Ex. Recruit Chhote Lal v. Counsel for

1. Heard Shri Sunil Kumar Pandey, learned counsel for the petitioner, Ms. Pooja Agarwal, learned counsel for the respondents and perused the material available on record.

2. This petition has been filed challenging the order dated 11.03.2022 whereby the Armed Forces Tribunal, Regional Bench, Lucknow (in short 'the Tribunal') has dismissed the Original Application ('O.A.') No.368 of 2021 filed by the petitioner. It may be noted that initially challenging the said order dated 11.03.2022, a writ petition No.8422 of 2024 was filed by the petitioner before the High Court of Chhattisgarh at Bilaspur. The same was dismissed on 20.12.2024 on the ground of maintainability before the said High Court and liberty was granted to the petitioner to approach the court of competent jurisdiction. The present writ petition has, thereafter, been filed before this Court.

3. Brief facts of the case are that the petitioner was enrolled as a recruit in Indian Army on 23.12.2006. He was placed in low medical category on account of a disability 'SCHIZOAFFECTIVE DISORDER' which was considered as neither attributable to nor aggravated by military service. He was invalided out from service w.e.f. 20.03.2008 on account of such medical unfitness.

4. Government of India issued a notification dated 16.07.2020 entitling such personnel for invalid pension who were invalided out of service with less 2 WRIA No. 5081 of 2025 then ten years of qualifying service on account of any bodily or mental infirmity, which is neither attributable nor aggravated by military service. Para 4 of the said notification states that armed forces personnel invalided out from service prior to 04.01.2019 were not entitled for invalid pension whereas those who retired on or after 04.01.2019 were entitled for such pension. The said para 4 was challenged by the petitioner before the Tribunal. The Tribunal, after considering the case of the parties, has dismissed the O.A.

5. Learned counsel for the petitioner submits that para 4 of the notification being discriminatory and arbitrary, was liable to be struck down and although the Tribunal accepted the submissions made on behalf of the petitioner and also found the said para arbitrary and discriminatory, dismissal of O.A. by referring to a different paragraph being paragraph 2 of the said notification, is not justified.

6. Submission has been made that dismissal on the ground that those personnel who cannot get a civil reemployment will be eligible for grant of invalid pension and not otherwise, could not be made a ground for non- suiting the petitioner, inasmuch as, no adjudication was made by the Department regarding incapacity of the petitioner to get civil reemployment and, hence, the Tribunal has gone beyond controversy raised through O.A. Further submission has been made that though the petitioner tried to get reemployment in District and Sessions Court Durg, Chhattisgarh on some post, since he could not qualify the first stage of selection, occasion to consider his capacity/incapacity to get civil re-employment did not arise and, therefore, the petitioner could not be non-suited.

7. Learned counsel for the respondents has supported the order impugned and submission has been made that notification dated 16.07.2020 has to be read as a whole and once the Tribunal has considered the said notification in its entirety and found the petitioner as not entitled to get invalid pension, no illegality has been committed by the Tribunal and, consequently, the present petition is liable to be dismissed.

8. Having heard learned counsel for the parties, we deem it appropriate to refer the Government notification dated 16.07.2020 in its entirety which is basis of the entire case of the parties. The same is reproduced as under:- 3 WRIA No. 5081 of 2025 "No. 12(06)/2019/0)(Pen/Pol) Government of India Ministry of Defence Department of Ex-Servicemen Welfare D(Pension/Policy) Sena Bhawan, New Delhi-110011 Dated: 16th July, 2020 To The Chief of the Army Staff The Chief of the Naval Staff The Chief of the Air Staff Sub: 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. No. 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-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 re-opened.

5. All other terms and conditions shall remain unchanged.

6. This issues with the concurrence of Finance Division of this Ministry vide their U.O. No. 10(08)/2016/FIN/PEN dated 29.06.2020.

7. Hindi version will follow. Yours faithfully, sd/- 4 WRIA No. 5081 of 2025 (Ashok Kumar) Under Secretary to the Government of India Copy to: As per standard distribution list."

9. Challenge before the Tribunal was laid by the petitioner to para 4 of the said notification mainly on the ground that providing 04.01.2019 as the cut- off-date to consider grant of Invalid Pension was arbitrary. The Tribunal, after discussing various judgments of Hon'ble Supreme Court, arrived at a conclusion that providing 04.01.2019 as a cut-off-date was clearly discriminatory and accepted the challenge made to paragraph 4. However, the Tribunal considered paragraph 2 of the notification, according to which, the Government has clarified 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. (Emphasis by us)

10. The Tribunal has recorded a finding that the applicant/ petitioner has not been successful in showing that he was not able to get any civil re- employment after discharge and, consequently, denied the benefit of policy in light of paragraph 2 of the notification.

11. Though, learned counsel for the petitioner has made submissions that decision by the Tribunal goes beyond the controversy involved in O.A. and, further, no occasion had arisen to consider capacity/incapacity of the petitioner to get any civil reemployment after discharge, we are not inclined to accept the said submission for the simple reason that in case the petitioner wanted to get Invalid Pension, he was bound to establish before the Tribunal about his entitlement as per all the clauses of the notification dated

16.07.2020. It does not appeal to reason that merely because one of the clauses of the policy which was, in fact, challenged by the petitioner, was found to be discriminatory, the petitioner would be entitled to get Invalid Pension by ignoring other clauses which might be read against him.

12. We find that if the Tribunal tested the entitlement of the petitioner in 5 WRIA No. 5081 of 2025 terms of second paragraph of the notification dated 16.07.2020 and recorded a finding that the petitioner has not been successful in demonstrating that he was not able to get any civil reemployment after discharge, no error was committed by the Tribunal nor does the finding appear to be perverse in absence of any cogent material evidence before us. We are of the view that burden to establish clear entitlement to get Invalid Pension would lay only and only upon the petitioner and it was not for the Department to lead negative evidence in that regard. The words used in paragraph 2 of the policy i.e. 'which permanently incapacitates them from military service as well as civil reemployment' are of significance in the matter and we do not find any error in the order of the Tribunal dislodging the claim of the petitioner in light of paragraph 2 of the notification.

13. For all the aforesaid reasons, we are not inclined to interfere with the order of the Tribunal.

14. Consequently, the writ petition has no merit and is, accordingly, dismissed. August 27, 2025 Jyotsana (Kshitij Shailendra,J.) (Arun Bhansali,CJ.) JYOTSANA SINGH High Court of Judicature at Allahabad

1. Heard Shri Sunil Kumar Pandey, learned counsel for the petitioner, Ms. Pooja Agarwal, learned counsel for the respondents and perused the material available on record.

2. This petition has been filed challenging the order dated 11.03.2022 whereby the Armed Forces Tribunal, Regional Bench, Lucknow (in short 'the Tribunal') has dismissed the Original Application ('O.A.') No.368 of 2021 filed by the petitioner. It may be noted that initially challenging the said order dated 11.03.2022, a writ petition No.8422 of 2024 was filed by the petitioner before the High Court of Chhattisgarh at Bilaspur. The same was dismissed on 20.12.2024 on the ground of maintainability before the said High Court and liberty was granted to the petitioner to approach the court of competent jurisdiction. The present writ petition has, thereafter, been filed before this Court.

3. Brief facts of the case are that the petitioner was enrolled as a recruit in Indian Army on 23.12.2006. He was placed in low medical category on account of a disability 'SCHIZOAFFECTIVE DISORDER' which was considered as neither attributable to nor aggravated by military service. He was invalided out from service w.e.f. 20.03.2008 on account of such medical unfitness.

4. Government of India issued a notification dated 16.07.2020 entitling such personnel for invalid pension who were invalided out of service with less 2 WRIA No. 5081 of 2025 then ten years of qualifying service on account of any bodily or mental infirmity, which is neither attributable nor aggravated by military service. Para 4 of the said notification states that armed forces personnel invalided out from service prior to 04.01.2019 were not entitled for invalid pension whereas those who retired on or after 04.01.2019 were entitled for such pension. The said para 4 was challenged by the petitioner before the Tribunal. The Tribunal, after considering the case of the parties, has dismissed the O.A.

5. Learned counsel for the petitioner submits that para 4 of the notification being discriminatory and arbitrary, was liable to be struck down and although the Tribunal accepted the submissions made on behalf of the petitioner and also found the said para arbitrary and discriminatory, dismissal of O.A. by referring to a different paragraph being paragraph 2 of the said notification, is not justified.

6. Submission has been made that dismissal on the ground that those personnel who cannot get a civil reemployment will be eligible for grant of invalid pension and not otherwise, could not be made a ground for non- suiting the petitioner, inasmuch as, no adjudication was made by the Department regarding incapacity of the petitioner to get civil reemployment and, hence, the Tribunal has gone beyond controversy raised through O.A. Further submission has been made that though the petitioner tried to get reemployment in District and Sessions Court Durg, Chhattisgarh on some post, since he could not qualify the first stage of selection, occasion to consider his capacity/incapacity to get civil re-employment did not arise and, therefore, the petitioner could not be non-suited.

7. Learned counsel for the respondents has supported the order impugned and submission has been made that notification dated 16.07.2020 has to be read as a whole and once the Tribunal has considered the said notification in its entirety and found the petitioner as not entitled to get invalid pension, no illegality has been committed by the Tribunal and, consequently, the present petition is liable to be dismissed.

8. Having heard learned counsel for the parties, we deem it appropriate to refer the Government notification dated 16.07.2020 in its entirety which is basis of the entire case of the parties. The same is reproduced as under:- 3 WRIA No. 5081 of 2025 "No. 12(06)/2019/0)(Pen/Pol) Government of India Ministry of Defence Department of Ex-Servicemen Welfare D(Pension/Policy) Sena Bhawan, New Delhi-110011 Dated: 16th July, 2020 To The Chief of the Army Staff The Chief of the Naval Staff The Chief of the Air Staff Sub: 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. No. 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-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 re-opened.

5. All other terms and conditions shall remain unchanged.

6. This issues with the concurrence of Finance Division of this Ministry vide their U.O. No. 10(08)/2016/FIN/PEN dated 29.06.2020.

7. Hindi version will follow. Yours faithfully, sd/- 4 WRIA No. 5081 of 2025 (Ashok Kumar) Under Secretary to the Government of India Copy to: As per standard distribution list."

9. Challenge before the Tribunal was laid by the petitioner to para 4 of the said notification mainly on the ground that providing 04.01.2019 as the cut- off-date to consider grant of Invalid Pension was arbitrary. The Tribunal, after discussing various judgments of Hon'ble Supreme Court, arrived at a conclusion that providing 04.01.2019 as a cut-off-date was clearly discriminatory and accepted the challenge made to paragraph 4. However, the Tribunal considered paragraph 2 of the notification, according to which, the Government has clarified 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. (Emphasis by us)

10. The Tribunal has recorded a finding that the applicant/ petitioner has not been successful in showing that he was not able to get any civil re- employment after discharge and, consequently, denied the benefit of policy in light of paragraph 2 of the notification.

11. Though, learned counsel for the petitioner has made submissions that decision by the Tribunal goes beyond the controversy involved in O.A. and, further, no occasion had arisen to consider capacity/incapacity of the petitioner to get any civil reemployment after discharge, we are not inclined to accept the said submission for the simple reason that in case the petitioner wanted to get Invalid Pension, he was bound to establish before the Tribunal about his entitlement as per all the clauses of the notification dated

16.07.2020. It does not appeal to reason that merely because one of the clauses of the policy which was, in fact, challenged by the petitioner, was found to be discriminatory, the petitioner would be entitled to get Invalid Pension by ignoring other clauses which might be read against him.

12. We find that if the Tribunal tested the entitlement of the petitioner in 5 WRIA No. 5081 of 2025 terms of second paragraph of the notification dated 16.07.2020 and recorded a finding that the petitioner has not been successful in demonstrating that he was not able to get any civil reemployment after discharge, no error was committed by the Tribunal nor does the finding appear to be perverse in absence of any cogent material evidence before us. We are of the view that burden to establish clear entitlement to get Invalid Pension would lay only and only upon the petitioner and it was not for the Department to lead negative evidence in that regard. The words used in paragraph 2 of the policy i.e. 'which permanently incapacitates them from military service as well as civil reemployment' are of significance in the matter and we do not find any error in the order of the Tribunal dislodging the claim of the petitioner in light of paragraph 2 of the notification.

13. For all the aforesaid reasons, we are not inclined to interfere with the order of the Tribunal.

14. Consequently, the writ petition has no merit and is, accordingly, dismissed. August 27, 2025 Jyotsana (Kshitij Shailendra,J.) (Arun Bhansali,CJ.) JYOTSANA SINGH High Court of Judicature at Allahabad