Jammu & Kashmir High Court
Manzoor Ahmed Peer vs Union Of India And Others on 2 December, 2021
Bench: Dhiraj Singh Thakur, Mohan Lal
Sr. No. 25
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP (C) No. 641/2021
Manzoor Ahmed Peer .....Appellant(s)/Petitioner(s)
Through: Mr. Arjun Bhatia, Advocate.
Vs
Union of India and others ..... Respondent(s)
Through: Mr. Vishal Sharma, ASGI
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
02.12.2021 (OPEN COURT) Per: Thakur-J
1. In the present petition, the petitioner challenges the order dated 19.12.2017 passed by the Armed Forces Tribunal, Regional Bench, Srinagar at Jammu (for short, Tribunal) to the extent that the Tribunal restricted the right of the petitioner to receive disability pension w.e.f., 25.6.2014 corresponding to the date of the judgment passed by the Apex Court in Sukhvinder Singh vs. Union of India & ors, 2014 (8) Scale 619.
2. Briefly stated the material facts are as under:
3. The petitioner was boarded out of service on 4.6.2008 on medical grounds. The disability of the petitioner at the relevant time was assessed between 15 to 19 percent. Disability pension was refused to 2 WP (C) No. 641/2021 the petitioner on the ground that the minimum disability ought to be 20 percent or above in terms of Regulation 173 of the Pension Regulations for the Army, 1961.
4. Being aggrieved of the refusal on the part of the authority to grant disability pension, the petitioner approached the High Court, which later on transferred the petition to the Armed Forces Tribunal, which came to be decided on 19.12.2017. The Tribunal placed reliance upon the Apex court judgment in Sukhvinder Singh's case (supra) and allowed the petition partially. It denied the benefit of disability pension to the petitioner to a period before the passing of the judgment dated 25.6.2014. In Sukhvinder Singh's case, the Apex Court held that whenever a member of the Armed Forces is invalided out of service, it has to be presumed that his disability was found to be above 20 percent and further that the disability leading to invaliding out of service would attract the grant of 50 percent disability pension.
5. Insofar as the first proposition is concerned, despite the fact that the disability of the petitioner was assessed at less than 20 percent, the petitioner was given the benefit of disability pension by the Tribunal following the judgment of the Apex Court rendered in Sukhvinder Singh's case (supra). However, we feel that the benefit could not have been restricted to a period commencing from the date of the judgment by the Apex Court in Sukhvinder Singh's case and that the benefit ought to have been granted from the date the petitioner stood boarded out on medical grounds. Even in Sukhvinder Singh's case, the petitioner was boarded out of service on medical grounds with disability 3 WP (C) No. 641/2021 less than 20 percent in the year 2004 and relief had been granted to the petitioner without any time limitation.
6. Counsel for the respondents, Mr. Vishal Sharma, learned ASGI, urged that no relief can be granted to the petitioner in the present proceedings inasmuch as the remedy of appeal provided under Section 30 of the Armed Forces Tribunal Act, 2007, ought to have been availed by the petitioner being an alternate and an equally efficacious remedy.
7. The issue as to whether in the light of an alternate remedy, the courts can exercise writ jurisdiction is no longer res integra. In Balkrishna Ram vs. Union of India and Anr, 2020 AIR (SC) 341, the Apex Court clearly held that existence of an alternate remedy does not necessarily oust the jurisdiction of the High Court although such a jurisdiction should not be exercised when there is an alternate remedy available as was held in UOI vs. T.R. Varma AIR 1957 SC 882. It was held that the rule of alternate remedy is a rule of discretion and not a rule of jurisdiction and that merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. It was also held that there may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. What was held by the Apex Court in paragraph 14 of the Balkrishna Ram's case, which applies more particularly in the case of the petitioner, who was a rifleman, is relevant and reproduced thus:
"...........One must also remember that the alternative remedy must be efficacious and in 5 Union of India vs. T.R. Varma AIR 1957 SC 882 case of a Non Commissioned Officer (NCO), or a Junior 4 WP (C) No. 641/2021 Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra)."
8. Considering the degree of difficulty, which the petitioner would face both on the health as also economic front and considering the stark reality that approaching the Apex Court and contesting a case, does involve a lot of expense, we deem it appropriate to exercise our writ jurisdiction in the peculiar facts and circumstances of the case despite the presence of an alternate remedy by way of an appeal, which is available under Section 30 of the Armed Forces Tribunal Act, 2007.
9. Be that as it may, we hold the petitioner entitled to the benefit of disability pension w.e.f. the date of his discharge on 4.6.2008 and to that limited extent, the judgment and order impugned passed by the Tribunal would stand modified.
10. Disposed of accordingly along with connected application(s).
(Mohan Lal ) (Dhiraj Singh Thakur)
Judge Judge
Jammu
02.12.2021
Naresh