Mr. Amrit Koul, Ms. Muskaan Dutta, Mr. Prahil Sharma and Mr. Aditya Chawla, Advs v. UNION OF INDIA AND ORS

Judgment

1. The petitioner was enrolled in the Indian Air Force1 as an Airman on 16 July 1996. He was discharged from the service in the Air Force on 25 January 2007. 1 “the IAF”, hereinafter Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37

2. While the petitioner was serving with the IAF, Bharat Heavy Electricals Limited2 issued an advertisement inviting applications for the post of Supervisor Trainee in its organization. The petitioner applied, following a No Objection Certificate issued by the IAF on 25 May 2006 permitting the petitioner to appear in the interview.

3. On the petitioner succeeding in the selection process, the BHEL issued an Offer of Appointment to the petitioner on 18 December

4. Following this, on 18 January 2007, the IAF issued a discharge order, discharging the petitioner from its service with permission to join a civil post with the BHEL.

5. By then, the petitioner had completed ten years of service in the IAF. The petitioner joined the services of the BHEL on 4 May 2007 and is presently working with the BHEL, Tiruchirappalli, Tamil Nadu.

6. On 28 January 2022, the petitioner applied for being issue an Ex Service Man3 Identity Card with the Zilla Sainik Board4, Namakkal, which is a subordinate office of the Kendriya Sainik Board5.

7. For this, he got himself registered at the ZSB, Tiruchirappalli. On 28 January 2022 itself the petitioner approached the ZSB for 2 “BHEL”, hereinafter 3 “ESM”, hereinafter 4 “ZSB”, hereinafter 5 “KSB”, hereinafter Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 getting himself registered as an ESM and for issuance of an ESM Identity Card.

8. In view of the aforesaid application, the Regional Sainik Board6 Tamil Nadu wrote to the Secretary, KSB on 30 March 2022, seeking a clarification as to whether a person who was discharged from the service of the IAF on being selected to a civil post, and was sanctioned pro-rata pension, was entitled to be regarded an ESM.

9. We may note that the entitlement, or otherwise, of a person to be regarded as an ESM is governed by provisions of an Office Memorandum7 dated 4 October 2012 issued by the Department of Personnel & Training8.

10. In view of the limited nature of the order we are passing today, we may eschew reference to any further factual details and may proceed directly to the following communication dated 11 April 2022, issued by the KSB, which forms the fulcrum of challenge in the present writ petition: “Tele : 2618008 Fax 26192362 Kendriya Sainik Board E-mail id –[email protected] Ministry of Defence Government of India West Block-IV,Wing –VII R K Puram New Delhi – 110 068 No. 024/Policy/Tamil Nadu/Vol-1 11 April 22 6 “RSB”, hereinafter 7 “OM”, hereinafter 8 “DOPT”, hereinafter Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 Office of the Joint Director Dept. Of Sainik Welfare & Resettlement Bengaluru Urban, No.58, Cariappa Bhavan, Fd. Marshal Cariappa Road Bengaluru – 560 025 EX-SERVICEMEN STATUS IN RESPECT OF EX. NO.741910- G EX CPL S RAJAGOPAL Refer to your letter No.SWR/BNG(U)/ESM/Status/2022

1. dated 05 Mar 2022. Eligibility of Ex-serviceman status will be governed by 2. DoPT Notification dated 04 Oct 2012, an Ex-serviceman means a person : - (a) Who has served in any rank whether as a combatant or non combatant in the Regular Army, Navy and Air Force of the Indian Union, and (b) Who either has been retired or relieved or discharged from such service whether at his own request or being relieved by the employer after earning his or her pension; or (c) who has been relieved from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medical or other disability pension; or who has been released from such service as a result (d) of reduction of establishment; or (e) Who has been released from such service after completing the specific period of engagement, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency and has been given a gratuity, or Gallantry award winners of the Armed Forces (f) including persons of Territorial Army; or Ex-recruits boarded out or relieved on medical (g) ground and granted medical disability pension.

3. There is no separate rule position / DoPT orders for issue of Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 ESM identity card those are having pro rata pension holders. ESM identity card only to be issued by RSB/ZSBs on 4. production of PPO (not Pro Rata PPO) and those are having ESM status. Whereas ascertain from individual documents is having pro rata pension (without completion of full terms and conditions of tenure). Hence, he is not eligible for issue of ESM identity card.

5. Petitioner may be informed accordingly. (Shikher Chandra) Capt. (IN) Director (Policy)”

11. Aggrieved by the aforesaid communication, the petitioner has approached this Court by means of the present writ petition, predicated on Article 226 of the Constitution of India. The prayer clause in this writ petition reads thus: “In view of the facts and circumstances mentioned hereinabove, it is most respectfully prayed that this Hon'ble Court may be pleased to: i. Issue Writ of Certiorari for quashing of letter dated 11.04.2022 whereby the Respondents rejected the request of the Petitioner for issuance of ex-serviceman identity card; and Issue Writ of Mandamus to direct the Respondent to ii. direct the Respondents to treat the Petitioner as an ex- serviceman in accordance to the circular dated 04.10.2012 published by the Ministry of Personnel, public grievances and pensions and to treat the pro rata pension payment order dated 21.10.2021 of the Petitioner as being eligible for issuance of ex-serviceman identity card; and iii. Pass any such orders as the Hon'ble Court may deem fit in the light of above mentioned facts and circumstances of the case.” Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37

12. The respondent, in its counter affidavit filed by way of response to the present writ petition, has advanced a preliminary objection that this writ petition would not lie before this Court and that the petitioner would appropriately have to approach the Armed Forces Tribunal9, in the matter.

13. The said objection was orally urged by Ms. Aakanksha Kaul, learned Counsel for the respondents, on 18 November 2024, when a Co-ordinate Bench of this Court passed the following order: “1. The learned counsel for the respondents has raised a preliminary objection against the maintainability of the present petition contending that the remedy of the petitioner would be to approach the learned Armed Forces Tribunal. She contends that the petitioner is challenging the Order dated 11.04.2022 issued by the KSB, Ministry of Defence, by which it has been clarified that an ESM identity card can be issued by the Regional Sainik Board and Zonal Sainik Board only on the production of the Pension Payment Order and not for pro-rata PPO. The petitioner, who is also drawing pro-rata pension, is, therefore, not eligible for the ex- servicemen identity card. As the petitioner is challenging the order dated 11.04.2022, the dispute raised by the petitioner would be squarely covered by the definition of ‘service matters’ as defined in Section 3(o) of the Armed Forces Tribunal Act, 2007.

2. The learned counsel for the petitioner prays for time to make submission on this objection.

3. At request, re-list on 13th December, 2024.”

14. We have, therefore, heard Mr. Ankur Chhibber, learned Counsel for the petitioner, and Ms. Aakanksha Kaul, learned Counsel for the respondents, on the aforesaid preliminary objection raised by 9 “the Tribunal”, hereinafter Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 the respondent, at length.

15. Mr. Chhibber submits that the Tribunal would not have jurisdiction to deal with the present matter, for two reasons.

16. The first is that the claim of the petitioner is predicated on an OM issued by the DOPT, which required the DOPT to be impleaded as a party and the Tribunal would not have jurisdiction over the DOPT.

17. The second is that the Tribunal would also not have jurisdiction over the KSB, which has passed the impugned order dated 11 April

18. Mr. Chhibber has taken us, in this connection, through Section 3 (o)10 of the Armed Forces Tribunal Act, 200711. He has also placed reliance on judgment of the Supreme Court in UOI v Colonel G.S. 10 (o) “service matters”, in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950), mean all matters relating to the conditions of their service and shall include— remuneration (including allowances), pension and other retirement benefits; tenure, (i) (ii) including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions; (iii) (iv) summary disposal and trials where the punishment of dismissal is awarded; any other matter, whatsoever, but shall not include matters relating to— (i) order issued under Section 18 of the Army Act, 1950 (46 of 1950), sub-section (1) of Section 15 of the Navy Act, 1957 (62 of 1957) and Section 18 of the Air Force Act, 1950 (45 of 1950); and (ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950); (iii) (iv) imprisonment for more than three months; leave of any kind; summary court martial except where the punishment is of dismissal or 11 “the AFT Act”, hereinafter Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 Grewal12 as well as the judgment of the Full Bench of the Tribunal in Lt Gen (R) S.S. Dahiya v UOI13.

19. Ms. Kaul, on the other hand, submits that the Tribunal would be well within its jurisdiction in deciding the present lis and also submits that the Tribunal has passed orders issuing directions to the KSB and that, therefore, it is not as though the KSB is entirely outside the jurisdiction of the Tribunal.

20. She has drawn our attention to order dated 9 April 2018 passed by the Principal Bench of the Armed Forces Tribunal in OA 1273/201714 and order dated 7 September 2015 passed by the Kochi Bench of the Armed Forces Tribunal in OA 165/201415.

21. We have considered submissions of learned Counsel for both sides and perused the relevant statutory provisions and the orders which have been cited at the Bar.

22. The relief sought by the petitioner was after he had retired from the services of the IAF. As such, the case would, if at all, be covered by Section 2 (2) of the AFT Act, which reads thus: “(2) This Act shall also apply to retired personnel subject to the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950), including their dependants, heirs and successors, in so far as it relates to their 12 (2014) 7 SCC 303 13 Judgment dated 24 July 2015 in OA 483/2013 14 Major Harpal Singh Virk (Retd.) v UOI 15 T Selvaraj v UOI Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 service matters.”

23. Section 2 (2) of the AFT Act clearly covers all retired personnel subject to the Army Act, the Navy Act or the Air Force Act as well as their dependents, heirs and successors insofar as the dispute relates to their service matters.

24. There is no dispute about the fact that the petitioner falls within the definition of “retired personnel subject to the Air Force Act, 1950”. The controversy, therefore, narrows down to whether the claim of the petitioner can be treated as a “service matter” for the purposes of Section 2 (2) of the AFT Act.

25. When one reads the definition of “service matter”, one finds that it is clothed in the “means … and includes” format. It is well settled that, in such definitions, the inclusion, in the latter part of such definition clauses, of specific examples or circumstances, is intended to broaden the definition beyond that which the earlier “means” part connotes16 and cannot, therefore, in any case restrict the scope of the “means” part of the clause. This is distinct from a situation in which the definition uses the expression “means and includes”, in which case Courts have, on occasion, treated the definition as exhaustive, rather than expansive, in nature.17

26. Applying the aforesaid principle, all matters relating to conditions of service of persons subject to the Air Force Act would be 16 Indian Handicrafts Emporium v UOI, (2003) 7 SCC 589 (para 27) Signature Not Verified W.P.(C) 5765/2023 Digitally Signed By:AJIT KUMAR Signing Date:21.03.2025 14:01:37 covered by Section 3(o).

27. The expression “conditions of service” stands defined by the Supreme Court in State of M.P. v Shardul Singh18 as including “all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension, etc”. Thus, matters, and claims, relatable to the service rendered by the employee concerned, would also be included within the ambit of the expression “conditions of service” even after he has retired from service.

28. Inasmuch as the claim of the petitioner, for being accorded ESM status is relatable to the service rendered by him in the IAF, the dispute would clearly fall within the ambit of the expression “all matters relating to the conditions of service” and would, therefore, constitute a “service matter” within the meaning of the Section 3(o) of the AFT Act and, mutatis mutandis, Section 2(2) thereof.

29. Adverting, now, to the decision in G.S. Grewal, cited by Mr Chhibber, we find that the Supreme Court has not, in the said case, declared the law relating to the aspect of jurisdiction of the Tribunal. We may reproduce for this purpose, para 26 of the report in that case: “26. No doubt, it is open to Mr Bhati to refer to the statutory provisions in the AFT Act or even the Army Act in support of his submission. But many other documents of which the learned counsel is relying upon were not part of the record before the