JUDGMENT
Mukundakam Sharma, J.
1. The prayer which is made in this petition is for issuance of a direction to the respondents to grant pension to the petitioner from the date of his discharge from military service with interest.
2. The petitioner was enrolled in the Regiment of Artillery on October 15, 1963. During his service career spanning over 10 years and 258 days, the petitioner had earned more than four red-ink entries. As he had incurred more than four red-ink entries h was held to be a habitual offender and a show cause notice was issued to him directing him to show cause why he should not be discharged from service. The petitioner submitted his reply to the show cause notice. After receipt of the aforesaid reply, t e same was considered and the petitioner was interviewed by the Commandant, School of Artillery. Thereafter, an order was passed by the respondent discharging the petitioner from service being unsuitable for military service in terms of the provisions of Army Rule 13-III(v) with effect from June 29, 1974. After the aforesaid discharge, the petitioner was also paid his terminal dues including service and death-cum-retirement gratuity. The petitioner was satisfied with the aforesaid payment and did not also claim for payment of any pension for long 25 years after the date of his discharge from service. After expiry of about 25 years, the petitioner raked up an issue that he is entitled to payment of pension which should be full pension or in any c se, on pro-rata basis. In the rejoinder-affidavit the contention raised is that the discharge of the petitioner is illegal as the provisions of the Army Order and Army Rules 13, 17 and 22 was not properly and validly complied with at the time of issue once of order of discharge and, therefore, the aforesaid discharge is illegal. However, no such prayer is made in the writ petition nor the petition was amended. The writ petition has been filed only with the prayer for grant of pension to the petitioner.
3. As there is no prayer in the writ petition challenging the legality and validity of the order of discharge which was passed more than 25 years ago we are not inclined to enter into that controversy at all more so, at this highly belated stage. The only issue which is being considered and was argued at length in this petition is whether despite the aforesaid order of discharge the petitioner is entitled to grant of any pension in the light of his service rendered for 10 years and 258 days. Accordingly, we take notice of the said submission while disposing of this writ petition.
4. It was contended by the counsel appearing for the respondents that even the aforesaid prayer cannot be considered in this case due to inordinate delay and laches on the part of the petitioner in claiming such a relief. Being faced with the aforesaid position, counsel for the petitioner submitted that although there is delay and laches, the cause of action is a recurring one and if it is held that the petitioner is entitled to the aforesaid benefit, he could even now be paid his pension and that the foresaid claim would survive at least for a period of three years prior to the filing of the writ petition which cannot be rejected on the ground of delay and laches. In support of the same, the counsel relied upon a decision of this court in Ex-Signaman Shri Bhagwan v. Union of India and Ors. reported in 103 (2003) Delhi Law Times 269 (DB).
5. We have considered the aforesaid submissions of the counsel for the parties. We are of the considered opinion that there was definitely unexplained delay and laches on the part of the petitioner in approaching the court for grant of payment of such pe sion immediately after the order of discharge was passed. There was long delay of more than 25 years in the process during which the petitioner kept complete silence over the issue. However, following the ratio of the decision of this Court in Shri B agwan’s case (supra) we hold that if the petitioner is held to be entitled to get a pension of the nature as claimed in the petition then he would be entitled to such payment for a period of three years preceding the date of the filing of the writ petition in this court. We respectfully agree with the aforesaid principles of law laid down by the Division Bench of this Court and we follow the same for the purpose of this case also. Therefore, the claim of the petitioner for grant of pension would be examined by us and if he is found eligible for such payment in that event order shall be made in accordance with law laid down in Shri Bhagwan’s case (supra).
6. It is contended by the counsel appearing for the petitioner that even if an employee renders service for less than 10 years he is entitled to a retirement benefit like pension at least on pro-rata basis. In support of the said contention, the counsel appearing for the petitioner relied upon the circular issued by the respondents, i.e., the Ministry of defense, letter dated February 9, 1987, and also the circular issued on April 29, 1997. Counsel appearing for the respondents, however, refuted the aforesaid submissions and submitted that the petitioner is not entitled to grant of any pension from the date of his discharge as he had only 10 years and a few days of military service to his credit. In the light of the aforesaid submissions of the counsel appearing for the parties we may proceed to decide the issues that have been raised before us.
7. The petitioner had completed 10 years and 258 days of service in the Army. Regulation 132 of the Pension Regulations for the Army clearly provides that the minimum qualifying colour service for earning service pension would be 15 years unless otherwise provided. Therefore, going by the said provision the petitioner having rendered only 10 years and 258 days of service would not be entitled for service pension in terms of the aforesaid regulation. The petitioner also made a claim in the writ petition and the counsel appearing for the petitioner reiterated the same position during the course of his arguments that even if the petitioner is not entitled to grant of full pension he would at least be entitled to the grant of pro-rata pension in terms of the extent provisions.
8. We have gone through the Pension Regulations for the Army. In the said regulation we could not find any provision which provides for grant of pro-rata pension. Since the petitioner is governed by the Pension Regulation for the Army and not by the CS (Pension) Rules, reliance of the petitioner on the CCS (Pension) Rules in support of his contention is misplaced. Reliance of the petitioner on the Ministry of defense letter dated February 9, 1987 for grant of pro-rata pension is also misconceived s the said letter deals with grant of pro-rata pensioner benefits to the commissioned officers of the defense services on permanent absorption in public sector enterprises. The petitioner, who was enrolled as a Espy in the Army, was not a commission d officer in the Army nor he could be considered as permanently absorbed in a public sector undertaking. Therefore, the said circular is of no assistance to the petitioner. Reliance of the petitioner on the circular of the Ministry of defense dated Apeil 29, 1997 is again misplaced and misconceived as the said circular deals with grant of pro-rata pension to ex-airmen who were absorbed in public sector undertakings before completing 10 years of service in Government of India. In the said circular it s clearly mentioned that there is no provision in the Air Force Pension Regulation for grant of pro-rata pensionary benefits to ex-airmen on their permanent absorption in the public sector undertakings in case of persons who had not completed the minimum qualifying service of 15 years required to earn military pension.
9. Counsel appearing for the petitioner, however, drew our attention to the order of this Court in CWP No. 4942/1994, titled R.D. Sharma and Ors. v. Union of India, dated December 9, 1994. It is an admitted position that in view of the directions in t e said decision the government had granted pro-rata pension to the said petitioners. It is, however, pointed out and is shown to us that the aforesaid grant of pro-rata pension to the petitioners of the said writ petition is by way of special case in view of the observations made in the said decision. It is also disclosed from the records that the respondents had filed an appeal in all the aforesaid cases which was registered as L.P.A. No. 342/2000. In the order passed by the Division Bench in the aid appeal on November 29, 2001 this court had observed that the airmen who completed 10 years of service were given benefit of pro-rata pension as a special case pursuant to the orders of the writ court and the qualifying service under Regulation 121 would remain to be 15 years. The order of the learned single judge was set aside by the Division Bench by its order dated November 29, 2001.
10. The aforesaid discussion makes it crystal clear that in cases involving the Army service one has to complete minimum qualifying service as laid down in Regulation for earning army service pension. In the present case, the petitioner being a person el below officer rank could earn pension only after completing 15 years of minimum qualifying service as provided for in Regulation 132 of the Pension Regulations for the Army. There is also no provision in the Army Pension Regulations for grant of pro rata pension for personnel below officer rank. In this connection we may appropriately refer to a decision of this court in A.K. Das v. Union of India and Ors. being CWP No. 2861/1999, dated December 20, 2001 wherein also it was held that in order o earn pension in the Indian Air Force by the airmen, he has to render 15 years of qualifying service under Regulation 122 which governs the case of airmen. Reference can also be made to the decision in Mahinder Singh (Ex.Sep.) v. Union of India and Ors. reported in 2001 VI AD (Delhi) 774. In the said case it was held that the Pension Regulations applicable to the army personnel require that the minimum service that qualifies for service pension would be 15 years in the case of army personnel.
11. The present petitioner is governed by the said provision of para 132 of the Pension Regulations for the Army as was also the position in Mahinder Singh’s case (supra) and, therefore, the law laid down in Mahinder Singh’s case is fully and squarel applicable to the facts of the present case. In the said case it was held that there was no provision in the Pension regulations for the Army for making payment of any pro rata pension for the army personnel.
12. Counsel appearing for the petitioner placed very strong reliance on the Single Bench decision of this Court in CWP No. 3894/1997 dated December 16, 1999, wherein reference was made to another Single Bench decision of the case in M.C. Dhingra v. Union of India and Ors., Civil Appeal No. 3371/1996, dated February 5, 1996 and it was held that the petitioners would be granted the benefit of pro-rata pension after considering that the petitioners have put in 10 years of service which would entity e them to grant of such pro-rata pension. However, in view of the aforesaid discussions we hold that whatever is stated in the said decision does not lay down the correct law and the decision rendered therein would be applicable only to the facts of t e said case. We also hold that since the qualifying service of the petitioner falls short of the minimum requisite of 15 years, the petitioner would not be entitled to grant of any pension.
13. In the light of the aforesaid discussion, we find no merit in this petition and the same is dismissed.