Jammu & Kashmir High Court
Union Of India Through Its Secretary To vs Ex Nk Darshan Lal Son Of Shri Dhain Chand on 2 April, 2025
Bench: Sanjeev Kumar, Puneet Gupta
Sr. No.36
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.1707/2024
1. Union of India through its secretary to ..... Petitioner (s)
Government of India, Minister of
Defence, South Block New Delhi
2. Additional Director General Personnel
Services Adjutant Genera's Branch
Integrated HQ of Ministry of Defence
DHQ PO New Delhi
3. Principal Controller of Defence
Acocunts (Pensions), Draupadi Ghat
Allahabad Uttar Pradesh
4. OIC Records DSC Records care of 56
APO
Through :- Mr. Vishal Sharma DSGI
V/s
Ex Nk Darshan Lal son of Shri Dhain Chand .....Respondent(s)
resident of Village Mahal Shahan Post Office
Ramgarh Tehsil and District Samba
Through :- Mr P.L.Sharma Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1 This petition, filed by the Union of India invoking Article 226 of the Constitution of India, seeks to challenge an order and judgment dated 28.07.2022, passed by the Armed Forces Tribunal (AFT), Srinagar Bench at Jammu, in Original Application (OA) No. 162/2021 titled Darshan Lal vs. Union of India and ors, whereby the AFT has allowed the OA filed by the respondent herein and quashed the impugned letter rejecting the claim of the respondent for the grant of service element of disability pension of DSC service. The AFT has held the respondent entitled to arrears of the service 2 element of disability pension, restricted to three years prior to the institution of the OA by the respondent.
2 The judgment impugned has been called in question by the petitioners, inter alia, on the ground that the AFT has held the respondent entitled to the service element of disability pension relying upon Regulation 179 of the Pension Regulations for the Army, 1961 ["Pension Regulations of 1964"] which Regulations as per the petitioners have been superseded and replaced by the Pension Regulations for the Army, Part-I (2008) ["Pension Regulations of 2008"). It is submitted that, in terms of Pension Regulations of 2008, the service element of disability pension is not payable to an ex- serviceman working with the DSC unless he has rendered fifteen (15) years of qualifying service or has been invalidated out of service before completion of his term of engagement.
3 Mr. Vishal Sharma learned DSGI appearing for the petitioners would argue that the AFT did not take note of the Pension Regulations of 2008 and erroneously relied upon Regulation 179 of the Pension Regulations of 1961 He would submit that the respondent came to be discharged on completion of his term of engagement on attaining the superannuation age of 55 years and, therefore, was not entitled to the service element of the disability pension merely on the ground that at the time of his discharge, he was found suffering from a disability attributable to or aggravated by army service. 4 Per contra, learned counsel appearing for the respondent would submit that Regulation 179 of Pension Regulations of 1961 is a provision that is quite clear and unambiguous. It clearly provides that if a person, at the time of his discharge, is found suffering from a disability of 25% or more, attributable to or aggravated by military service, he shall be deemed to have 3 been invalidated out of service and shall be granted disability pension from the date of retirement. Learned counsel for the respondent would submit that the Pension Regulations of 2008 do not have any statutory force, nor the same have been issued after following the procedure prescribed under the Army Act and the Business Rules of the Government of India. He would, therefore, argue that the Pension Regulations of 2008 are required to be ignored, and it is Regulation 179 of Pension Regulations of 1961 that would be applicable to the case of the respondent. He would also raise an issue that on the date the respondent was engaged in DSC post his retirement from the Indian Army, the Pension Regulations of 1961 were in vogue and, therefore, any subsequent amendment would not be applicable to him.
5 Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the following questions, which had arisen for determination before the AFT, have not been considered and determined by it:
(i) Whether the Pension Regulations of 1961 stand superseded and replaced by the Pension Regulations of 2008; and
(ii) Whether the case of the respondent is governed by the Pension Regulations of 1961 which were applicable at the time of his employment with the DSC, or by the Pension Regulations of 2008, which were in vogue at the time of his discharge.
6 Indisputably, at the time when the respondent came to be engaged in DSC post his retirement from the Indian Army, the Pension Regulations of 1961 were in operation. Subsequently, these Regulations came to be superseded and replaced by the Regulations of 2008. Now, there is a different provision in the Pension Regulations of 2008 insofar as entitlement of a person serving in DSC to service element of disability pension is concerned. 4 Regulation 53 has completely changed the position. For comparison, Regulation 179 of the Pension Regulations of 1961 and Regulation 53 of the Pension Regulations of 2008 are set out below:
179 Disability at the time of retirement/discharge (1)An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.
(2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease. 53 Disability element for disability at the time of discharge/retirement
(a) An individual released/retired/discharged on completion of term of engagement or on completion of service limits or on attaining the prescribed age (irrespective of his period of engagement), if found suffering from a disability attributable to or aggravated by military service and so recorded by Release Medical Board, may be granted disability element in addition to service pension or service gratuity from the date of retirement/discharge, if the accepted degree of disability is assessed at 20 percent or more.
(b) The disability element for 100% disability shall be at the rate laid down in Regulation 98 (b) below. For disabilities less than 100% but not less than 20%, the above rates shall be proportionately reduced. Provisions contained in Regulation 98(c) shall not be applicable for computing disability element. 5 7 Having noticed the difference between the aforementioned two Regulations and regard being had to the rival contentions raised by learned counsel appearing on both the sides, we are of the considered opinion that the matter needs to be remanded back to the AFT for fresh consideration Ordered accordingly. While considering the matter afresh, the AFT shall specifically deal with and determine the aforementioned two questions. 8 Apart from the aforesaid two questions, the parties shall be at liberty to raise any additional ground(s) or plea(s) for consideration by the AFT and, if necessary, file specific pleadings in this regard. To enable the AFT to consider and decide the matter afresh, the judgment passed by it is set aside. Let the OA be taken up for reconsideration by the AFT on 30.04.2025.
(PUNEET GUPTA) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
02.04.2025
Sanjeev
Whether the order is reportable: Yes/No