pension‟ to said petitioner. Union of India filed a Special Leave Petition being S.L.P. (Civil) No. 8813/2019 against the aforesaid order but the same was rejected by Supreme Court on 26.04.2019, leaving the question of law open. 19.

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The aforesaid legal position has been reiterated by another Co-

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ordinate Bench of this Court in Brij Lal Kumar (supra). 20.

Clearly, in the present fact-situation, said precedents are not

applicable at all. 21.

The principle of „pro rata pension‟ works in a different domain

altogether as the concerned official continues to be in service albeit in a different central government organization. Any such official would be entitled to receive pro rata pension (i) if he has already completed 10 years of service and (ii) is permanently absorbed or appointed in any Central Public Enterprise through proper channel. 22.

This special provision has been made for them so that on such

absorption/appointment in another central government organization, they are not put to any loss. Pro-rata pension is thus premised on the fact that though the officer in question may not have completed the full period of qualifying service for being eligible to receive regular pension, he gets pro rata pension, on existence of certain preconditions. 23.

Letter dated 19.02.1987 which deals with the subject of grant of

pro rata pensionary benefit to the commissioned officers of Defence Services on their permanent absorption in Central Public Enterprises in our view is not suggestive of any discrimination.

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24.

Pre-conditions mentioned in Paragraph-2 of said letter read as

under:“The provisions of this letter will apply to those who:

25.

(i)

While on deputation to Central Public Enterprises exercise an option for permanent absorption and are discharged/permitted to retire prematurely from Defence Services for this purpose.

(ii)

are appointed in Central Public Enterprises on the basis of their own applications sent through proper channel in response to advertisements and are permitted to retire prematurely from service in the Defence Services for the purpose of taking up the appointment in the Enterprises.

As noted hereinabove, the principle of „pro rata pension‟ does

not stand attracted herein as petitioners were neither absorbed nor appointed in any other Central Public Enterprises. They all have been discharged as they were found “unsuitable for retention in Air Force”. 26.

Since the objective behind grant of „pro rata pension‟ is totally

different, petitioners cannot draw any parallel. Moreover, there is nothing discriminatory or violative in such policy either. It caters to those officials who get absorbed in other central government organization through proper channel. Since they continue to serve central government organization, principle of pro rata pension has been introduced so that they are not, eventually, put to any disadvantageous position and are not denied pensionary benefits for not completing minimum qualifying service, particularly when they continue to serve one or the other Government Department. This Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:30.10.2023 17:38:13

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policy of pro rata pension universally applies to all such officials who choose to continue to serve another central government organization. This policy is, thus, neither meant nor applicable to those who are discharged on the ground of unsuitability or leave Indian Air Force to take up any private assignment/job. 27.

The doctrine of equality, enshrined in Articles 14 and 16 of the

Constitution of India, is intended to advance justice by avoiding discrimination. It stands attracted when equals are treated as unequals or where unequals are treated as equals. The guarantee of equality does not imply that the same rules should be made applicable in spite of differences in their circumstances and conditions. Although Articles 14 and 16 of the Constitution forbid hostile discrimination, they do not prohibit reasonable classification. Thus, equality means equality as between members of the same class of employees and not equality between members of separate independent classes. A person who is discharged on the ground of unsuitability cannot seek any parity with a person who continues to serve government, albeit, in a different organization. 28.

As the very word suggests, the concept of pro rata denotes

„proportionality‟ and as noted already, it is meant for those who continue to serve governmental organization. The letter in question is modelled on Rule 37 of Central Civil Services (Pension) Rules, 1972 which also provides that a Government servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Signature Not Verified Digitally Signed By:SONIA THAPLIYAL Signing Date:30.10.2023 17:38:13

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Government or in or under a body controlled or financed by the Government shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Government applicable to him. 29.

In T.S. Thiruvengadam v. Secy. to Govt. of India, (1993) 2 SCC

174, the Supreme Court, though in a different context, noted that said Rule 37 provides that a Government servant who has been permitted to be absorbed in service in a Central Government public undertaking in public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits in accordance with the orders of the Government applicable to him and went on to hold that the plain language of the rule did not permit any classification while granting the retirement benefits. It also, in no uncertain words, held that all those persons who fulfil the conditions under Rule 37 were a class by themselves and no discrimination can be permitted within the said class. Thus, the impugned letter cannot be said to be discriminatory as there is no unequal treatment amongst the equals. 30.

As an upshot of our forging discussion, petitioners are not

entitled to any „pro rata pension‟.

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31.

Since there is nothing suggesting any kind of discrimination or

unequal treatment either, the petition stands dismissed. 32.

No order as to costs.

MANOJ JAIN, J

SANJEEV SACHDEVA, J

October 30, 2023/dr

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