Holding

An officer who has completed the qualifying service and voluntarily resigns cannot be automatically deprived of pension and other terminal benefits; the Army Headquarters letter has no effect over the Pension Regulations.

Summary

Lt. Colonel P.S. Bhargava, an Army Dental Corps officer, completed the minimum qualifying service for a pension and applied for voluntary resignation, which was accepted with a notice that he would lose pension and other terminal benefits. He first challenged the acceptance of his resignation in a writ petition, which the Guwahati High Court dismissed. He then filed a second writ petition seeking pension and other benefits; the High Court allowed it, holding that the Army Headquarters letter of 25‑April‑1981 could not deprive him of his rights. The Union appealed, arguing that the second petition should not have been entertained and that the letter mandated forfeiture. The Supreme Court examined the Army Pension Regulations (1961) and found that only Regulations 3, 4, and 16 allow reduction or forfeiture, none of which cover voluntary resignation, and that the officer’s service was satisfactory. Consequently, the Court held that voluntary resignation after completing qualifying service does not automatically strip terminal benefits and that the Headquarters letter has no legal effect. The appeal was dismissed with costs.

Issues considered

Whether an army officer who has completed the minimum qualifying service and voluntarily resigns is entitled to pension and other terminal benefits.
Whether the High Court could entertain a second writ petition for terminal benefits that were not raised in the first petition.
Whether the Army Headquarters letter dated 25‑April‑1981 can override the provisions of the Pension Regulations for the Army, 1961.

Legislation cited

Constitution of Indias. Article 133, s. Article 134A, s. Article 136

Subjects

service lawterminal benefitspensionvoluntary resignationarmy regulationsconstitutional lawwrit petitionappellate jurisdiction

Judgment

A UNION OF INDIA AND ORS.
v.
LT. COL P.S. BHARGAVA

JANUARY 10, 1996

B (J.S. VERMA AND B.N. K.IRPAL, JJ.)

Service Law .~Terminal benefits---Entitlement to-Army Of-
ficer-Completed minimwn period of qualifying service for retiring per-
so1t-Subsequently, voluntarily resiy1ed-Held : Such Amiy Officers who
C voluntarily resign could not be automatically deprived of terminal
benefits-No effect need be given to Army Headquarter's letter dated
25.4.1981-Pension Regulations for the Amiy, 1961-Regns 3, 4, 16(a) & (b),
·22, 25, 26 and 38.

Constitution of India, 1950 : Article 136-Pleading-New Plea-Writ
D petition challenging acceptance of resignation rejected by High Court-Con-·
tention of entertainability of second writ petition by High Court not raised
before High Court-Held : such a new contention not allowed to be raised
for the first time be/ore the Supreme Co wt.

The respondent joined the Army Dental Corps and thereafter he
E served in different capacities and was classified a~ a specialist and had been
promoted to the rank of Lt. Colonel. The respondent, having completed the
minimum period of qualifying service for retiring pension, wrote, letter to
the appellant requesting permission to resign from service. The appellant
accepted the said resignation but mentioned that the respondent would not
F be entitled for pensionary benefits vide Army Headquarter letter dated
25.4.1981.

Being aggrieved the respondent filed a writ petition before the High
Court challenging the acceptance of his resignation. However, the High
Court rejected this writ petition. Subsequently, the respondent filed a
G second writ petition before the High Court claiming pension and other
terminal benefits which was allowed. Hence this appeal.

On behalf of the appellant it was contended that the second writ
petition should not have beeni entertained by the High Court because the
respondent had not claimed any relief with regard to pension and other
H terminal benefits. However, the appellant conceded that this contention was
130
u.o.r. v. P.S. BHARGAVA 131
I not raised before the High Court. A
Dismissing the appeal, this Court

Held : 1.1. It is not the case of the appellant that the respcndent's
service was not satisfactory. Therefore, no reduction of pension or
gratuity under Regulation 3 of the Pension Regulations for the Army, B
1961 could have been ordered. There is no suggestion that the conduct
v
of the respondent was such as to deprive him of the terminal benefits
under Regulation 4. [136-A-B]

1.2. Regulation 16 does not cover a case of voluntary resignation. C
Regulation 16(b) does refer to a case where an officer who has to his credit
the minimum period of qualifying service for retiring pension being called
upon to resign whose pension can be reduced. Had the Regulation intended
to take away the right of a person to th<' terminal benefits on his voluntary
resigning, then a specific provision similar to Regulation 16(b) would have
been incorporated in the Regulations but this has not been done. Once an D
officer has to his credit the minimum period of qualifying service, he earns
a right to get pension and as the Regulations stand, that right can been
taken away only if an order is passed under Regulation 3 or 16. The eases
of voluntary resignation of officers, who have to their credit the minimum
period of qualifying service are not covered by these two Regulations and, E
so such officers, who voluntarily resign, cannot be automatically deprived
of the terminal benefits. Therefore, no effect need be given to the Army
Headquarter letter dated 25-4-1981 which states that the pensionary
benefits will be lost if an officer resigns from service. [136-F-H, 137-A]

2. It will not be proper, at this late stage, to allow the appellant to F
raise the contention of entertainability of the second writ petition by the
High Court, the same having not been raised before the High Court, for the
first time before this Court. [i34- BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 252. of
1988. G
From the Judgment and Order dated 25.4.87 of the Assam High
Court in C.R. No. 994 of 1986.

N.N. Goswami, A.K. Srivastava, Ms. Anubha Jain and P. Parmesh-
waran for the Appellants. H
132 SUPREME COURT REPORTS [1997) 1 S.C.R.

A M.N. Krishnamani, Ms. Nishi Bhargav, P.N. Bhargav and P.K. Jain
for the Respondent.

The Judgment of the Court was delivered by

KIRPAL, J. In this appeal, from the judgment of the Guwahati High
B Court, the question of law requiring consideration is whether an army
officer, who has earned pensionary and other retirement benefits, must
forfeit the same on his resigning the job from the Army.

The respondent joined the Army Dental Corps sometimes in the year
1960. He was given grading in army in 1962. Thereafter he served in
c different capacities and was classified as a specialists and had been
promoted to the rank of Lt. Colonel. On 2.1.1984 the respondent wrote a
letter requesting for permission to resign from the service w.e.f. 30.4.1984
or from an early date. The said letter contained the reasons why he wanted
to resign. The said resignation was accepted by communication dated
D 24.7.1984 in which it was stated that the respondent shall stands relieved
of all army duties as early as possible, but not later than 24.8.1984. In this
letter, it was also mentioned that consequent upon his resignation the
respondent shall not be entitled to gratuity, pension, leave pending resig-
nation and travel concession.
E On the receipt of the aforesaid letter, the respondent wrote a letter
dated 18.8.1984 stating that he was not interested in leaving the service.
This was followed by an another letter dated 22.8.1984 wherein the respon-
dent prayed for cancellation of permission to resign. It was also stated
therein that if it was not possible to c~:::::~! such permission, then his
F application may be treated as being one for release/pre-mature retirement.
These letters were presumable written because the respondent realised that
he was being deprived of pension, gratuity etc. as a consequence of his
resignation. The respondent's letters dated 18.8.1984 and 22.8.1984 were
not accepted and the respondent was "struck off" the strength on 24.8.1984.

G The respondent soon after writing of letter dated 22.8.1984, filed a
writ petition in the Guwahati High Court being Civil Rule No. 570 of 1984.
The relief which was sought in that Civil Rule related only to the accep-
tance of his resignation. Two contentions were urged before the High
Court which were (i) the resignation was not accepted by the competent
H authority and as such the acceptance of resignation could not be given
U.O.I.v. P.S.BHARGAVA[KIRPAL,J.] 133
)
effect to and; (ii) the letter of withdrawal should have been considered by A
the authority and the petitioner ought to have been allowed to withdraw
the letter seeking the permission for resignation. This writ petition was,
however, rejected.

The respondent than filed a fresh writ petition being Civil Rule No.
994 of 1986 in which it was contended that he should not be deprived of B
pension and other penefits. It was contended that the pension was not a
matter of grace and as he had completed the qualifying service, he was
entitled to the pensionary and other benefits.

The appellants, in its reply before the High Court, relied upon a C
letter dated 25.4.1981 of the Army Headquarter in which it was, inter alia,
stated that if an officer was permitted to resign his commission, then he
would not be entitled to any terminal benefits such as pension, gratuity and
leave pending resignation.

The Guwahati High Court vide its judgment dated 25.4.1987 came to D
the conclusion that it was unreasonable to deny terminal benefits like
pension in cases of resignation where prior permission was necessary to
resign. Without striking down the contents of the aforesaid letter dated
25.4.1981 it came to the conclusion that the conduct of the respondent
showed that he did not intend to lose his pension and other terminal
benefits. It held that the aforesaid Army Headquarter's letter, containing E
the provision of automatic forfeitUre of pensionary and others benefits in
case of resignation, did not appear to be reasonable and could not, there-
fore, be given effect to. In this· connection, it observed that "as validity of
this provision has not been challenged in the present proceeding, we are
leaving the matter only by saying that we are not enforcing the provision".
The High Court, accordingly, allowed the writ petition and directed the F
appellants herein to make available to the respondent all the admissible
terminal benefits.

On the day the judgment was pronounced, a request was made for
a certificate to leave to this Court. This prayer was rejected. Thereafter the G
High Court suo moto by order dated 30.4.1987 issued a certificate Under
Article 134A(a) of the Constitution observing that this was a fit case for
appeal to this Court under Article 133(1) of the Constitution. Hence, this
appeal.

It has been first sought to be contended on behalf of the appellant H
134 SUPREME COURT REPORTS (1997] 1 S.C.R.

A that the second writ petition should not have been entertained by the
Guwahati High Court because the respondent had earlier filed a writ
petition challenging the acceptance of his resignation but had not claimed
any relief with regard to the terminal benefits. It is fairly conceded by Mr.
Goswami, the learned counsel for" the appellant, that this contention was
not raised ·before the High Court and, in our opinion, it will not be proper,
B at this late stage, to allow the Union of India to raise the contention in this
appeal for the first time.

It was then submitted on behalf of the appellant that according to
the aforesaid letter dated 25.4.1981, there was an automatic forfeiture of
C the terminal benefits on the resignation of the respondent having been
accepted and the High Court erred in granting relief to the respondent

It will be appropriate, at this stage, to refer to the provisions regard-
ing the grant of terminal benefits to which our attention has been invited.
The grant of pension to the army personnel is governed by "Pensioo
D Regulations for the Army" (hereinafter referred to as "the Pension Regula-
tion"). These Regulations have been issued under the auth-0rity of the
Government @f India and they apply to the personnel of Regular Army,
the Defence Security Corps and the Territorial Army.

Regulation 22 of the Pension Regulations relates to the grant of
E pension and is as under :
"An officer permitted to retire from service may be granted a
retiring pension or gratuity in accordance with the regulations in
this chapter, provided that a retiring gratuity may be granted at
the discretion of the President only in an exceptional case to an
F
officer who is permitted to retire or whose services are otherwise
terminated after completing the minimum qualifying service".

Regulation 25 provides for the qualifying service and is in the fol-
lowing terms :
G
"25(a) The minimum period of qualifying service required for
a retiring pension is 20 years (15 year in the case of a late entrant
see requlation 15). Only completed years of qualifying service shall
count.

H (b) The minimum period of qualifying service for a retiring
U.0.1. v. P.S. BHARGAVA[KIRPAL,J.] 135
)
gratuity shall be 10 years." A
The service which qualifies for pension is provided for in Regulation
26. Regulation 38 provides that All service which qualifies in full for
retiring pension also qualifies for gratuity and on the same conditions.

It would appear from the aforesaid Regulations that on the comple- B
tion of the qualifying service, an officer, like the respondent, would be
entitled to get pension and gratuity. The Regulations, however, contained
three provisions which specifically provide for situations where full amount
of pensionary benefits need not be given. These are Regulations 3, 4, and
16 which read as under :
c
"(3) The full rate of pension or gratuity provided for in these
Regulations shall not be granted unless the service rendered has
been satisfactory. If the service has not been satisfactory; the
competent authority may make such reduction in the amount of
pension or gratuity as it thinks proper. . D

(4) Future good conduct shall be an implied condition of every
grant of a pension or allowance.

(16)( a) When an officer who has to his credit the minimum
period of qualifying service required to earn a pension, is cashiered E
or dismissed or removed from the service, his/her pension may, at
the discretion of the President, be either forfeited or be granated
at a rate not exceeding that for which he/she would have otherwise
qualified, has he/she retired on the same date.

(b) When an officer who has to his/her credit the minimum F
period of qualifying service required to earn a pension is called
upon to retire or to resign or in the event of his/her refusing to do
so is retired from or gazetted out of the service, he/she may at the
discretion of the President be granted a pension at a rate not
exceeding that for which he/she would have otherwise qualified, G
had he/she retired on the.same date in the normal manner".

'f:I The mere perusal of Regulation 3 shows that the competent authority
may make a reduction in the amount of pension or gratuity if the service
has not been satisfactory. The reading of this Regulation clearly shows that
normally full rate of pension or gratuity is to be granted unless the service H
136 SUPREME COURT REPORTS [1997) 1 S.C.R.

A which is rendered is not satisfactory. It is not the case of the appellant that
the respondent's service was not satisfactory. Therefore, no reduction of
pension or gratuity under Regulation 3 could have been ordered.

Regulation 4 makes it a condition for the grant of pension or al-
lowance that the conduct of the officer must be good. There is no sugges-
B tion that tl:ie conduct of the respondent was such as to deprive him of the
terminal benefits under Regulation 4.

Regulation 16(a) gives the President the power either to forfeit or to'
reduce the rate pension in the event of an officer being cashiered, dis-
C missed or removed from the service. Under sub-regulation (b) of Regula-
tion 16, if an officer is called upon to retire or resign, he may at the
discretion of the President be granted a person at a rate not exceeding
what he would have otherwise qualified. Regulation 16 gives the power to
the President to reduce or forfeit the pension of an officer who has to his
credit the minimum period of qualifying service only in the event of his
D being cashiered, dismissed or removed from the service. Even in such a
circumstance, there is no automatic forfeiture or pension or gratuity. An
officer whose service is terminated by reason of his being cashiered,
dismissed or removed from the service would normally be entitled to get
his pension though the President has a right to forfeit or reduce the
E pension.

Regulation 16 does not cover a case of voluntary resignation. Regula-
tion 16(b) does refer to a case where an officer who has to his credit the
minimum period of qualifying service being called upon to resign whose
pension can be reduced. Had the Regulation intended to take away the
F right of a person to the terminal benefits on his voluntary resigning, then
a specific provision similar to Regulation 16(b) would have been incor-
porated in the Regulations but this has not been done. Once an officer has
to his credit the minimum period of qualifying service, he earns a right to
get pension and as the Regulations stand, that right can be taken away only
G if an order is passed under Regulation 3 or 16. The cases of voluntary
resignations of officers, who have to their credit the minimum period of
qualifying service are not covered by these two Regulations and, therefore,
such officers, who voluntary resign, cannot be automatically deprived of the
terminal benefits.

H The letter of 25.4.1981 issued by the Army Headquarter does state
)

U.O.I. v. P.S. BHARGAVA[KIRPAL,J.] 137

) that' pensionary benefits will be lost if an officer resigns from service, but A
it has not been shown to us that this Letter, in any way, supersedes or
purports to amend or modify the aforesaid Regulations. In view of the
specific right of pensionary benefits having granted by the said Regulations
no effect need be given to the letter dated 25.4.1981.

In our opinion, the decision of the High Court under appeal, whereby B
the writ petition filed by the respondent had been allowed, calls for no
·v- interference. The appeal is, accordingly, dismissed with costs. Counsel fee
Rs. 5,000 (Rupees Five Thousand only).

v.s.s. Appeal dismissed.