Jammu & Kashmir High Court
Union Of India Through Its Secretary To ... vs No 1288O322Ww Ex Rlfle Man Shamsher ... on 30 August, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode From Srinagar)
WP(C) No. 436/2024 Reserved on : 06.06.2025
c/w Pronounced on: 30.08.2025
WP(C) No. 1705/2024
WP(C) No. 2787/2024
WP(C) No. 2793/2024
WP(C) No. 946/2025
1.Union of India through its secretary to Government of India,
Ministry of Defence, South Block,
New Delhl-110011.
2. Additional Director General Personnel Services, Adjutant General's Branch,
Integrated HQ of Ministry of Defence (army),
DHQ PO, New Delhi-l10 OO
3.Principal Controller of Defence Accounts (Pensions), Draupadi Ghat
Allahabad, Uttar Paradesh-211014
.....Petitioner/Appellant(s)
Through:- Mr. Vishal Sharma, DSGI
Mr. Rohan Nanda, CGSC
V/s
No 1288O322WW Ex Rlfle Man Shamsher Singh'
S/o Shri Charan Singh,
R/o Village Sukhdevpura, Post Office-Sajni More'
Tehsil-Hiranagar, District' Kathua, Jammu and Kashmir
.....Respondent(s)
Through:- Mr. S. K. Saini, Advocate
Mr. P. L. Sharma, Advocate
Mr. Amit Singh, Advocate
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
HON'BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
JUDGMENT
Per :Sindhu Sharma-J
1. The facts of all the petitions are similar, and the prayers made thereof are also similar, therefore, all the petitions are being decided by this common judgment.
2. WP(C) No. 436 of 2024 has been filed seeking to quash the order dated 26th May 2022 passed by the Armed Forces Tribunal, Srinagar Bench, Page 2 of 11 Jammu (hereinafter referred to as 'AFT') in O. A. No. 689 of 2018 titled Ex Rifleman Shamsher Singh vs. Union of India and Others, whereby the respondent was granted disability pension from the date succeeding his discharge, i.e., 22.03.2016.
3. The factual matrix of the case is that the respondent was initially enrolled in the Army (Dogra Regiment) on 06.04.1979 and was discharged from service on 30.04.2003, for which service pension was granted. Subsequently, the respondent was enrolled in the 129 Infantry Battalion (Territorial Army Ecological) on 11.02.2006 and was invalided out of service on 21.03.2016. The respondent was examined by the duly constituted Invaliding Medical Board (hereinafter 'IMB'), which diagnosed him with "Osteoarthritis (Right)" and assessed disablement at 20% for life, holding the disability to be aggravated by military service.
4. The disability pension claim of the respondent was rejected on the ground that the ex-serviceman enrolled in Territorial Army Ecological are not entitled to pensionary benefit for service rendered in the unit of Territorial Army Ecological.
5. Aggrieved of the order of rejection, the respondent preferred OA No. 689 of 2018 before the Armed Forces Tribunal, Srinagar Bench at Jammu (hereinafter referred to as 'Tribunal') for grant of disability pension to him w.e.f.. 22.03.2016 along with benefit of rounding off. This OA was allowed by the Tribunal and disability pension along with rounding off was granted to the respondent. By this petition, the petitioners have, thus, challenged the impugned order dated 06.03.2016 granting disability pension. WP(C) 1705/2024 Page 3 of 11
6. The petitioners seek to challenge the Order dated 23.02.2023 passed by the Armed Forces Tribunal, Srinagar Bench at Jammu in O.A. No. 643/2019 titled Ex Rifleman Romesh Lal vs. Union of India & Ors., whereby the orders dated 30.10.2018 and 02.07.2019 rejecting the respondent's claim for disability pension, have been set aside and further the respondent has been held entitled to disability element of pension at the rate of 30% for life, which has been directed to be rounded off to 50% for life, with effect from the date following his discharge, i.e., 01.03.2019.
7. The respondent was initially enrolled in the Indian Army (Grenadiers Regiment) on 20.07.1987 and was discharged from regular service on 31.07.2004. He was granted service pension for the service rendered in the Grenadiers Regiment. Subsequently, he was re-enrolled in the 129 Infantry Battalion (Territorial Army - Ecological) on 02.02.2006 in Medical Category SHAPE-1 and was invalided out of service on 28.02.2019 under Rule 14(b)(iv) of the Territorial Army Regulations, 1948 (Revised Edition). Prior to discharge, the respondent appeared before the Release Medical Board (RMB) held at 171 Military Hospital, which was approved on 07.02.2019. The RMB assessed the respondent's disability, namely Hypertrophic Cardiomyopathy (Non-Obstructive), at 30% for life and opined that the said disability was aggravated by military service.
8. In the present case, although the respondent's disability, Hypertrophic Cardiomyopathy (Non-Obstructive), was assessed at 30% for life and was conceded as aggravated by military service as per the RMB findings but disability pension was denied only on the ground that ex- servicemen enrolled in Territory Army (Ecological) are not entitled to any benefit.
Page 4 of 11WP(C) No. 2787/2024.
9. In this petition, petitioners challenge the order dated 22.09.2022 passed by Hon'ble Armed Forces Tribunal, Srinagar Bench at Jammu (for short 'AFT' in OA 679/2018 titled No 1288O24OF Ex Rfn Karan Singh vs. Union of India & Ors, whereby respondent has been held entitled to disability pension from the next date to his discharge i.e.,13.08.2016.
10. The respondent was initially, enrolled in the Army (Punjab Regiment) on 28.07.1980 and was discharged from service on 31.02.I997. He has been granted the service pension for the same. He was re-enrolled in 129 Infantry Battalion (Territorial Army) Ecological on 09.11.1999 in medical category SHAPE-1 and was invalided out from service on 12.08.2016. The respondent was brought before the duly constituted Invaliding Medical Board, wherein he was found to be suffering from "PRIMARY HYPERTENSION & DYSLIPIDEMIA) and his disability was assessed @ 30% (composite) for life, and the disability No.1 i.e. PRIMARY HYPERTENSION held to be aggravated by military service and disability No.(ii) DYSLIPIDEMIA held to be neither attributable to nor aggravated by military, service.
11. The claim of the respondent for grant of disability pension was rejected on the sole ground that the ex-serviceman of the Territorial Army (Ecological) Unit are not entitled to any pensionary benefit as per policy.
12. The AFT observed that no doubt as per the expert opinion, the disability at (ii) DYSLIPIDEMIA is neither attributed to nor aggravated by Military service, however, without recording any reason there for. As a matter of fact, under the Entitlement Rules the Medical Board an expert body is required to record reasons as to how a particular disability while in Page 5 of 11 service and why it could not be detected at the time of recruitment of the solider concerned in the Army. The AFT while relying upon the judgment of Hon'ble Supreme Court in case titled Dharamvir Singh vs. Union of India and others reported as (2013) 7 SCC 316 and Regulation 173 and also relying upon the law laid down in Pani Ram Vs. Union of India & ors., held the respondent entitled to disability pension from the date of his discharge.
WP(C) 2793/2024
13. In this petition, petitioners challenge the Order dated 01.05.2023 passed in case titled No. 12880303L Ex. Rfn. Puran Chand vs. Union of India & ors. by Armed Forces Tribunal, Srinagar Bench at Jammu ( for short 'AFT') in OA 678/2018, whereby the respondent has been held entitled to disability element @30%for life rounded off to 50% for life from the next date of his discharge from the Territorial Army.
14. The respondent was enrolled in the Indian Army (22 Punjab Regiment) on 20.07.1979 and discharged on 31.07.2003.Thereafter, he was re-enrolled in 129 infantry Battalion(Territorial Army) Ecological on 01.07.2005 and discharged on 29.04.2016 in low medical category. At the time of discharge from service, the Release Medical Board (RMB) held at 171 Military Hospital on 29.02.2016 assessed his disability 'PRIMARY HYPERTENSION (l-10)' @ 30% for life and opined the disability to be aggravated by service. The disability claim of the respondent was, however, rejected by the Competent Authority vide letter dated 08.06.2017 on the ground that the Ex-Servicemen enrolled in infantry Battalion (TA) (Ecological) are not entitled to any pensionary benefits for service rendered in the Unit of TA (Eco) as per policy on the subject as such personnel are Page 6 of 11 already getting service pension from their previous service rendered in Regular Army.
15. In this case, the ATF observed that the disability of the respondent has been held as aggravated by military service by the Release Medical Board (RMB). The RMB assessed the disability @ 30% for life. However, the opinion of the RMB has been overruled by Competent Authority on the ground that the Ex-Servicemen enrolled in infantry Battalion (TA) (Ecological) are not entitled to any pensionary benefits for service rendered in the Unit of TA (Eco) as per policy on the subject. The issue of sanctity of the opinion of a Release Medical Board and its overruling by a higher formation is no more res integra. The Hon'ble Supreme Court in the case of Ex. Sapper Mohinder Singh vs. Union of lndia & Others, in Civil Appeal No'164 of 1993, decided on 14.01.1993, has made it clear that without physical medical examination of a patient, a higher formation cannot overrule the opinion of a Medical Board.
16. The ATF while relying upon the decision of Hon'ble Supreme Court in the case of Union of lndia and Ors vs Ram Avtar & ors (civil Appeal No418 of 2012 decided on 10th December 2014) as well as Government of lndia, Ministry of Defence letter 17(01)/2017(01)/D(Pen/Policy)(Pen/Policy) dated 23.01.2018, the benefit of rounding off of disability element of disability pension @ 3O% for life to be rounded off to 50o/o for life was extended to the respondent from the next date of his discharge. WP(C) 946/2025
17. In the petition, order dated 15.12.2022 passed by Armed Forces Tribunal, Srinagar Bench at Jammu (for short 'ATF') in OA567 /2018 titled No12880235H Ex Rfn Kewal Kishan versus Union of India & Page 7 of 11 Ors is sought to be challenged by the petitioners, whereby the petitioners have been directed to grant disability pension to the respondent from the day next to the date of his discharge i.e., 3l-05.2015.
18. In this case respondent was initially enrolled in the Army (JAK LI) on 19.03.1981 and discharged on 31.03.1998. He was granted service pension for the service he rendered in the Army. He was re-enrolled in 129 Infantry Battalion (Territorial Army) Ecological on 04.06.1999 in medical category shape-I and opted not to count his former service towards Territorial Army. He was downgraded to low, medical category and was invalided out from service on 31.05.2015. Before discharge, the respondent was brought before the duly constituted invaliding Medical Board (for short IMB) wherein he was found to be suffering front disability i.e.(i) DIAIETBS MIELLITUS TYPE-II in March 2015 and Corronary Artery Disease 'STEIWMI (TNK+)LCS-NON OBSUUCTIVE PLAQUE on 16.12.2015. Disability No. (i) was assessed as 20% and aggravated by military service and No.(ii) Coronary Artery Disease STEIWMI (TNK+) LCS-NON'' OBSRUCTIVE PLAQUE was as 30% however, neither attributable to nor aggravated by military service. The composite disablement of which was assessed @40% for life. The claim of the respondent for the grant of disability pension though was processed to the competent authority for adjudication, however, rejected on the sole ground that the ex-servicemen enrolled in Territorial Army (Ecological) Units are not entitled to any pensionary benefits as per the Policy.
19. The Tribunal while relying upon Regulation 173 Regulation 292 of the Pension Regulation for the Army, 1961 (Part-1) and in view of the ratio of the judgment of Supreme Court in case titled Dharamvir Singh vs. Page 8 of 11 Union of India and others (2013) 7 SCC 316 has held the respondent entitled to disability pension.
20. In all these cases, the respondents were initially enrolled in the Indian Army and, after being discharged therefrom, were re-enrolled in the 129 Infantry Battalion (Territorial Army) Ecological. The disability pension claim of the respondents was rejected on the ground that the ex-servicemen enrolled in Territorial Army Ecological are not entitled to pensionary benefit for service rendered in the unit of (Territorial Army) Ecological.
21. The contention of the petitioners in these cases is that raising of 129 Infantry Battalion (Territorial Army) Ecological is a joint Venture of Ministry of Environment and Forests (MOEF), Ministry of Defence and concerned State Government. The initiation of raising and establishment and its rules of non- maintenance is borne by the ministry of Environment and Forest and Project cost by State. The Ministry of Defence carries the responsibility of raising and organizing the ECO task Force and expenditure involved is meet by Defence service.
22. In support of their contention, the petitioners have relied upon the following communications and policy letters, which clarify that ex- servicemen re-enrolled in Ecological units of the Territorial Army are not entitled to enhanced pensionary benefits:
a) Government of India letter No. 2(1)/92/D(GS-VI)(3) dated 30.12.1992;
b) CGDA, New Delhi letter No. A/II/13401/Ecological (TA) dated 04.11.1993;
c) Additional Directorate General, TA, Army HQ letter No. 38974/GS/TA-3(a) dated 06.05.1994;
d) Additional Directorate General, TA, Army HQ letter dated 27.08.2003.
Additional Directorate General, TA letter No. 38974/GS/TA-3 dated 27.06.2006;
e) Additional Directorate General, TA letter No. 38974/Eco/GS/TA-3 dated 05.09.2006;
f) Additional Directorate General, TA letter No. 34456/Dis/GS/TA-3 dated 08.06.2017;
g) Government of India, Ministry of Defence letter No. PC to MF 68640/Eco/Gen/TA-2/513/US/D(GS-III)/2018 dated 30.10.2018. Page 9 of 11
23. The Tribunal has rightly held that the ETF was established as an additional unit for the 129 Infantry Battalion of the Territorial Army. The Territorial Army Act, 1948 provides application of Army Act (Section 9-1) that every enrolled person in territorial army shall be subject to the provisions of Army Act and the rules and regulations made thereunder equivalent to the same rank in (Regular Army) It is not in dispute that other officers or enrolled personnel serving in the Territorial Army are entitled to disability pension under Regulation 173, read with Regulation 292 of the Pension Regulations for the Army, 1961.
24. Regulation 292 of the Pension Regulation for Army, 1961 (Part-I) reads as under:-
"292 The grant of pensionary awards to the members of the territorial Army shall be governed by the same general regulations as are applicable to the corresponding personnel of the Army except where they are inconsistent with the provisions of regulations in this Chapter."
25. From a bare perusal of the Regulation aforesaid, it is clear that Members of the Territorial Army will receive pension and related benefits under the same rules as regular Army personnel, unless those rules conflict with the specific Territorial Army regulations in this chapter. As such, the petitioners are not justified in claiming that a solider enrolled in TA (Ecological) is not entitled to the disability pension.
26. Regulation 173 of the Pension Regulations for Army, 1961 (Part I), reads as under:-
"Regulation 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over."Page 10 of 11
27. Regulation 173 provides that disability pension in normal course is to be granted to an individual: (i) who is invalided out of service on account of a disability which is attributable to or aggravated by military service, and (ii) who is assessed at 20% or over disability unless otherwise it is specifically provided.
28. Further, the AFT while granting disability pension to the respondent has rightly observed that law on this point is no longer res-integra as the Hon'ble Supreme Court in case titled Pani Ram vs. Union of India and others, reported as 2021 (19) SCC 234 has held that Territorial Army members (including ETF) are governed by the same pension rules as regular Army personnel unless explicitly exempted, no exception appeared in the statutory scheme and that an individual invalided from service due to a disability attributable to or aggravated by military service (non-battle casualty) and assessed at 20% or more is entitled to disability pension. The Hon'ble Supreme Court has observed as under:-
"18. The perusal thereof will reveal that an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in nonbattle casualty and is assessed 20% or more, would be entitled to disability pension. The respondents are not in a position to point out any rules or regulations, which can be said to be inconsistent with Regulation No. 292 or 173, neither has any other regulation been pointed out, which deals with the terms and conditions of service of ETF.
19. The communication of the Union of India dated 31st March 2008, vide which the President of India has granted sanction, itself reveals that the sanction is for raising two additional companies for 130 Infantry Battalion (Territorial Army) Ecological.
20. It is thus clear that the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. It is not in dispute that the other officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961. When the appellant is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), we see no reason as to why the appellant was denied the disability pension. Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence.Page 11 of 11
21. In case of conflict between what is stated in internal communication between the two organs of the State and the Statutory Rules and Regulations, it is needless to state that the Statutory Rules and Regulations would prevail. In that view of the matter, we find that AFT was not justified in rejecting the claim of the appellant.
22. The respondents have heavily relied on the document dated 30th August 2007, titled "Certificate". No doubt that the said document is signed by the appellant, wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in this force. Firstly, we find that the said document deals with enhanced pension and not disability pension. As already discussed hereinabove, a conjoint reading of Section 9 of the Territorial Army Act, 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army, 1961, would show that a member of the Territorial Army would be entitled to disability pension. In any case, in this respect, even accepting that the appellant has signed such a document, it will be relevant to refer to the following observations of this Court in the case of Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another1 :
"89. ......We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws."
27. In the aforesaid facts and circumstances of the case, we are of the opinion that no exception can be taken to the decision of the AFT to grant disability pension to the respondents. These petitions are without any merit and accordingly, dismissed.
28. Registry to place a copy of this order on each file.
(Shahzad Azeem) (Sindhu Sharma)
Judge Judge
Jammu:
30.08.2025
Bir
Whether approved for reporting? Yes/No