Vijay Kumar v. Union of India & Ors.

Judgment

1. This writ petition filed under Article 226 of the Constitution of India by the Union of India and its functionaries is directed against an order dated 27.02.2024, passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu (for short „AFT‟), whereby OA No. 530/2018, titled Vijay Kumar v. Union of India and others, has been dismissed on the ground of limitation.

2. Briefly stated, the facts leading to the filing of this petition are that petitioner was initially enrolled in the Indian Army on 2.11.1969 and discharged on 31.12.1987 in the rank of Spoy, after rendering 18 years of service for which he was granted service pension. Thereafter, he was re- enrolled in 129 Infantry Battalion (Territorial Army) Ecological on 15.06.1988, after rendered 16 years, 11 months and 17 days of embodied service, without any pensionary benefits. The petitioner submitted representations seeking such pensionary benefits, but the respondents rejected hia claim vide order dated 20.11.2017.

3. Feeling aggrieved, the petitioner filed OA No. 530/2018 before the AFT and prayed for quashing of the JAK LI record office letter dated 20.11.2017, whereby his claim for service pension had been rejected. The petitioner also sought a direction to the respondents to grand second pension for having rendered more than 15 years of regular service with 129 Infantry Battalion Territorial Army (ECO).

4. The AFT after considering the record dismissed the Original Application as time-barred, noting that it was filed on 12.10.2018, beyond the statutory limitation period of six months from the date of the final rejection order dated

20.11.2017. The AFT further recorded that no application for condonation of delay had been filed and, therefore, the delay was incapable of being condoned. Consequently, the OA was rejected solely on the ground of limitation, without adjudication on the merits of the petitioner‟s claim for service pension.

Learned counsel for the petitioner submits that there is delay of five months and 22 days in filing the O.A and the same could be condoned by the AFT, as the AFT is vested with sufficient powers to admit an application beyond thesix months limitation when sufficient cause is shown referred to in Section 22 clause (a) and clause (b) of sub-section (1) of the Armed Forces Tribunal Act, 2007.

6. The further contention of learned counsel for the petitioner is that the AFT has not considered the merits of the case at all and dismissed the same on the ground of delay without granting the petitioner any opportunity to explain the delay involved in the case by filing an application which could be filed subsequently. It is stated that at the time of filing the OA, the application for condonation of delay could not be filed due to bonafide inadvertence by the counsel of the petitioner. It is further stated that AFT could have granted the petitioner at least one opportunity to file an application seeking condonation of delay which was not granted and a meritorious case of the petitioner was dismissed in a very harshly and haste manner by passing the order impugned which is arbitrary and non-speaking.

7. Learned counsel for the petitioner further submitted that Para 1 and 2 of policy letter dated 11.06.1985 of the MoD (Army) provides grant of service pension to Territorial Army personnel. He further submitted that grant of service pension to Territorial Army personnel has also been clarified vide policy letter dated 30.10.1987. It was further submitted that Para 5 (2) of the Govt. of India, MoD (Pay/services) letter dated 03.02.1998 also provides for grant of service pension to the Territorial Army personnel.

8. Advancing his arguments, learned counsel for the petitioner further submitted that Para 9 of the Territorial Army Act, 1948 specifically provides that Territorial Army personnel should be treated as Regular Army personnel. It was further submitted that Regulations 182 and 184 of Pension Regulations for the Army-2008 (Part-I) provide that Army personnel should 15 embodied/qualifying service for grant of service pension and accordingly, the petitioner having more than 15 years embodied service, is very much entitled to grant of service pension. It was further submitted that Para 292 of Pension Regulations for the Army-1961 (Part I Chapter V) provides that the grant of pensionary awards to 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.

9. Heard learned counsel for the parties and perused the record.

10. Petitioner being an ex-serviceman was re-enrolled in 129 Infantry Battalion (TA) Ecological on 15.06.988 and he was discharged from service on 31.05.2005 (AN) after embodied service of 16 years, 11 months and 17 days. After discharge from service his representation for grant of pension was denied by the respondents stating that he is in receipt of service pension for the services rendered with SIKHLI Regiment of the Indian Army.

11. The distinctive features of Territorial Army and Regular Army are significant in the present case. As per Army Order 77/1984, the Territorial Army is a part of the regular Indian Army. The role of Territorial Army is to relieve the regular Army from static duties, assist civil administration in dealing with natural calamities and maintenance of essential services in situations where life of the communities is affected or the security of the country is threatened, and to provide assistance to the regular Army as and when required.

12. The petitioner approached the AFT for grant of same service pension, but his Original Application was dismissed only on the ground of limitation.

13. It is well-settled that pensionary benefits constitute a continuing and recurring cause of action the Hon‟ble Supreme Court in case titled Union of India v. Tarsem Singh, (2008) 8 SCC 648) has held that “if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay, as it does not affect the rights of third parties”.

14. The AFT failed to afford even a minimal opportunity to petitioner to file an application for condonation of delay. The AFT ought to have examined the claim on merits rather than non-suiting the petitioner on a technical ground, particularly when Section 22(2) of the AFT Act expressly empowers the Tribunal to condone delay on sufficient cause being shown.

15. This apart not applying for condonation of delay along with the Original Application is a procedural flaw and can be cured even subsequently by filing an application. This opportunity was not provided by AFT to cure this defect as held in State of M.P vs.Pardeep Kumar, (2000) 7 SCC 372.

16. We are thus of the view that Tribunal should have condoned the delay. Be that as it may, since the issue pertains solely to the grant of pensionary benefits to a member of the Territorial Army, we find this to be a fit case the exercise of our extraordinary discretionary jurisdiction and condoned the delay. The only issue for consideration is whether the petitioner is eligible for grant of pension for the service rendered in the Territorial Army, therefore, we proceed to consider the same in this petition.

17. The Territorial Army Personnel are subject to Army Act, 1950 as provided in Para-9 of the Territorial Army Act, 1948. For convenience sake, the aforesaid Para is reproduced as under:- “9. Every officer, when doing duty as such officer, and every enrolled person when called out or embodied or attached to the Regular Army, shall, subject to such adaptations and modifications as may be made therein by the Central Government by notification in the Official Gazette, be subject to the provisions of the Army Act, 1950, and the rules or regulations made thereunder in the same manner and to the same extent as if such officer or enrolled person held the same rank in the Regular Army as he holds for the time being in the Territorial Army.”

18. Further, Para 186 of Pension Regulations for the Army, 2008 (Part-I) provides that Territorial Army personnel below officer rank are eligible for grant of service pension after completion of 15 years embodied service. For convenience sake, the aforesaid Para is reproduced as under:- “186. All Territorial Army personnel (other than civil government servants and civil pensioners), who have a minimum qualifying aggregate embodied service of 20 years in the case of officer and 15 years in the case of personnel below officer rank, shall be eligible for service pension.”

19. We have also perused Regulation 292 of Pension Regulations for the Army, 1961 (Part-I) (Chapter V-Territorial Army Section I-General), as per which Territorial Army personnel are governed by the same general regulations as are applicable to the corresponding personnel of regular Army. For convenience sake, the aforesaid Regulation is reproduced as under:- “292. The grant of pensionary awards to the members of the territorial Army shall be governed by the same general the corresponding regulations as are applicable personnel of the Army except where they are inconsistent with the provisions of regulations in this Chapter."

20. From the aforesaid it is clear that rules made for regular Army personnel are applicable to Territorial Army personnel also as they are subject to Army Act, 1950. Para 186 of aforesaid Regulations clearly lays down that Territorial Army personnel are eligible for grant of service pension after completion of 15 years service.

21. The Hon‟ble Apex Court in „Pani Ram vs. Union of India and others’, reported as 2021 (9) SCR 1024, has held that Territorial Army Personnel shall be governed by the same Pension Regulations as applicable to regular Army personnel. Operative part of the aforesaid order reproduced as under:- “16.It could thus be seen that the grant of pensionary award to the members of the Territorial Army shall be governed by the same rules and regulations as are applicable corresponding persons of the Army except where they are inconsistent with the provisions of Regulations in the said chapter.

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 (Territorial Army) Ecological. Infantry Battalion for 130

20. It is thus clear that the ETC 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 ETC which is a company for 130 Infantry Battalion (Territorial Army), we see no reason as to why the appellant was denied the disability pension. Xxxxx

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. With regard to signing of certificate by the employee to forgo pensionary benefits in Ecological Task Force, the Hon‟ble Apex Court relying upon Central Inland Water Transport Corporation Limited and Another vs Brojo Nath Ganguly and Anr has held in Para 23 of Pani Ram case (supra) as under:- “23. As held by this Court, a Right to Equality guaranteed under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair, reasonable and unconscionable a clause in that contract or form or rules may be. We find that the said observations rightly apply to the facts of the present case. Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking re-employment in the Territorial Army, have an equal bargaining power. We are, therefore of the considered view that the reliance placed on the said document would also be of no assistance to the case of the respondents.”

23. Apropos above, we are of the view that the petitioner is eligible for grant of service pension for the services rendered by him in Territorial Army (Ecological Task Force).

24. Having regard to the fact that the issue is regarding grant of pension and the same stands settled by the Hon‟ble Apex Court in Pani Ram‟s case (supra), as well as the fact that petitioner has rendered more than 15 years service in 129 Infantry Battalion (Territorial Army) Ecological, impugned order dated 27.02.2024 passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu in OA No. 530/2018 is set aside and the respondents are directed to grant service pension to the petitioner for the services rendered by him in 129 Infantry Battalion (Territorial Army) Ecological .

25. The writ petition is, accordingly, disposed of in the above terms. (SHAHZAD AZEEM) (SINDHU SHARMA) JUDGE JUDGE Jammu: 20.11.2025 Bir*