Supreme Court grants pension to Lt. Colonel despite service shortfall: Bobby Joseph vs. Union of India (2019)

Date of the Judgment: October 04, 2019
Citation: Civil Appeal of 2019 (@ Diary No. 10043 of 2017)
Judges: L. Nageswara Rao, J. and Hemant Gupta, J.
Can a military officer be denied pension in the rank he was promoted to, despite a shortfall in the required years of service? The Supreme Court of India addressed this issue in a case where an officer was promoted to the rank of Lieutenant Colonel but was denied pension in that rank due to a minor shortfall in service years. The Court ruled in favor of the officer, emphasizing that an order of promotion cannot be ignored based on a technicality of service length. This judgment was delivered by a bench comprising Justice L. Nageswara Rao and Justice Hemant Gupta.

Case Background

The appellant, Bobby Joseph, was initially granted a Short Service Commission on June 15, 1969, which was later converted to a Permanent Commission on June 15, 1974. His promotion and seniority were fixed with effect from August 12, 1970. He voluntarily retired from service as a Major on July 15, 1991, and was granted pension accordingly on July 29, 1991. Subsequently, on September 25, 1991, he was granted the substantive rank of Lieutenant Colonel. The appellant then sought a revision of his pension to reflect his entitlement as a Lieutenant Colonel, particularly after the implementation of the 5th Central Pay Commission. When his request was rejected, he approached the Armed Forces Tribunal, Regional Bench, Kochi.

Timeline

Course of Proceedings

The Armed Forces Tribunal initially directed the respondents to reconsider the appellant’s representation for revision of pension. However, upon reconsideration, the respondents rejected the claim, stating that the appellant had not completed the requisite 21 years of reckonable service for pension as a Lieutenant Colonel, as per an Army Order dated March 20, 1990. The Military Secretary Branch calculated that the appellant fell short by 30 days. The Armed Forces Tribunal dismissed the appellant’s O.A. No. 110 of 2015, leading to the current appeal before the Supreme Court of India.

Legal Framework

The core of the dispute revolves around the interpretation of the Army Order dated 20.03.1990, which stipulates that a person must have 21 years of reckonable service to be eligible for pension in the rank of Lieutenant Colonel (Time Scale). The respondents contended that for Short Service Commissioned Officers granted Permanent Commission, the date of the Permanent Commission should be considered for promotion and seniority. This would mean that the appellant’s reckonable service was 20 years and 11 months, falling short of the required 21 years.

Arguments

Appellant’s Submissions:

• The appellant argued that he was promoted to the rank of Lieutenant Colonel (TS) by an order dated October 15, 1991, and was therefore entitled to pension in that rank.
• He contended that having been promoted to the rank of Lt. Colonel, he is entitled to payment of pension in the rank of Lt. Colonel (TS).
• The Appellant relied on the order dated 15.10.1991 by which the competent authority approved the promotion of officers of 1970 to the substantive rank of Lt. Colonel by time scale.
• The appellant’s name was included in the list of officers promoted to the rank of Lt. Colonel (TS) in the order dated 15.10.1991.

Respondent’s Submissions:

• The respondents argued that the appellant did not complete 21 years of reckonable service as required by the Army Order dated 20.03.1990.
• They contended that the date of the Permanent Commission should be considered for calculating reckonable service.
• The respondents submitted that the order dated 15.10.1991 was issued due to a mistake, though they admitted it had not been withdrawn.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was whether the appellant was entitled to pension in the rank of Lieutenant Colonel (TS), given that he was promoted to that rank but had not completed 21 years of reckonable service as per the Army Order dated 20.03.1990.

Treatment of the Issue by the Court

Authorities

The Court considered the following:

• Army Order dated 20.03.1990: This order specifies the requirement of 21 years of reckonable service for pension in the rank of Lieutenant Colonel (TS).
• Order dated 15.10.1991: This order promoted officers of the 1970 batch to the substantive rank of Lt. Colonel by time scale, including the Appellant.

Judgment

The Supreme Court allowed the appeal, holding that the appellant was entitled to pension in the rank of Lieutenant Colonel (TS). The Court emphasized that the order dated 15.10.1991, which promoted the appellant to the rank of Lieutenant Colonel (TS), could not be disregarded. The Court noted that the respondents’ argument about the appellant’s shortfall in service was not valid in light of the promotion order. The Court also awarded costs of Rs. 50,000 to the appellant for the avoidable litigation.

The Court stated: “The Appellant cannot be denied payment of pension applicable to the rank of Lt. Colonel (TS) on the ground that he fell short of the reckonable service of 21 years.”

The Court also observed: “The Appellant retired in the year 1991 and has been made to run from pillar to post to get his rightful pension.”

Further, the Court noted: “In response to our query about the order dated 15.10.1991, the learned Additional Solicitor General, on instructions submitted that it was issued due to a mistake. She fairly submitted that the said order has not been withdrawn.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the fact that a formal order promoting the appellant to the rank of Lieutenant Colonel (TS) had been issued and had not been withdrawn. The Court emphasized that the technicality of a service shortfall could not override a valid promotion order, especially when the officer had been made to pursue his rightful pension for an extended period.

Key Takeaways

• A formal promotion order, once issued, cannot be ignored based on a technicality of service length.
• Military personnel are entitled to their rightful pension without unnecessary delays and litigation.
• The Court recognized the importance of upholding the rights of retired personnel.

Directions

The Supreme Court directed the respondents to pay the appellant the pension applicable to the post of Lieutenant Colonel (TS), along with costs of Rs. 50,000, within four weeks.

Development of Law

The ratio decidendi of this case is that a valid promotion order cannot be disregarded based on a technicality of service shortfall, especially when the officer has been made to pursue his rightful pension for an extended period. This judgment reinforces the principle that substance should prevail over technicalities in matters of pension and service benefits.

Conclusion

The Supreme Court’s judgment in Bobby Joseph vs. Union of India underscores the principle that a valid promotion order should be honored and that technicalities should not be used to deny rightful pension benefits to military personnel. The Court’s decision ensures that the appellant receives the pension he was entitled to as a Lieutenant Colonel (TS), along with compensation for the unnecessary litigation he had to endure.