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W.A. Nos. 774 and 1105 of 2009. Case: Chief of Air Staff Vs Augustian. High Court of Kerala (India)

Judgment Cited in 5 Precedent Map Related
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Case NumberW.A. Nos. 774 and 1105 of 2009
CounselFor Appellant: P. Parameswaran Nair, Asst. Solicitor General and T. Sanjay, A.C.G.C. and S. Krishnamoorthy, C.G.C. and For Respondents: V.K. Sathyanathan and S. Sanal Kumar, Advs.
JudgesK. Balakrishnan Nair and P.N. Ravindran, JJ.
IssueAir Force Act, 1950 - Section 16; Air Force Rules, 1969 - Rules 13 and 15(2); Air Force Rules, 1961 - Rule 15; Army Pension Regulations, 1961 - Regulations 158, 173 and 173A; Air Force Pension Regulations, 1961 - Regulation 153
Citation2010 (2) KLT 514
Judgement DateMarch 26, 2010
CourtHigh Court of Kerala (India)

Judgment:

P.N. Ravindran, J.

1. A common question arises in these Writ Appeals. They were therefore heard together and are being disposed of by this common judgment.

W.A. No. 774 of 2009

2. The appellants are the respondents in O.P. No. 39594 of 2002. The sole respondent is the petitioner therein. The respondent joined the Indian Air Force as Airman on 15.5.1985. As per the rules then in force, an Airman below 29 years of age who acquires a degree was eligible for being considered for regular commission in the Indian Air Force. After entry in service, the respondent acquired the LL.B. degree on 7.10.1996, but he was over-aged and was not eligible to be considered for regular commission. Later, on 9.12.1997, the upper age limit to be considered for regular commission was raised to 39 years. Though on 25.7.1998, the respondent applied for being considered for regular commission, his request was turned down on medical grounds, on 27.7.1998. He again applied for regular commission and was considered for regular commission on 7.6.1999, 1.11.1999 and 1.5.2000, but he was not successful in getting regular commission.

3. In the meanwhile, the Air Headquarters took a policy decision on 9.12.1997 for discharge of Airmen on educational grounds. This was to enable them to settle in the civil stream on their failure to get regular commission in the Indian Air Force. As per the said policy, an Airman who has acquired the requisite qualification for being considered for regular commission but fails to qualify for regular commission even in the third attempt, can seek immediate discharge from service within six months of availing the third chance. It was also stipulated that an incumbent who acquires the qualification for being considered for regular commission should make the first attempt for regular commission within one year of acquisition of the qualification. Since the respondent did not get regular commission, taking advantage of the new policy, he applied for discharge from the Indian Air Force on educational grounds. That request was rejected by order dated 19.9.2000 on the ground that he did not apply for regular commission within a period of one year from the date of acquisition of the qualification, but, only after two years and eight months. The respondent thereupon filed C.W.P. No. 14634 of 2000 in the High Court of Punjab and Haryana. By Ext.P2 judgment delivered on 25.1.2001, a learned Single Judge of the Punjab and Haryana High Court allowed the said Writ Petition, quashed the order rejecting the respondent's claim for discharge on educational grounds and directed the respondents therein to consider his case for discharge within two months. Pursuant to Ext.P2 judgment, the respondent's request for discharge on educational grounds was reconsidered and granted. He was thereupon discharged from the Indian Air Force on 15.5.2001.

4. About seven months later, the respondent submitted a representation dated 7.2.2002 seeking grant of disability pension. He contended that he was not selected for permanent commission on medical grounds, that at the time of discharge his disability was assessed by the Medical Board at 20% and therefore, he is entitled to disability pension. By Ext.P3 letter dated 20.2.2002, the second appellant informed him that as he was discharged from service at his own request, he is not entitled to disability pension. Reference was made to para. 158 of the Pension Regulations for the Air Force, 1961.-The respondent thereupon filed O.P. No. 39594 of 2002 in this Court challenging Ext.P3 and seeking payment of disability pension. He contended that as he has rendered sufficient service to earn service pension and at the time of discharge his disability was assessed by the Medical Board at 20%, he is entitled to disability pension. He also contended that Regulation 158 referred to and relied on in Ext.P3 applies only to those who suffer disability within seven years after discharge. It was further contended that as he had suffered disability while in service and the disability was attributable to such service, he is entitled for payment of disability pension.

5. The appellants resisted the Writ Petition by filing a counter affidavit. Inter alia, it was contended that though the respondent had applied for regular commission, he was not selected for regular commission as he did not make the grade, that he thereafter submitted an application for discharge on educational grounds and was discharged at his own request under Rule 15(2) of the Air Force Rules, 1969 by the competent authority. The appellants also contended that as per the rules, the respondent who was discharged at his own request and was not invalided from service on account of disability is not entitled for disability pension.

6. The learned single Judge overruled the contentions of the appellants and held that the respondent is entitled to grant of disability pension as provided in Regulation 153 of the Pension Regulations for the Air Force...

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