' MUHAMMAD IRSHAD KHAN (MEMBER).-- By way of the present appeal the appellant seeks to challenge the order, dated 30-4-1981, whereby he was compulsorily retired from service under the Government Servants (Efficiency and Discipline) Rules, 1973, with a further prayer that if the order of retirement is found correct, then the appellant may be allowed pension for the period of service rendered by him.
2. The order of compulsory retirement was passed on the 30th of April, 1981, and a departmental appeal filed by the appellant against this order was rejected as far back as October, 1981. Thus the prayer in respect of the order of compulsory retirement being hopelessly time-barred and without any proper explanation for the inordinate and inexcusable delay is not maintainable in the instant proceedings.
3. However, refusal to grant pension was intimated to the appellant only, vide department's letter dated 3-5-1983. The appellant submitted a representation against such decision which was rejected, vide order, dated 29-5-1983 and the appellant filed the present appeal on 15-6-1983 which thus is in time in respect of his claim for pension.
4. We have given our careful consideration to the submissions of the parties and the relevant statutory provisions. It transpired that the employer of the appellant i.e. The Directorate-General, Inter-Services Intelligence, considered that the appellant was entitled to pension and accordingly forwarded his case for grant of pension to respondent No,2, the Controller of Military Pension, which was turned down by him (respondent No,2). In support of his stand it was contended by respondent No,2 that the appellant had neither completed 25 years qualifying service for pension nor he was holding any post in permanent capacity, therefore, he was entitled to only gratuity and was not entitled to any pension. Reliance to this effect was placed on the Government decision contained in the Ministry of Finance OM, dated 18-8-1966. The relevant portion of the said OM is reproduced below with advantaged:- "2. In the case of Government servants employed in a substantive and permanent capacity in pensionable service, the amount of ordinary and special additional pensions shall be regulated as follows: -
(1) If a Government servant retires or is selected for discharge owing to the abolition of his permanent post, after completing qualifying service of 5 years but less than 10 years, he may be granted a gratuity not exceeding one month's emoluments for each completed year of qualifying service, subject to a maximum of Rs, 12,500. If such a Government servant has completed qualifying service of 10 years or more at the time of his retirement or discharge, as the case may be, he may be granted an ordinary pension not exceeding an amount calculated in accordance with the scale given in the New Pension Table annexed to this Office Memorandum and subject to the conditions and maxima laid down therein. The New Pension Table shall regulate all the four kinds of pensions, namely, Compensation Pension, Invalid Pension, Superannuation Pension and Retiring Pension.
(2)
(3)
3. A Government servant in pensionable service, who is not employed in a substantive and permanent capacity, may be granted an ordinary pension or gratuity, as the case may be, in accordance with the provisions of paragraph 2(1), if he retires from service, or if he is discharged after completing qualifying service of 25 years or more, owing to the abolition of his post or replacement by a "qualified" candidate. If such a Government servant is discharged after completing 10 years but less than 25 years qualifying service, he may be granted a gratuity not exceeding one month's emoluments for each completed year of qualifying service, subject to a maximum of Rs,25,000."
(Underlining is mine).
' A careful perusal of the above provisions would show that if a Government servant who is not employed in a substantive and permanent capacity either retires from service, or is discharged after completing qualifying service of 25 years or more, owing to the abolition of his post or on replacement by a qualified candidate, shall be entitled to grant of an ordinary pension or gratuity as provided in paragraph 2(1) ibid. It is quite clear that condition of completing qualifying service of 25 years or more is attached only to a case of discharge owing to the abolition of post or on replacement by a qualified candidate, and does not attach or relate, in any way, to the case of a retirement. It clearly means that if a Government servant not employed in a substantive and permanent capacity, retires from service, his case for pension shall be treated at par with the case of a Government servant employed in a substantive and permanent capacity and the amount of pension shall be regulated in accordance with paragraph 2(1) above. This conclusion is also in accord with the relevant provisions contained in the publication of Finance Division titled Compendium of Pension Rules and Orders (Corrected upto March, 1984). Article 474-C, printed on page 32 of the said book is reproduced below with advantage: - "474-C. Article 474-B does not apply to an officer in pensionable service who is not employed in substantive and permanent capacity and who is discharged from service owing to the abolition of his post or on replacement by a qualified person. In the case of such officers, the amounts of gratuity and pension are regulated as follows:--
(a) After a service of 10 years or more but less than 25 years, a gratuity not exceeding one month's emoluments for each completed year of service subject to a Maximum of Rs, 25,000.
(b) After a service of 25 years or more, a pension at the rates and subject to the conditions laid down in Article 474-B (b) "
' A plain reading of the above provision would clearly show that it is applicable only in case of an officer not employed in a substantive and permanent capacity who is discharged from service owing to the abolition of his post or on replacement by a qualified person. A case of retirement from service is not covered by this provision (Article 479-C) and is to be regulated by Article 474-B (printed on page 30 of the Compendium of Pension Rules and Orders) which entitles a Government servant to pension in accordance with the scale given therein, if he retires after a service of ten years or more.
6. The upshot is that condition of completing 25 years' service for entitlement to pension is applicable only to a case of a temporary Government servant who is discharged from service owing to the abolition of his post or on replacement by a qualified person, but if a temporary Government servant retires from service after service of ten years or more, he shall be entitled to pension in accordance with the prescribed scale. The stand taken by respondent No, 2, is, therefore, totally misconceived and unsustainable.
7. In the result the appeal of the appellant in respect of his claim for pension is accepted and the impugned order of respondent No,2 is set aside. The pension papers of the appellant should be prepared afresh by the Directorate-General, Inter-Services Intelligence, and be forwarded to the Controller of Military Pension who shall grant the admissible pension in the light of the observations made hereinbefore.
8. No order as to costs.