ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

O.A.NO.101 of 2015

MONDAY, THE 29H DAY OF FEBRUARY, 2016/10TH PHALGUNA, 1937

CORAM:
HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANT:

EX CORPORAL SHALJAN M.,

NO.721461 N, S/O M.U.MADHAVAN,
MANDATHRA HOUSE,
KOOLIMUTTAM P.O.,
THRISSUR DISTRICT,
KERALA – 680 691.

BY ADV. SRI. V.K.SATHYANATHAN

Versus

RESPONDENTS:

1. UNION OF INDIA, REPRESENTED

BY ITS SECRETARY,
MINISTRY OF DEFENCE,
SOUTH BLOCK,
NEW DELHI – 110 011.

2. THE CHIEF OF THE AIR STAFF,

AIR HEADQUARTERS (VAYU BHAWAN)
RAFI MARG, NEW DELHI – 110 011.

3. THE DIRECTOR,
DIRECTORATE OF AIR VETERANS,
AIR HQ (VB), SUBROTO PARK,
NEW DELHI – 110 010.

4. THE PRINCIPAL CONTROLLER OF DEFENCE

ACCOUNTS (PENSION),
OFFICE OF THE P.C.D.A (P),
DRAUPADI GHAT,
ALLAHABAD, U.P. - 211 014.

BY ADV.SRI.P.J.PHILIP, CENTRAL GOVT. COUNSEL

OA No. 101 of 2015 : 2 :

ORDER

VAdm.M.P.Muralidharan, Member (A):

1. The Original Application has been filed by Ex

Corporal Shaljan, No.721461N of Indian Air Force seeking

reservist pension.

2. The applicant was enrolled in the Air Force on 16

January 1989 and discharged on 29 May 2002 at his own

request before fulfilling conditions of enrolment. At the time

of discharge he had completed regular service of 13 years

04 months and 13 days.

3. Mr.V.K.Sathyanathan, the learned counsel for the

applicant submitted that at the time of enrolment in the Air

Force, the applicant was engaged for 20 years regular and

02 years reserve service. Due to serious domestic problems

the applicant sought premature discharge and was

accordingly discharged from service on completion of 13

OA No. 101 of 2015 : 3 :

years 04 months and 13 days of service (Annexure A1). The

learned counsel further submitted that while allowing the

applicant's request, he was intimated that he was bound to

serve in regular Air Force reserve for 02 years as per

agreement executed at the time of enrolment and was also

asked to sign on reserve engagement forms. Accordingly

the applicant was in reserve for two years.

4. The learned counsel submitted that in accordance

with AFI/12/S/48, terms of engagement of Airmen were for

09 years regular and 06 years reserve. However post

decisions taken in 1976 based on Air HQ orders, transfer to

reserve is now for a period of 02 years (Annexure A2).

While the applicant was not called upon to rejoin during his

reserve period as no emergency arose, on completion of

reserve period, his total qualifying service became 15 years

04 months and 13 days.

5. The learned counsel further submitted that the

applicant was not aware of his entitlement to reservist

OA No. 101 of 2015 : 4 :

pension on completion of 15 years of combined regular and

reserve service. He had also not received any certificate

discharging him from reserve service as had been issued to

other similarly placed Airmen. On becoming aware of the

above provisions, the applicant made a request for discharge

certificate from Air Force reserve in August 2013 (Annexure

A3). Reply he received indicated that he had been

discharged with no reserve liability period (Annexure A4).

The learned counsel submitted that the response appeared

incorrect as the applicant should have been transferred to

reserves on discharge from regular service as per his terms

of engagement as was done for a similarly placed Air

Warrior who had also sought early discharge but was placed

in reserve for 02 years (Annexure A5).

6. The applicant on learning about another Air

Warrior who vide OA 129/2012 had been granted reservist

pension by this Tribunal, made an appeal to Respondents

seeking reservist pension in May 2015 (Annexure A6). He

was however informed by the third Respondent (Directorate

OA No. 101 of 2015 : 5 :

of Air Veterans), that he was not transferred to regular Air

Force reserve and since he had less than 15 years of service,

he was not eligible for any pension, ie, neither service nor

reservist (Annexure A7).

7. The learned counsel submitted that as the

applicant was engaged for 20 years regular and 02 years

reserve service, he was liable to be transferred to reserves

even if he had sought voluntary discharge making him

eligible for reservist pension. This would be in keeping with

the decisions rendered by the Principal Bench of the Armed

Forces Tribunal in OA 541/2011, Pritam Singh vs.

Union of India & Ors, OA 224/2014, Corporal Dinesh

Kumar Rana vs. Union of India & Ors. and TA

564/2010, Sadashiv Haribabu Nargund & Ors. vs.

Union of India & Ors. The learned counsel therefore

prayed that the Respondents be directed to grant reservist

pension to the applicant from the date it was due.

OA No. 101 of 2015 : 6 :

8. Sri PJ Philip, the learned Central Government

Counsel submitted that the applicant at the time of

enrolment had filled up IAFF (P) 5, (Form of enrolment as

Combatant), for 20 years regular service and 02 years of

reserve liability. He was however discharged from service

on 29 May 2002 at his own request before fulfilling

conditions of enrolment, on completion of 13 years and 85

days of regular service excluding 48 days of Non Qualifying

Period due to AWL. The applicant was not transferred to

regular Air Force service and was paid service gratuity and

DCRG.

9. The learned counsel submitted that Reg 121 of

Pension Regulations for the Air Force 1961 specifies the

minimum qualifying regular service of 15 years to earn

service pension. Further, in accordance with Reg 136 of the

Pension Regulations, a reservist who is not in receipt of a

service pension may be granted on completion of the

prescribed combined colour and reserve qualifying service of

not less than 15 years reservist pension.

OA No. 101 of 2015 : 7 :

10. The learned counsel further submitted that

constitution and regulation of Air Force Reserves are

governed by the Reserve and Auxiliary Air Force Act 1952

and as per sub-section (1) of Section 5 of the Act, the

competent authority may, by general or special order,

transfer any airman of the Air Force to the regular Air Force

reserve and any airman so transferred shall be deemed to

be a member of the said reserve. The applicant was not

transferred to Air Force reserves and therefore cannot claim

any reservist service. The applicant had made a request for

grant of pension in May 2015 and was informed that he was

not eligible for the same in accordance with the Regulations

on the subject (Annexure A7). The learned counsel further

submitted that various Benches of the Armed Forces Tribunal

including this Bench had considered the subject of grant

of reservist pension in a number of Original Applications

with similar prayers and all of them were dismissed, viz,

OA Nos.88/2010, 50/2013, 96/2010 & connected cases of

this Bench, OA No. 09/2014 of Chennai Bench and OA Nos.

1925/2011 and 1602/2012 of Chandigarh Bench. The

OA No. 101 of 2015 : 8 :

learned counsel submitted that the applicant neither had

regular service of 15 years nor combined colour and reserve

qualifying service of 15 years and therefore was not eligible

for either regular pension or reservist pension.

11. Heard rival submissions and perused records.

12. It is not disputed that the applicant was discharged

from service under Air Force Rule 15(2)(f) at his own

request before fulfilling the conditions of enrolment

(Annexure A4, A1). While the applicant has claimed a total

service of 13 years 04 months and 13 days as per Annexure

A1, the Respondents have indicated that qualifying service

is only 13 years and 85 days in view of 48 days AWL, as

brought out in Annexure A7 and as submitted in the reply

statement. Current Regulations provide for condonation of

shortfall of service upto a period of one year for grant of

pension. Therefore anyone aspiring to earn a pension would

need to have qualifying service of 14 years or more. While

the Respondents have submitted that the applicant was not

OA No. 101 of 2015 : 9 :

transferred to Air Force reserves, the applicant has claimed

that he had a reserve liability and should have been placed

in reserves as per his terms of enrolment.

13. The aspect of who constitutes Air Force Reserves

is no more res integra, as it was examined by this Bench in

OA.No.88/2010. The same being relevant is quoted below:

“7. The Reserve and Auxiliary Air Force Act,

1952 (hereinafter referred to as 'the Act') deals
with the reserve service in the Air Force. Section
2(a) defines 'Air Force Reserve' which means any
of the Air Force Reserves raised and maintained
under the Act. Section 2(b) defines the
“Competent Authority” which means an air officer
or a committee consisting of two or more air
officers appointed under section 3.

8. Section 4 of the Act deals with the

constitution of regular Air Force Reserve which
provides as follows:

“4. Constitution of Regular Air Force Reserve:

The Central Government may raise and
maintain in the manner hereafter in this
Chapter provided an Air Force Reserve to be
OA No. 101 of 2015 : 10 :

designated the Regular Air Force Reserve

which shall consist solely of persons
transferred or appointed to it under Section
5.”

9. Section 5 of the Act provides for the

recruitment to the regular Air Force Reserve. The
provisions of the section 5(1) being relevant on
the point are reproduced as follows:

“5. Recruitment to the Regular Air Force

Reserve - (1) The competent authority
may, by general or special order, transfer to
the Regular Air Force Reserve -

(a) any officer or airman of the Air Force

who under the terms and conditions of his
service is liable to serve in any Air Force
Reserve if and when constituted;

(b) any officer or airman of the Air Force

whose commission or engagement in the
Air Force has been terminated before the
commencement of this Act and who under
the terms of his commission or engagement
was liable to serve in any Air Force Reserve
if and when constituted;

(c) any officer or airman who has served in

the Air Force and has retired therefrom; and
OA No. 101 of 2015 : 11 :

any officer or airman so transferred shall be

deemed to be a member of the said
Reserve.”

10. Section 5, as extracted above, lays down

the various categories of the officers or Airmen of the
Air Force who can be transferred to regular Air Force
Reserve. The first category of the officers or Airmen
are those who under the terms and conditions of
their service, are liable to serve in any Air Force
Reserve. The second category of the officers or
Airmen are those whose commission or engagement
in the Air Force has been terminated before the
commencement of the Act and who under the terms
of their commissions or engagements were liable to
serve in any Air Force Reserve and lastly the Officers
or Airmen who have served in the Air Force and have
retired therefrom. The competent authority has
power to transfer such officers or Airmen to the
regular Air Force Reserve. He may do so by a general
or special order, but it is also to be kept in mind that
such transfers had to be made as and when Air Force
Reserve is constituted. If there is no Air Force reserve
nor it is constituted, there will be no question to
apply Section 5 of the Act and to make transfer to
regular Air Force Reserve. It is thus clear that there
should be at least an order of the competent
authority for transfer of any officer or Airman falling
in any of the aforesaid categories to the regular Air
Force Reserve. In absence of any such order, it
OA No. 101 of 2015 : 12 :

cannot be held that the person claiming the reservist

pension or any other benefit as reservist is or has
been a part of the Air Force Reserve.”

14. In the instant case the applicant has only relied

on the fact that at the time of his enrolment his terms of

engagement were for 20 years regular and 02 years

reserve. While this fact has not been disputed by the

Respondents, nothing has been placed on record by the

applicant that he had been transferred to regular Air Force

reserves in terms of Section 5 of the Act. The copy of the

discharge certificate placed before us by the applicant

(Annexure A1), has no entry of his being transferred to the

reserves nor is there any reserve liability indicated.

Similarly the extract of his service record also does not

indicate anywhere that he had been transferred to reserves

or if he had any reserve liability (Annexure A4). Therefore,

in our view, while at the time of enrolment he had been

informed that he would have a reserve liability of 02 years

on completion of his regular service, this was merely a

liability under Section 5(1)(a) of the Act and that does not
 OA No. 101 of 2015 : 13 :

in any way give the meaning that the applicant was

transferred to Air Force reserves. Similar views were taken

by this Bench in OA 96/2010 and connected cases and in OA

113/2014 and we find no reason to disagree.

15. Without conversion of the applicant's reserve

liability at the time of enrolment into actual reserve service,

the applicant's reckonable service is only 13 years and 85

days after excluding 48 days AWL period. This falls well

short of the period required for grant of pension as

maximum condonation permissible is only one year.

16. In view of the above, the Original Application is

devoid of any merit and is accordingly dismissed.

17. There will be no order as to costs.

18. Issue free copy to the parties.

Sd/- Sd/-
VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN
MEMBER (A) MEMBER (J)
an. (True copy)