(Prayer: Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorari calling for the records of O.A.No 131 of 2022 with MA 201 of 2022 dated 23.11.2022 passed by Hon’ble Armed Forces Tribunal, Chennai (Regional Bench) thereby quashing and setting, aside the impugned order.)

Manindra Mohan Shrivastava, C.J.

1. Heard learned counsel for the parties.

2. The short ground to challenge the order passed by the Armed Forces Tribunal is that the Tribunal ignoring the mandate of the provisions as contained in Regulation 125 of Pension Regulations for the Army, 1961 (for short, “Regulations”) has directed condonation of shortfall in the qualifying period of service, which could earn pension.

3. Learned Additional Solicitor General of India referred to the provisions contained in Regulation 125 to submit that exercise of discretion to condone or not to condone, as conferred under the aforesaid Regulations, is available excluding certain cases of exceptional nature as specified in the Regulations itself. One of them is that if a person is discharged on his own request, he could not claim any condonation by invoking the discretion under Regulation 125. The Tribunal completely ignored that the present was a case of discharge on own request. Therefore, the condonation clause itself was not applicable. The order, it is contended, is therefore in excess of jurisdiction and warrants interference of this Court in exercise of powers under Article 226 read with Article 227 of the Constitution of India.

4. Per contra, learned counsel for the respondent would submit that the order of the Tribunal proceeds on such similar orders passed by the Tribunal in many cases and, therefore, it cannot be said that the respondent is not entitled to those benefits. According to him, such kind of orders have been passed even by the Armed Forces Tribunal, Chennai, in many cases and, if the order is interfered with, the respondent would be excluded from the benefit, which has been granted in many such similarly situated cases.

5. Though learned counsel for the respondent submits that there are many decisions and orders, none of them, upon perusal, are found to be in support of his contention.

6. To be precise and in order to conclude, we need to refer to Regulation 125, which reads thus:

                   “125. Except in the case of:

                   (a) an individual who is discharged at his own request, or

                   (b) an individual who is eligible for special pension or gratuity under Regulation 164.

                   (c) an individual who is invalided with less than 15 years service, deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority upto six months in each case.”

7. It is vividly clear that those who have been discharged on their own request are not entitled to seek invocation of the discretion of the authority to condone the deficiency in pensionable period of service. In the present case, the respondent was discharged way back in the year 1996 on his own request even though he had not completed 15 years of qualifying period of service to earn pension. Three decades thereafter he woke up from slumber and moved an application on 29.12.2021 seeking condondation of the deficiency which was responded to by communication dated 7.9.2022 clearly stating that in view of the exception carved out under the Regulations, the benefit could not be granted.

8. The Tribunal has failed to take into consideration the provision of law, particularly, the reason assigned for rejection of the representation that the respondent was discharged from service on his own request. The opening part of the order of the Tribunal itself clearly states that the respondent was discharged on his own request. If that be the admitted position, we fail to understand how could the Tribunal pass such an order in transgression of the limits provided under the law. We have no hesitation in holding that the order of the Tribunal is patently illegal and in excess of its jurisdiction.

9. For the reasons stated above, the writ petition is allowed. The order of the Tribunal is set aside and the original application filed by the respondent is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.