JUDGMENT
Mukundakam Sharma, J
1. The issue that arises for consideration in this writ petition is whether an Emergency Commissioned Officer, who was engaged and appointed as Captain for a total period of 10 years, 1 month and 23 days would be entitled to claim pension and other benefits under the provisions of the Pension Regulation as admissible to Permanent Regular Commissioned Officers of the armed forces.
2. The petitioner joined the Indian Army as an Emergency Commissioned Officer on 29.4.1963. After the aforesaid engagement, the petitioner served from 29.4.1963 to 1.7.1968 as Emergency Commissioned Officer in the rank of Captain. The petitioner again served the Indian Army as an Emergency Commissioned Officer from 31.10.1969 to 22.9.1974. Thus the total military service rendered by the petitioner was 10 years, 1 month and 23 days (5 years, 2 months and 2 days in the first stint and 4 years, 11 month and 21 days in the second stint).
3. It is stated in the petition that despite the aforesaid service rendered by the petitioner as Emergency Commissioned Officer in the rank of Captain, the respondent did not grant any pensioner benefits to the petitioner, which are otherwise being regularly given to retired Regular Commissioned Officers of the armed forces. Reference was also made to the Army Instructions No.9/S/62 dated 24.11.1962 wherein the terms and conditions of appointments, tenure and other conditions of service of Emergency Commissioned Officers were laid down. It is provided therein that issue of pension to the emergency commissioned officers would be decided later. It is also admitted by the petitioner that the said issue regarding grant of pension to the aforesaid class of officers, namely, Emergency Commissioned Officers has not been decided by the concerned authority till date. It was submitted on behalf of the petitioner that the conditions of service including those relating to the termination of service of Emergence Commissioned Officers are the same as that of Permanent Regular Commissioned Officers and in support of the aforesaid contention reliance is placed in the decision of the Supreme Court in Captain Virendra Kumar v. Union of India reported in AIR 1981 SC 47.
4. The respondent has contested the writ petition by filing a counter affidavit wherein it was specifically and categorically stated that the Emergency Commissioned Officers granted commission directly from civil life are not eligible for pension but are eligible for terminal gratuity only in terms of Army Instructions No.6/S/65. It is also the stand of the respondent that the Emergency Commissioned Officers cannot be equated with Permanent Regular Commissioned Officers even in respect of other facilities
5. In the backdrop of the aforesaid pleadings of the parties, we have perused the various Army Instructions to which reference was made and our attention was drawn.
6. Counsel appearing for the petitioner, during the course of his submissions, placed strong reliance on Pension Regulations for the Army, 1961, in support of his contention that provisions of Pension Regulation are applicable to the petitioner. Reference was made to paragraph 26 thereof which provides for and lays down the period of service which qualify for pension. It was submitted that pension is payable to an officer irrespective of the type of commission and, therefore, an officer, whether on emergency commission or short service commission, would be entitled to get pension on retirement from service. In order to appreciate the said contention, the relevant portion of the said Para is quoted:-
”26. The following periods of service qualify for pension:
(a) Commissioned service. – Service as a permanent regular commissioned officer and, if it is preceded without a break, service of the following categories jointly or severally subject to the refund in the prescribed manner to Government of the gratuity, if any, other than war gratuity, received in respect of such service:
(i) Service as commissioned officer in the Army, Indian Navy and Air Force, irrespective of the type of commission;
(ii) Embodied or called out commissioned service as an officer of the late Indian Territorial Force or the late Auxiliary Force (India) or of the Territorial Army;
xx xx xx”
7. A bare reading of the aforesaid provision would clearly establish that the submission as aforesaid is fallacious and without any substance. This provision has been incorporated to give the benefit of service rendered prior to regular commission for the purposes of evaluating the qualifying period for pension. The provision is applicable to an officer who has rendered service as a Permanent Regular Commissioned Officer. It merely provides that if an officer has rendered service as a Permanent Regular Commissioned Officer, which is preceded by earlier service on short service commission or any other commission, then such prior service rendered by him would be counted and qualify for pension. The said provision, however, is not applicable when the service rendered by an officer is only on short service commission/emergency service commission and not at all on permanent regular commission.
8. The petitioner was initially appointed as Emergency Commissioned Officer in the rank of Captain and he served in that capacity for a period of 5 years, 2 months, 2 days. The second stint of service of the petitioner was also Emergency Commissioned Officer, which lasted for a period of 4 years, 11 months, 21 days. Therefore, the petitioner has in all 10 years, 1 month, 23 days of service in the Indian Army but the aforesaid service was rendered by him as Emergency Commissioned Officer. Emergency Commissioned Officers granted commission under the provisions of 9/S/62 were not granted any pension under Army Instructions No. 6/S/65. It is clarified therein that the officers granted emergency commission directly from civil life (i.e. other than serving Junior Commissioned Officers/other ranks and permanent Civil Government servants) will be eligible only for terminal gratuity at the rate of Rs.1,000/- for each completed year of service. We also find that at every stage and under every army instruction, a distinction has always been drawn between a Short Service Regular Commissioned Officer and a Permanent Regular Commissioned Officer. If the petitioner had been appointed as Permanent Regular Commissioned Officer, only then the provisions of Pension Regulations would have been applicable. Because the petitioner was appointed as an Emergency Commissioned Officer, therefore, the provisions of Pension Regulations are not applicable to him. The circular of 1965 did not provide for benefit of payment of any pension to Emergency Commissioned Officers but provided for payment of only gratuity.
9. In this connection, reference may also be made to a decision of this Court in Writ Petition (Civil) No.950/1987 titled Ex. Major (Mrs.) S.R. Alimchandani v. Union of India and ors, disposed of on 6th August, 2004, wherein also a similar question had are send for consideration was answered holding that an officer who had rendered service as Emergency Commissioned Officer but never as Permanent Regular Commissioned Officer is not entitled to get pension under the Pension Regulation. In our considered opinion, the said decision is applicable to the facts of the present case in full force. The judgment relied upon by the counsel for the petitioner in Captain Virendra Kumar (supra), in our considered opinion, is not applicable to the facts and circumstances of the case as the facts of the said case are distinguishable from the facts of the present case. In the said decision it was held that the conditions of service including termination of service which govern Emergency Commissioned Officers must largely equated with those that relate to Regular Commissioned Officers. However, the said case does not deal with the issue of providing benefit payable under the Pension Regulations. The issue with regard to payment of pensioner benefits to an Emergency Commissioned Officer was not the subject matter of the said writ petition.
10. In the light of the aforesaid discussions and findings, we are of the considered opinion that there is no merit in this petition and the same is required to be dismissed. Ordered accordingly.