Writ Petition No. 21051 of 1990 · High Court

Judgment

1. This writ petition is directed against order dated 15.03.2023 passed by Armed Forces Tribunal, Regional Bench, Lucknow, whereby the Transferred Application (T.A.) of the petitioner, has been allowed for grant of disability pension and though it has been held that the petitioner is entitled to get disability pension at the rate of 30% for life from the next date of his invalidation which would be rounded off to 50% for life with effect from 01.01.1996, however, the arrears have been restricted for three years preceding the date application was received by the Tribunal by transfer and the date of receiving the application by the Tribunal by transfer has been indicated as 01.04.2019.

2. The petitioner had filed Civil Misc. Writ Petition No.21051 of 1990 under Article 226 of the Constitution of India before this Court, which was later on transferred to the Armed Forces Tribunal under the provisions of Section 34 of the Armed Forces Tribunal Act, 2007 (for short ‘the Act’) by order dated 15.02.2019 passed by the learned Single Judge of this Court.

3. The petition was filed aggrieved of the order of discharge from service. The petitioner who was enrolled in the Indian Army on

05.09.1973 was invalidated out from service on 19.03.1978 in low medical category. At the time of invalidation from service, the Medical Board assessed his disability ‘RECURRENT SEIZURE’ at the rate of 30% for one year and opined that the disability was neither attributable to nor aggravated (NANA) by service.

4. The claim for grant of disability pension was rejected by order dated 13/16 November, 1978, the appeal preferred was rejected on

08.08.1979, aggrieved of which, the writ petition was filed.

5. Though no prayer was made in the petition for the grant of disability pension, it was orally prayed before the Tribunal that disability pension in terms of Regulation 173 of the Pension Regulations for the Army, 1961 (Part-I) be granted. Consequently, the order impugned was passed.

6. Though in the present writ petition, the petitioner has sought higher pension at the rate of 60% for life as rounded off to 75% from the next date of discharge, counsel for the petitioner during the course of submissions, confined the prayer to the effect that the direction given by the Tribunal restricting the payment of arrears for three years preceding the date application was received by the Tribunal by transfer be set aside as the petitioner had filed the writ petition in the year 1990 and the same was transferred to the Tribunal and, therefore, the relief of arrears could not be restricted with reference to the date the application was received by the Tribunal, the same should have been allowed at least from before 3 years from the year 1990 when the petition was filed by the petitioner and, therefore, the order to that extent deserves to be modified.

7. Learned counsel for the respondent supported the order impugned. Submissions have been made that the petitioner has already filed execution application before the Armed Forces Tribunal in relation to the order dated 15.03.2023 and, therefore, the petition deserves to be dismissed.

8. We have considered the submissions made by counsel for the parties and have perused the material available on record. 2 of 4

9. The facts are not in dispute wherein the writ petition was filed before this Court in the year 1990 and the same came to be transferred by order dated 15.2.2019 to the Tribunal which was received by the Tribunal on 01.04.2019. The Tribunal has relied on the judgement in Shiv Dass vs. Union of India : 2007 (3) SLR 445 for restricting the relief which could be granted for a reasonable period say three years before the date of filing of the petition, however apparently the Tribunal fell in error by ignoring the fact that the petition was filed in the year 1990 and the same remained pending before the High Court till 2019 when the same ordered to be transferred to the Tribunal and, therefore, the relief could not be restricted with reference to the date the transferred petition was received by the Tribunal on 01.04.2019.

10. Section 34 of the Act deals with the transfer of pending cases which reads as under: “34. Transfer of pending cases.—(1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal. (2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section (1),— (a) the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal; (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub-section (2) of section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.”

11. A perusal of sub-section (2) (b) of Section 34 would reveal that on transfer the Tribunal on receipt of records is required to proceed to deal with the proceedings in the same manner as in the case of original application, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit and, therefore, on transfer of the petition from High Court to the Tribunal, the 3 of 4 same essentially was in continuation of pending proceedings before this Court and, therefore, even in terms of judgement in the case of Shiv Dass (supra), the relief could only be restricted with reference to the date of filing of the writ petition before this Court and not with reference to the date application was received by the Tribunal by transfer.

12. Consequently, the writ petition is partly allowed.

13. The order impugned dated 15.03.2023 passed by the Tribunal is modified only to the extent that the arrears shall be restricted with effect from three years preceding the date of filing of the writ petition before this Court and the date of filing of the writ petition before this Court is

10.08.1990. Rest of the directions contained in the order dated 15.03.2023 are maintained. Order Date :- 3.4.2025 RK (Kshitij Shailendra, J) (Arun Bhansali, CJ) 4 of 4

08.08.1979, aggrieved of which, the writ petition was filed.

5. Though no prayer was made in the petition for the grant of disability pension, it was orally prayed before the Tribunal that disability pension in terms of Regulation 173 of the Pension Regulations for the Army, 1961 (Part-I) be granted. Consequently, the order impugned was passed.

6. Though in the present writ petition, the petitioner has sought higher pension at the rate of 60% for life as rounded off to 75% from the next date of discharge, counsel for the petitioner during the course of submissions, confined the prayer to the effect that the direction given by the Tribunal restricting the payment of arrears for three years preceding the date application was received by the Tribunal by transfer be set aside as the petitioner had filed the writ petition in the year 1990 and the same was transferred to the Tribunal and, therefore, the relief of arrears could not be restricted with reference to the date the application was received by the Tribunal, the same should have been allowed at least from before 3 years from the year 1990 when the petition was filed by the petitioner and, therefore, the order to that extent deserves to be modified.

7. Learned counsel for the respondent supported the order impugned. Submissions have been made that the petitioner has already filed execution application before the Armed Forces Tribunal in relation to the order dated 15.03.2023 and, therefore, the petition deserves to be dismissed.

8. We have considered the submissions made by counsel for the parties and have perused the material available on record. 2 of 4

9. The facts are not in dispute wherein the writ petition was filed before this Court in the year 1990 and the same came to be transferred by order dated 15.2.2019 to the Tribunal which was received by the Tribunal on 01.04.2019. The Tribunal has relied on the judgement in Shiv Dass vs. Union of India : 2007 (3) SLR 445 for restricting the relief which could be granted for a reasonable period say three years before the date of filing of the petition, however apparently the Tribunal fell in error by ignoring the fact that the petition was filed in the year 1990 and the same remained pending before the High Court till 2019 when the same ordered to be transferred to the Tribunal and, therefore, the relief could not be restricted with reference to the date the transferred petition was received by the Tribunal on 01.04.2019.

10. Section 34 of the Act deals with the transfer of pending cases which reads as under: “34. Transfer of pending cases.—(1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal. (2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section (1),— (a) the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal; (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under sub-section (2) of section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.”

11. A perusal of sub-section (2) (b) of Section 34 would reveal that on transfer the Tribunal on receipt of records is required to proceed to deal with the proceedings in the same manner as in the case of original application, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit and, therefore, on transfer of the petition from High Court to the Tribunal, the 3 of 4 same essentially was in continuation of pending proceedings before this Court and, therefore, even in terms of judgement in the case of Shiv Dass (supra), the relief could only be restricted with reference to the date of filing of the writ petition before this Court and not with reference to the date application was received by the Tribunal by transfer.

12. Consequently, the writ petition is partly allowed.

13. The order impugned dated 15.03.2023 passed by the Tribunal is modified only to the extent that the arrears shall be restricted with effect from three years preceding the date of filing of the writ petition before this Court and the date of filing of the writ petition before this Court is

10.08.1990. Rest of the directions contained in the order dated 15.03.2023 are maintained. Order Date :- 3.4.2025 RK (Kshitij Shailendra, J) (Arun Bhansali, CJ) 4 of 4