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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 1 of 9
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI
T.A.No. 564 of 2010W.P.(Civil) No.6458 of 2009
Sh. Sadashiv Haribabu Nargund & Ors. .........Petitioners
Versus
Union of India & Ors. .......Respondents
For petitioner: Sh. A.G. Phanse, Advocate.For respondents: Sh. A.K. Srivastava, Advocate.
CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.HON’BLE LT. GEN. M.L. NAIDU, MEMBER.
O R D E R12.01.2011
1. This petition has been transferred from Bombay High Court and notice was
issued to the petitioner and in pursuance to that order Shri A.G. Phanse appeared on
behalf of the petitioners.
2. The petitioner by this writ petition has prayed that by appropriate writ or
direction respondents may be directed to take into consideration the reserved liability
period of petitioners in the petition to the active service rendered by the petitioners
and holding that, if so calculated, the petitioners having completed 15 years of
qualifying service for the pensionary benefit and directed the respondents to pay the
arrears of the pension to the petitioners with interest.
3. All these petitioners filed this joint petition challenging against the denial of a
pension on completion of their tenure of 15 years service. For convenient disposal
of all these petitions, facts given in the case of petitioner No.1 Shri Sadashiv
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 2 of 9
Haribhau Nargund are taken into consideration. Petitioner joined Air Force as an
Airman on 29th December 1952. When petitioner was appointed, it was clearly
mentioned that petitioner will be working with respondents for active duty for a period
of 9 years plus 6 years in reserve. Petitioner from 29th December 1952 to 28th
December 1961 worked in active duty and thereafter petitioner worked as the
reserved liability from 29th December 1961 to 28th December 1967 for a period of 6
years. If the period of 9 years of active service from 29th December 1952 to 28th
December 1961 and period of 6 years from 29 th December 1961 to 28th December
1967 are taken into consideration then the total number of years put in by the
petitioner in service works out to be 15 years which would qualify him for service
pension. During the period of reserved liability i.e. from 29 th December 1961 to 28th
December 1967, petitioner was called for emergency duty from 7 th January 1963 up
to 14th August 1963 during China War. On 14th August 1963, petitioner No. 1 was
released with the direction that his services are no longer required. It is alleged that
the petitioner when came to know of the decision given by the Kerala High Court in
W.P.(C) No. 29497 of 2004, the petitioner and like of him realised that their case is
identical. Thereafter the petitioners made correspondence to the Air Force and tried
to find out the fate of the Kerala High Court judgment through Right to Information
from the Supreme Court and other places and thereafter they made a representation
but without any result and ultimately the present writ petition was filed before the
Bombay High Court. The Bombay High Court admitted the position and after
formation of this Tribunal transferred this case to this Tribunal for decision. The writ
petition has been contested by the respondents and respondents in the petition have
raised a strong plea of delay and submitted that this is hopelessly belated petition
and it is also pointed out that all the records pertaining to the petitioner has been
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 3 of 9
destroyed except the Long Roll. The facts given by the petitioners have been by and
large admitted except that their services were terminated and they are not entitled to
seek any benefit of the reserved liability. A rejoinder was filed by the petitioners and
in rejoinder they have placed before us the three judgments of the Co-ordinating
Benches-one delivered by the Armed Forces Tribunal Bench at Kolkata, second
delivered by the Chennai Bench and the third by the Kochi Bench. In the judgments
of all these three Benches, the petitioners have been granted relief that after
condoning the shortfall up to a period of one year reservist pension in all those cases
have been granted.
4. We have heard learned counsel for the parties and perused the record.
5. It is true that this petition is extremely belated but this petition has been
admitted by the Bombay High Court and, therefore, it will not be proper for us to
dismiss the petition on account of laches alone. We can limit the relief to the
petitioner on account of laches. However the pension is not a bounty payable on the
sweet will and pleasure of the Government as has been held by the Apex Court in
the case of Deokinandan Prasad v. State of Bihar AIR 1971 SC page 1409.
Therefore we will accordingly consider modulating the relief after considering the
case on the merits.
6. It is admitted position that petitioner when recruited in Indian Army, he was
under an obligation to serve 9 years as regular service and 6 years as reserve
service and that has to be counted for making 15 years for the purposes of qualifying
service. The qualifying service for PBOR is 15 years. A similar matter when
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 4 of 9
approached before Hon’ble Kerala High Court, Hon’ble Kerala High Court took a
view that the respondent Union of India is bound to take into consideration the
reservist service for grant of pension. Against this order an appeal was filed before
the Division Bench which was dismissed as is clear from the judgment dated 31st
May 2006 in W.P.(C) No. 29497 of 2004. In that judgment it has been mentioned
that a similar order has been passed in earlier writ petitions also. In this connection,
our attention was invited to the detailed judgments delivered by the Chennai Bench
and the Kolkata Bench which have taken a view relying on the decision given by the
Hon’ble Kerala High Court and the two decisions of the Division Bench of same
Court held that reserve period is also liable to be counted for the purpose of pension.
As a matter of fact, in the initial appointment given to the petitioner it was clearly
mentioned that petitioner will have to serve 9 year as regular service and 6 years as
reserve service. Subsequently the respondents cannot reverse the situation that
since the appointment has been terminated, therefore, they are not entitled to count
6 years reserve service. The respondents are bound by principle of promissory
estoppels, that once they made a representation and asked the other party to act on
it and petitioner has served for 9 years as regular service and kept him in reserve
service for 6 years, they cannot wriggle out of this on the moral ground that
subsequently after China War their services were terminated also. This is clear
breach of terms and conditions of appointment. Once respondents availed the
services of petitioners for 9 years as active service and kept them on reserved
service for 6 years they cannot go back. During the reserve period, the petitioners
were called in 1962 emergency i.e. at the time of China War and all the petitioners
alleged to have offered their services at the disposal of the respondents. Therefore,
the respondents have fully utilised all the services of these petitioners i.e. 9 years
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 5 of 9
regular service and summoned them during the 1962 China War also. Now it does
not lie in the mouth of the respondents to turn back and say that since they have
been terminated they are not entitled to get the benefit of reserved service. This is
immoral and unjustified view and against the canons of principles of natural justice.
We fail to appreciate that once the appointment has been given and petitioners have
as per the terms of the appointment given their services to the respondents how can
now they back and say that since we have terminated the services of the petitioners,
we will not give them benefit of reserved service. This cannot be accepted and
respondents cannot be permitted to take this plea.
7. The Principle of Promissory Estoppel which has been evolved by Indian
Courts in passage of time have been crystalised in various decisions of the Supreme
Court. The first case in line is that of Union of India V. Anglo (Indo) –Afghan
Agencies Ltd. (AIR 1968 SC 718). Subsequently the various decisions have come,
but there is another landmark decision in the case of Motilal Padampat Sugar Mills
V. State of Uttar Pradesh (AIR 1979 SC 621). The Lordship Bhagwati J .has
summed up the principle which reads as under:
“…where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to rise in the future, knowing
or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to do back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not.”
The Lordship has further observed that :
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 6 of 9
“It is elementary that in a republic governed by the rule of law, noone, howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the
same footing as a private individual insofar as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government,committed to the rule of law, claim immunity from the doctrine of promissory estoppels? Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of “honesty and good faith?”. Why should the Government not be held to a high “standard of rectilinear rectitude while dealing with its citizen?”
8. Therefore, the principle of equitable promissory estoppel binds the
government to stand by their promise and not to be unfair and act in the
disadvantage of other party.
9. Similarly in the case of “Bakul Cashew Co. V. STO (1986) SCC 365, three
principles are evolved in order to protect the applicability of doctrine of promissory
estopple against the government. They are (i) that there was a definite
representations by the government, (ii) that the person to whom the representation
or promise was made, in fact altered their position by action upon such
representation and (iii) that he has suffered some prejudice sufficient to constitute an
estoppels.
10. These are three main ingredients in order to judge the action of the state that
whether the party has suffered on account of breach of the representation made by
the government.
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 7 of 9
11. In the present case, when all the incumbents were appointed it was clearly
understood that these incumbents will have 9 years of active service and 6 years of
reserve service. That means it will make 15 years of qualifying service for pension.
These petitioners worked for 9 years and kept reserved for 6 years. Subsequently,
government terminated this understanding and deprived them to count their reserved
liability for the purposes of fulfilling 15 years qualifying service. The representation
made by the government was acted upon by the petitioners. They served the nation
for 9 years and they were kept from reserve liability for 6 years. This is evident from
the fact that these people were called for 1962 China War, but subsequently, the
Government disowned them and terminated their services. That shows the
Government having represented to these citizens on which they acted upon and
thereafter they terminated this appointment to the disadvantage of the petitioner.
This cannot be permitted in view of the promissory estoppel as the other party has
acted on the representation made by the government and they have altered their
position and on account of that respondent stand to suffer as they have been denied
the pension. This is totally immoral and cannot be accepted. Similarly in the case of
State of S.P.Dubey Versus M.P.S.R.T.C.(AIR 1991 SC276), the State Government
took over the MP State Road Transport Corporation with specific assurance that the
service conditions of Company’s employees will not be adversely affected.
Subsequently, under Section 34 of the Road Corporation Act, 1950, the State
Government issued a direction that such employee will be subject to ‘such
assurance as may have been given to them by State Government’. However, under
Regulation 59 of the MP State Road Transport Corporation Employees Service
Regulations, the age of superannuation was fixed at 58 years instead of 60 years. It
was held that State Government’s assurance incorporated in the direction under
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 8 of 9
Section 34 was binding and hence the age of superannuation cannot be altered to
the detriment of its employees. In fact the doctrine of principle of promissory
estoppels is a doctrine evolved by equity to prevent injustice.
12. It is clearly unfair that a person should change his position much less the
Government to detriment of citizens. The public interest demands that
administration must abide by the promises held out to citizens. It is totally immoral to
go back from the promises held out by the mighty state to the detriment of a small
people. Therefore, it is the function of the Courts to see that the citizens rights
should be protected against the mighty state and state should be forced to abide by
the promises made to its citizens. The Lord Denning has very succinctly put it:
“It (Crown) can, however, be stopped when it is not properly exercising its powers, but is misusing them; and it does misuse them if it exercises them in circumstances which work injustice or unfairness to the individual without any countervailing benefit to the public” (Laker Airw ays, (1977) QB 643 606)
13. Therefore, respondent cannot be hard to say that we terminated the services
of the petitioner, therefore, they are not under obligation to grant them pension taking
into consideration the reserve liability.
14. The view taken by the Hon’ble Kerala High Court as well as Kolkata Bench of
Armed Forces Tribunal is fully justified. The Kolkata bench of the tribunal has even
directed the respondent to condone the delay, if there is any, for completing 15 years
for qualifying service for pension maximum to the extent of one year.
15. We allow this petition and direct that all the petitioners pension may be
worked out taking into the consideration their reserve liability and if it is short by
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T.A. No. 564 of 2010 (Writ Petition (Civil) No. 6458 of 2009) Page 9 of 9
period of one year that may be condoned. However, if any gratuity is given to them
then that amount of gratuity may be adjusted against their pension. Petitioners will
not be entitled to get entire arrears except last three years preceding to date of filing
of the petition i.e. 22.7.2009. The pension of all the petitioners may be worked out
within the period of three months as most of the petitioners are aged more than 75
and above and they are in the evening of their life. Therefore, the authorities are
directed to work out the pension as early as possible so that before they go to
heavenly abode, they may get atleast something to survive. No order as to cost.
A.K. MATHUR(Chairperson)
M.L. NAIDU(Member)
New DelhiJanuary 12, 2011.