IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI T.A.No. 564 of 2010 W.P.(Civil) No.6458 of 2009 Sh.

Sadashiv Haribabu Nargund & Ors. Versus Union of India & Ors. For petitioner: For respondents: CORAM: HONBLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON. HONBLE LT. GEN. M.L. NAIDU, MEMBER. ORDER 12.01.2011 Sh. A.G. Phanse, Advocate. Sh. A.K. Srivastava, Advocate. .......Respondents .........Petitioners

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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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 29th 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 29th 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 14 th 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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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)

approached before Honble Kerala High Court, Honble 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 31 st 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 Honble 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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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). 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 Bhagwati J.has

The Lordship has further observed that :

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It is elementary that in a republic governed by the rule of law, no one, 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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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 Companys 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 Governments assurance incorporated in the direction under
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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 The public interest demands that

Government to detriment of citizens.

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 Airways, (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 Honble 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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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 Delhi January 12, 2011.

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