Ex No. 14460726 W Gunner K V Sankara ... vs Union Of India on 29 May, 2025

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Kerala High Court

Ex No. 14460726 W Gunner K V Sankara ... vs Union Of India on 29 May, 2025

This writ petition is filed under Article 226 of the Constitution of India by the applicant in O.A. No.50 of 2022 on the file of the Armed Forces Tribunal, Regional Bench, Kochi ('the Tribunal' for short), challenging the order dated 25.09.2023, whereby the claim of the petitioner for invalid pension was dismissed.

2. The facts in brief which led to the filing of this writ petition are as follows: The petitioner was enrolled in the Indian Army on 15.06.1979 and was invalided out of service on 21.03.1984 due to 'idiopathic epilepsy 345' at 20% for life. The petitioner approached this Court for disability pension by filing O.P. No.9005 of 2003, and it was transferred to the Tribunal and got renumbered as TA No.10 of 2009. But the same was dismissed vide judgment dated 31.03.2011. Subsequently, the petitioner preferred OP(AFT) No.2875 of 2011 before this Court and it was dismissed for want of jurisdiction. The civil appeal preferred by the petitioner before the Hon'ble Supreme Court vide C.A. Diary No.2102 of 2019, was also dismissed vide order dated 05.04.2019. According to the 3 WP(C)No.38259 of 2024 2025:KER:38072 petitioner, he was ineligible for invalid pension at the time of his invalidment due to the stipulation of 10 years minimum service period in Regulation 198 of the Pension Regulations for the Army, 1961, as existed at that time. But subsequently, the requirement of 10 years service period was relaxed vide Annexure A1, GOI (MOD) letter No.12(06)/2019/D (Pen) /Pol) dated 16.07.2020 issued by the Government in view of the judgment of the Apex Court in Union of India v. P.A Thomas (SLP (C)No.20339 of 2011). Citing the said change in the Regulation, the petitioner approached the Tribunal with the above O.A. contending that in view of the judgment of the Apex Court in D.S Nakara and others v. Union of India [(1983) 1 SCC 305] the cut-off date for granting invalid pension fixed as 04.01.2019 in Annexure A1 is illegal and arbitrary. However, the Tribunal dismissed the O.A.

3. Heard Sri.Ratheesh B, the learned counsel for the petitioner, and Sri. S. Biju, the learned Senior Central Government Counsel for the respondents.

4. The learned counsel for the petitioner would submit that the Armed Forces Tribunal, Principal Bench, New Delhi, granted 4 WP(C)No.38259 of 2024 2025:KER:38072 invalid pension to the members of the Armed Forces invalided out from service before 04.01.2019. In support of his said contention, the learned counsel produced the order dated 03.07.2023 in O.A. No.2148 of 2019, order dated 18.12.2024 in O.A. No.2370 of 2024 and the order dated 06.02.2025 in O.A. No. 476 of 2015 of the Principal Bench of the Armed Forces Tribunal, New Delhi. The learned counsel submitted that the order of the Principal Bench of the Tribunal still holds good and hence the respondents cannot take a different stand in the case of the petitioner.

5. On the other hand, the learned SCGC would submit that the Tribunal has correctly analysed the facts and reached to a right conclusion and no interference is needed by this Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India.

6. The petitioner enrolled in the Indian Army on 15.06.1979 and was invalided out of service on 21.03.1984 due to 'idiopathic epilepsy 345'. At the time of entering service, no disability was noted in his service records. According to the petitioner, while on duty at Karu when he was placing a new ammunition box in the 5 WP(C)No.38259 of 2024 2025:KER:38072 Bunker in the place of an old one, a colleague pulled the old box which was kept at the top and it fell on the head of the petitioner. He claims that it was that incident led to the permanent disability identified by the Medical Board. But according to the respondents, the petitioner is not entitled to invalid pension since a cut-off date of 04.01.2019 was fixed in Annexure A1 order while relaxing the requirements of 10 years service period for granting disability element of pension. Therefore, the issue before us is whether the petitioner who was a member of the Armed Forces, invalided out of service before 04.01.2019, without 10 years of service, is entitled to get invalid pension?

7. Regulations 197 and 198 of Pension regulations for the Army, 1961 read thus:

"197. Invalid pension/gratuity shall be admissible in accordance with the Regulations in this chapter. to

(a) an individual who is invalided out of service on ac-

count of a disability which is neither attributable to nor ag- gravated by service;

(b) an individual who is though invalided out of service on account of a disability which is attributable to or aggra- vated service, but the disability is assessed at less than 20%; and 6 WP(C)No.38259 of 2024 2025:KER:38072

(c) a low medical category individual who is retired/dis- charged from service for lack of alternative employment compatible with his low medical category.

198. The minimum period of qualifying service actually rendered and required for grant of invalid pension is 10 years. For less than 10 years actual qualifying service invalid gratuity shall be admissible."

8. Annexure A1 MoD letter which relaxed the stipulation of minimum 10 years service period reads thus:

"Subject: Provision of Invalid Pension to Armed Forces Personnel before completion of 10 years of qualifying service- Reg.

Sir, Government of India, Ministry of Personnel, Public Grievances & pensions, Department of Pension & Pensioners, Welfare vide their O.M 21/01/2016-P&PW(F) dated 12th February 2019 has provided that a government servant, who retires from service on account of any bodily or mental infirmity which permanently incapacitates him from the service before completing qualifying service of ten years, may also be granted invalid pension subject to certain conditions. The provisions have been based on Government of India, Gazette Notification No. 21/1/2016- P&PW(F) dated 04.01.2019.

2. The Proposal to extend the provisions of Department of Pension & Pensioners Welfare O.M No. 21/01/2016 -

7 WP(C)No.38259 of 2024

2025:KER:38072 P&PW(F) dated 12.02.2019 to Armed Forces personnel has been under consideration of this Ministry. The undersigned is directed to state that invalid Pension would henceforth also be admissible to Armed Forces Personnel with less than 10 years of qualifying service in cases where personnel are invalided out of service on account of any bodily or mental infirmity which is Neither Attributable to Nor Aggravated by Military Service and which permanently incapacitates them from military service as well as civil reemployment.

3. Pension Regulation of the Services will be amended in due course.

4. The provision of this letter shall apply to those Armed Forces Personnel who were/are in service on or after 04.01.2019. The Cases in respect of personnel who were invalided out from service before 04.01.2019 will not be reopened.

5. All other terms and conditions shall remain unchanged."

9. In D.S Nakara [(1983) 1 SCC 305) the Apex Court on considering the issues, whether the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date and whether differential treatment to pensioners related to the date of retirement quo the revised formula for computation of pension attract the element of discrimination liable 8 WP(C)No.38259 of 2024 2025:KER:38072 to be declared unconstitutional as being violative of Art.14, held thus:

"40. If it appears to be undisputable, as it is does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such Classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no national principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to Government servants then those who retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the 9 WP(C)No.38259 of 2024 2025:KER:38072 average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension. One retiring a day earlier will have to be subject to ceiling of Rs. 8,100/- p. a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs. 12,000/- p.a. and average emolument will be computed on the basis of last ten months average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Art.14 is wholly violated in as much as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Art.14".

10. The Armed Forces Tribunal, Principal Bench, New Delhi granted invalid pension to the members of the Armed Forces who 10 WP(C)No.38259 of 2024 2025:KER:38072 were invalided out from service even before 04.01.2019, as evident from the orders in O.A. Nos. 2148 of 2019 and 476 of 2015, produced by the petitioner. In those orders, the Principal Bench of the Tribunal, referred to the order of the Armed Forces Tribunal (Regional Bench), Lucknow in Ex. Recruit. Chhote Lal v. Union of India & Ors. in O.A No.368 of 2021 and noted that in that order, paragraph 4 of Annexure A1 MOD letter dated 16.07.2020 was held as unconstitutional. The Principal Bench relied on the Judgment dated 07.01.2025 of the Division Bench of the High Court of Punjab and Haryana in CWP 28442/2023 in Union of India & Ors. v. No. 8994857B Ex. AC UT Sandeep Kumar & Anr., wherein the cut-off date of 04.01.2019 for grant of invalid pension only to those who 'were/are in service on or after 04.01.2019' vide Annexure A1 MOD letter has been observed to be arbitrary, not being based on any intelligible differentia with no nexus to the objects thereto.

11. The Principal Bench of the Tribunal further relied on the Judgments of Delhi High Court dated 26.11.2024 in W.P.(C) 13577/2024 titled Lt. A K Thappa vs. Union of India and Ors., in 11 WP(C)No.38259 of 2024 2025:KER:38072 the matter of NO 40634Z LT A K THAPA (RELEASED) v. UNION OF INDIA & ORS., arising out of the decision of the Principal Bench of the Tribunal in OA No.2240 of 2019, wherein the decision of the Tribunal, for the grant of invalid pension to the applicant therein, was upheld. Similarly, it was noted by the Principal bench of the Tribunal that vide judgment dated 11.12.2024 of the High Court of Delhi, W.P. (C) 17139/2024, filed by the Union of India, to assail the order dated 07.07.2023 in OA 2240/2019 in Lt. AK Thapa (Released) v. Union of India and Ors. has been dismissed, in view of leave to appeal having been granted by the Tribunal vide order dated 17.05.2024 in OA 1721/2024 with MA No. 34608- 4609/2023 to assail the order dated 07.07.2023 in OA 2240/2019. The Tribunal has also noted that there is no stay granted by the Hon'ble Supreme Court of the operation of the order dated 07.07.2023 in OA 2240/2019 of the Tribunal, in Lt. AK Thapa (Released) (Supra).

12. The respondents have no case that the granting of invalid pension to the Armed Forces Personnel having below 10 years service who were invalided prior to 04.01.2019, by the 12 WP(C)No.38259 of 2024 2025:KER:38072 Armed Forces Tribunal, Principal Bench, and also the judgment of the Delhi High Court in A.K. Thapa (supra) and that of the High Court of Punjab and Haryana in CWP 28442/2023, are reversed or stayed by the Apex Court till date. In such circumstances, we are of the view that the petitioner has made out sufficient ground to accept the contention that even an Armed Forces Personnel invalided before 04.01.2019 without 10 years of service are entitled to invalid pension.

13. As far as payment of arrears of pension is concerned, in Union of India v. Tarsem Singh [(2008) 8 SCC 648] the Apex Court held thus:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative 13 WP(C)No.38259 of 2024 2025:KER:38072 decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition".

[Emphasis supplied]

14. The dictum in Tarsem Singh [(2008) 8 SCC 648] is reiterated by the Apex Court in the order dated 06.08.2024 in Civil Appeal Nos. 1320-1321 of 2019 in the matter of Ex.CPL.Ranganathan Nair v. Union of India & Ors and in the judgment dated 07.05.2025 in Civil Appeal No.998 of 2025 in the matter of Rajumon T.M v. Union of India & Ors.

15. On analysing the submissions made at the Bar and the materials placed on record in the light of the Judgments and 14 WP(C)No.38259 of 2024 2025:KER:38072 provisions referred supra, we are of the view that the petitioner, who is invalided out of service before completing his term of engagement, is entitled to the grant of invalid pension and thus made out sufficient ground to allow the writ petition.

In the result, the writ petition is allowed and the competent among the respondents are directed to issue a PPO granting invalid pension to the petitioner at the rate entitled by him with arrears for a period of three years prior to the filing of the original application before the Tribunal, at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment, failing which the unpaid arrears would carry interest at 7% per annum. The parties are directed to bear their respective costs.

Sd/-

AMIT RAWAL, JUDGE sd/-

sks                                MURALEE KRISHNA S., JUDGE
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WP(C)No.38259 of 2024
                                                     2025:KER:38072

                    APPENDIX OF WP(C) 38259/2024

PETITIONER EXHIBITS

Exhibit P1              TRUE COPY OF O.A NO.50 OF 2022 ALONG WITH

ANNEXURE ON THE FILES OF ARMED FORCE TRIBUNAL REGIONAL BENCH KOCHI.

Exhibit P2 TRUE COPY OF THE REPLY STATEMENT IN OA NO.

50/2022 ON THE FILES OF ARMED FORCE TRIBUNAL REGIONAL BENCH KOCHI.

Exhibit P3 TRUE COPY OF ORDER DATED 25.09.2023 IN OA NO.

50 OF 2022 ON THE FILES OF ARMED FORCE TRIBUNAL REGIONAL BENCH KOCHI

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