Tarun Barskar and Jay Sharma
Introduction
A division bench of Justice MR Shah and Justice A.S. Bopanna examined significant issues relating to resignation and voluntary retirement in the recent judgment of Union of India and Others v. Abhiram Verma.
In this post, we’ve made an attempt to explain what the Supreme Court ruled on the issues of post voluntary retirement and law relating to “late entrant” under the Pension Regulations of Army.
Facts of the Case
The respondent in this matter, Abhiram Verma, was commissioned as a Short Service Commission Officer in the Indian Army (Armed Medical Corps) on February 27, 1992. On January 28, 1998, he was awarded Permanent Commission. On 15-04-2000, he applied for resignation stating lack of promotion prospects. But the DG of Medical Services (Army) rejected his resignation request. The respondent then filed a formal complaint with the Government of India’s Under Secretary, which was dismissed. The respondent challenged the Under Secretary of the Government of India’s order in the Jammu and Kashmir High Court. The High Court quashed the Under-Secretary’s order, and later his resignation was accepted, but he was not entitled to any terminal benefits other than encashment of leaves. He approached the Jammu and Kashmir High Court for gratuity and pension, but the matter was sent to the Armed Forces Tribunal. The Armed Forces Tribunal ordered to process the respondent’s claim for terminal benefits taking qualifying service period as 15 years as “late entrant” (Regulation 15 of Pensions Regulations). Aggrieved by this order, Appellant approached the hon’ble Supreme Court.
Submissions by the Appellant
Appellant contended that the instant matter was not of voluntary retirement but of resignation on the ground of lack of promotional prospects. Moreover, the respondent cannot be considered a “late entrant” and is ineligible for the benefit provided by Regulation 15 of the Pension Regulations. The AMC Regulations on Premature Retirement/Resignation of AMC Officers dated 26.03.1998, specifies that no terminal benefits are given if a person resigns due to lack of advancement possibilities.
Regulations 19(h) and 19(j) of the Army Pension Regulations, 2008 do not apply to him, as his name was struck down from the Army Medical Corps in the year 2007, and 2008 Regulations do not have retrospective application. Instead, this matter shall be governed under Pension Regulations, 1961.
Submissions by the Respondent
Regulation 19 of the Pension Regulations, 2008 is of the same matter as to the Pension Regulations, 1961. According to the tribunal, the respondent is entitled to late entrant benefits as well as rule 19(h) of the Pensions Regulations of 2008. The respondent’s previous pre-commission service of 6 years and 4 months will be included towards his 20-year service minimum for pension benefits in accordance with Pension Regulations, 2008.
In the cases of D.S Nakara v Union of India[ii] and K.J.S Buttar v Union of India,[iii] the court held that retirement date is immaterial. So, the 2008 Pension Regulations will apply in this case. It was stated that resignation and voluntary retirement are the same thing in Union of India v. Lt. Col. P.S,[iv] because government’s approval is required in both the cases for an Army personnel. Moreover, respondent contended that he had no intention to resign but his application of ‘voluntary retirement’ was treated as one of ‘resignation’ due to technical grounds.
Issues before the Court
- Whether the respondent is entitled to the benefit of Regulation 15 of Pension Regulations, 1961 as a “late entrant” and therefore entitled to the pensionary benefits?
- Whether the resignation tendered by the respondent on 15.04.2000 can be said to be a “resignation” or “voluntary retirement”?
Observations by the Supreme Court
The hon’ble Supreme Court allowed the appeal of the Union of India and set aside the judgments of Armed Forces Tribunal and hon’ble High Court.
The Supreme Court clarified the distinction between “voluntary retirement” and “resignation” and made it clear that, “a person can resign at any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.” The terms “voluntary retirement” and “resignation” are significantly distinct and as the respondent tendered resignation, he cannot be allowed to avail the pensionary benefits on the ground that he what he intended was to premature retirement form the and not resignation. As, he tendered his resignation, he will need to face the consequence of the same and cannot avoid them on the ground of defense of technicalities in the terms.
Hon’ble Court clarified on the issue of “late entrant” that, “late entrant” is an officer who retires after attaining the specified age restriction for compulsory retirement with at least 15 years of commissioned service (actual), under Regulation 15. In the present matter the respondent cannot be classified as a “late entrant” because he did not retire on the reaching compulsory retirement age. Also, on the point of application of Pension Regulations, 2008, the court observed that, “It is further observed that the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”
Conclusion
This judgment clarified the distinction among the term’s “resignation”, “voluntary retirement” and “superannuation”, which are very necessary for determining the pensionary benefits of an employee. The hon’ble Court also very succinctly clarified that when certain provision are excluded by the Legislature they cannot be included by implication, by which the Court emphasized on the doctrine of separation of power.
[ii] (1983) 1 SCC 305.
[iii] (2011) 11 SCC 429.
[iv] (1997) 2 SCC 28.
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