M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 9.2.2018 passed by the Learned Armed Forces Tribunal, Regional Bench, Srinagar at Jammu (hereinafter referred to as the 'Tribunal ') in T.A. No. 25/2017(SWP No. 454 of 2008), by which the learned Tribunal has disposed of the said transfer application by setting aside para 2 of letter dated 31.01.2007 to the extent it denied terminal/pensionary benefits to the respondent herein - original applicant (hereinafter referred to as the 'respondent ') and directed the appellants - original respondents to process his claim for terminal/pensionary benefits taking his qualifying service as 15 years as regards "late entrant " in terms of Regulation 15 of the Pension Regulations and to release the same together with arrears, the department - Union of India and another have preferred the present statutory appeal.
(2.) The facts leading to the present appeal in nutshell are as under: That the respondent herein commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer on 27.03.1992 for a period of five years at the age of 33 years and 10 months. He voluntarily applied for Permanent Commission on 7.8.1997. He was granted Permanent Commission at the age of 39 years and 2 months on 28.01.1998. Respondent became a Graded Specialist on 1.6.1994 and thereafter he became a Classified Specialist on 1.6.1999. By letter/application dated 15.04.2000, the respondent applied for resignation on the ground of lack of promotional prospects. At this stage, it is required to be noted that his actual date of superannuation at 56 years of age was 31.05.2014. The application for resignation came to be rejected by the DG, Medical Services (Army) vide communication dated 4.9.2000. That thereafter the respondent filed a statutory complaint on 24.03.2001 against the rejection of his resignation, the same was rejected by the Under Secretary, Government of India on 14.03.2002. That thereafter the respondent filed a writ petition before the High Court of Jammu & Kashmir being SWP No. 1573/2001 against the rejection of his complaint by the Under Secretary, Government of India. The said writ petition came to be allowed by the High Court vide order dated 11.10.2006 quashing the order of the Under Secretary which rejected the respondent 's resignation and directed the Army to consider the case of resignation afresh. That thereafter the respondent 's resignation came to be accepted vide order/communication dated 31.01.2007, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave (the denial of the terminal benefits was the subject matter before the Armed Forces Tribunal). The name of the respondent was struck off from the Army Medical Corps vide movement order dated 22.04.2007, with effect from 23.04.2007. 2.1 That thereafter the respondent preferred the writ petition before the High Court of Jammu and Kashmir being SWP No. 454/2008 for grant of gratuity and pension, which subsequently came to be transferred to the Armed Forces Tribunal as TA No. 25/2017. That by the impugned judgment and order dated 9.2.2018, the learned Tribunal has disposed of the said transfer application directing the appellants to process the respondent 's claim for terminal/pensionary benefits taking qualifying service as 15 years as a "late entrant " under Regulation 15 of the Pension Regulations. That leave to appeal has also been dismissed by the learned Tribunal vide order dated 25.03.2019. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal directing the appellants to process the respondent 's claim for terminal/pensionary benefits taking qualifying service as 15 years as a "late entrant " under Regulation 15 of the Pension Regulation, the Union of India and another have preferred the present appeal.
(3.) Ms. Madhavi Divan, learned Additional Solicitor General of India has appeared on behalf of the appellants and Shri Vikas Singh, learned Senior Advocate has appeared on behalf of the respondent. 3.1 Ms. Madhavi Divan, learned ASG has vehemently submitted that in the facts and circumstances of the case, the learned Tribunal has materially erred in directing the appellants to consider the respondent 's claim for terminal/pensionary benefits taking qualifying service as 15 years as a "late entrant " under Regulation 15 of the Pension Regulations. 3.2 It is vehemently submitted that as such the learned Tribunal has wrongly observed that the respondent submitted the request for "voluntary retirement ". It is submitted that as such it was not a case of "voluntary retirement ", but it was a case of "resignation " by the respondent on the ground of lack of promotional prospects. 3.3 It is submitted that even it was not the case on behalf of the respondent before the learned Tribunal that he submitted the application for "voluntary retirement ". Reliance is placed upon some of the averments in the petition before the High Court/learned Tribunal in which he has categorically stated that he tendered the "resignation " for want of promotional avenues. 3.4 It is submitted that since it was the case of "voluntary resignation from service ", the respondent shall not be entitled to the benefit as "late entrant " under Regulation 15 of the Pension Regulations. 3.5 It is submitted that even otherwise at the relevant time the respondent did not complete the qualifying service for the purpose of "voluntary retirement ". It is submitted that thus the date on which the respondent submitted the application for resignation on 15.04.2000, he was not even eligible for premature retirement. It is submitted that therefore it was a case of "voluntary resignation " and not "voluntary retirement ". 3.6 It is submitted that admittedly when the respondent tendered his resignation on 15.04.2000, he had only rendered service for 15 years and 27 days. It is submitted that had the respondent not voluntarily resigned and retired at the age of superannuation, (i.e, 56 years for a Lt. Col.) on 31.05.2014, he would have rendered 22 years 2 months and 2 days of service. It is submitted that therefore when the respondent tendered the resignation, he did not complete the minimum qualifying service as per Regulation 25(a), i.e., 20 years. It is submitted that therefore the respondent took the shelter of Regulation 15 as a "late entrant ". It is submitted that the minimum qualifying service for being eligible for retiring pension is 20 years under Regulation 25(a). It is submitted that it is only in the case of compulsory retirement on attaining the age of superannuation where it is impossible for the officer to complete 20 years due to the prescribed age limit that a concession of 5 years is granted to such "late entrants " that can earn a retiring person even after completion of minimum 15 years of service. 3.7 It is submitted that therefore as it was a case of "voluntary resignation " and not a case of "voluntary retirement/retirement ". The respondent cannot be said to be "late entrant " and therefore shall not be entitled to the benefit under Regulation 15 of the Pension Regulations. 3.8 It is further submitted that in the present case the learned Armed Forces Tribunal has erred in treating the present case of "voluntary resignation " as one of "voluntary retirement ". It is submitted that there is a vast difference between the "voluntary resignation " and "voluntary retirement ". Reliance is placed on the decision of this Court in the case of BSES Yamuna Power Limited v. Ghanshyam Chand Sharma, 2020 3 SCC 346 (paragraphs 13 and 14). 3.9 It is further submitted by Ms. Madhavi Divan, learned ASG appearing on behalf of the appellants that assuming for the time being that the respondent applied for "voluntary retirement ", in that case also, as on 15.04.2000 even he did not complete the qualifying service for the purpose of premature retirement. 3.10 Now so far as the case on behalf of the respondent, so stated in the counter affidavit on the reliance placed upon Regulation 19(h) and 19(j) of the Pension Regulations of the Army, 2008 to contend that the period of service in a central autonomous body as well as period of antedate of commission granted to an officer in respect of possession of a Post-Graduate Qualification shall also count towards reckonable pensionable service is concerned, it is submitted that the said Regulations, 2008 shall not be applicable as the respondent has resigned in the year 2000 and even his name was struck off from the Army Medical Corps in the year 2007 and therefore Pension Regulations 1961 shall be applicable. It is submitted that, as such, such a plea was not taken before filing of the counter affidavit before this Court and rightly not taken as the Pension Regulations 2008 shall not be applicable. 3.11 It is further submitted that even otherwise considering the applicable rules, namely, Premature Retirement/Resignation from Service of AMC Officers dated 26.03.1998, if a person has resigned on the ground of lack of career/promotional prospects the same cannot be a reason for acceptance of premature retirement/resignation and the officers who are permitted to resign are not entitled to terminal benefits, however, they are eligible to avail encashment of accumulated annual leave. It is submitted that therefore also not only the respondent was ineligible to take the benefit of Pension Regulation 15, but also was ineligible for any terminal benefits as per the aforesaid Regulations/Rules. 3.12 It is further submitted by Ms. Madhavi Divan, learned ASG that even the observations made by the learned Tribunal that the authority took seven years to decide on the application submitted by the respondent is factually incorrect. It is submitted that the respondent tendered the resignation on 15.04.2000 and the same came to be rejected by the DG, Medical Services (Army) on 4.9.2000 and even the respondent filed a statutory complaint against the rejection of the resignation on 24.03.2001. It is submitted that therefore, as such, there was no delay at all on the part of the authority in deciding the application for resignation. 3.13. Making the above submissions and relying upon the aforesaid decision, it is prayed to allow the present appeal. ;