Anusua Roy vs Uoi And Ors
2012 Latest Caselaw 4885 Del

35
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    W.P.(C)No.9088/2011

%                                Date of decision: 22nd August, 2012

      ANUSUA ROY                        ..... Petitioner
                           Through : Col. (Retd.) S.R. Kalkal, Adv.

                      versus

      UOI AND ORS                     ..... Respondents
                           Through : Mr. Ankur Chhibber, Adv.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. This writ petition has been filed by the widow of Late

Colonel A.K. Roy who served with the Indian Army between

1974 to 1979, initially on Short Service Commission. Colonel

A.K. Roy was released from service on 18th December, 1979

after a total service of 5 years and 87 days. Thereafter he was

re-commissioned as Second Lieutenant in Territorial Army on

13th October, 1980 where he continued to serve till the age of

his superannuation on 31st July, 2005. It is undisputed that

Colonel A.K. Roy had rendered a total of 18 years 2 months

and 18 days of embodied service.

2. Colonel Roy had developed some health problems for

which he was treated but could not be completely cured and

was placed in Low Medical Category P-3 (T X 24) temporarily

and subsequently in category P-2 (permanent) with effect from

July, 2003. In the year 2005, he was found suffering with

Diabetes Mellitus type II and was again placed in low medical

category. Colonel Roy was also diagnosed as suffering with

primary hypertension. As the respondents denied Colonel Roy

service pension as well as disability pension, he raised this

issue before the respondents but his request was rejected by a

communication dated 3rd June, 2008. It was held by the

respondents that Col. Roy had not rendered pensionable

service and therefore, not entitled to service pension. It was

also held that both diseases were not attributable to military

service and so he was not entitled to disability pension for this

reason.

3. The respondents have contended that the husband of the

petitioner did not pursue the matter further and expired on

18th January, 2010.

4. The petitioner thereafter made an application dated 31st

January, 2011 seeking family pension. It appears that the

petitioner also sought information under the Right to

Information Act from the respondents with regard to the

entitlement of her husband to the pension, his service details

as well as his medical examination. The same was denied by a

communication dated 24th February, 2011 on the ground that

the service/medical documents in respect of Colonel Roy had

been weeded out on completion of 15 years from the date of

his release. Mr. S.R. Kalkal, learned counsel appearing for the

petitioner submits that this position is wholly erroneous

inasmuch as Colonel A.K. Roy had retired only on the 31 st of

July 2005.

5. In view of the denial of pension to her, the petitioner

approached the Armed Forces Tribunal by way of

O.A.No.204/2011. The same was decided by an order dated

20th September, 2011 finding that the petitioner‟s husband,

Col. A.K. Roy was entitled to the pension but since he had not

prosecuted the matter, it was held that he could not be

granted arrears from the date of his discharge. The Armed

Forces Tribunal has further held that both the diseases of

Colonel A.K. Roy were attributable to military service and has

therefore, held that the petitioner was entitled to special family

pension. However, the Tribunal has held that the petitioner

would be entitled to grant of special family pension in

accordance with law only from the date of filing of the petition.

The petition having been partially allowed, the petitioner has

assailed the order dated 20th September, 2011 limited to the

failure of the Tribunal to award her the arrears of pension

which were admissible to Col. A.K. Roy as well as the arrears of

special family pension.

The respondents have not challenged the findings and

order of the tribunal.

6. Our attention has been drawn to the basis on which the

respondents were rejecting the pension to persons who were

retiring from the territorial army. The respondents were of the

view that the territorial army personnel did not have 20 years

of service and therefore, were not entitled to pension in

accordance with the rules. It appears that a person similarly

situated as Col. A.K. Roy had carried the matter by way of

WP(C)No.2713/2003 to this court. This writ petition came to be

transferred to the Armed Forces Tribunal where it was

registered as T.A.No.46/2010. An Adjudication therein resulted

in a favourable judgment passed on 19 th February, 2010 in the

case titled Major S.D. Singh v. Union of India & Others.

Inasmuch as the respondents have set up a plea that the

prayer for pension by Colonel Roy was belated, reference

deserves to be made to the observations of the Armed Forces

Tribunal in Major S.D. Singh v. Union of India & Others

(Supra) which were to the following effect-

"4. A reply was filed by the respondents and respondents have taken the position that Territorial Army is a part time concept and it cannot be treated at par with Indian Army and in that connection, they pointed out that petitioner has not put in 18 years of service but he has put in 16 years 92 days service in regular Army. It is also pointed that matter was examined at all level and ultimately, Additional Directorate General Territorial Army, General Staff branch, Army Headquarters, „L‟ Block, New Delhi vide communication dated 16.04.2002 has informed the Group Headquarters of all Commands that Territorial Army officers have never been treated at par with regular commissioned officers and the benefit of provision of Regulation 15 of Pension Part- I, 1961 for Army about late entrants cannot be extended to Territorial Army officers as this Regulation is only applicable to regular commissioned officers only.

5. We have learned counsel for parties and perused the record.

6. At the outset we express our great regret that the matter has been mishandled badly. The Government orders dated 30th October, 1987 and 03rd February, 1998 have been flouted with impunity. Either Authorities have not read it or they have not applied their mind at all. Subordinate officers are bound by the Government decisions and they cannot override them. In this connection, reference may be made to first order dated 30th October, 1987 which needs to be reproduced as a whole to show that how thoughtlessly matter has been examined."

7. The Tribunal reproduced the Government decisions and

thereafter, observed as follows:-

"8. These two orders make it explicitly clear that the persons from the Territorial Army will be governed by the necessary pensionary Regulations which are applicable to Army also. There are no two opinions in the matter and there is no room for

doubt. The Government orders dated 30th October, 1987 for implementation of Fourth Central Pay Commission and 3rd February, 1998 for implementation of Fifth Central Pay Commission make it abundantly clear that that the persons working in the Territorial Army will be governed by the Indian Army Pensionary Regulations for the purposes of working out their pensions.

9. It may be relevant to reproduce Regulation 292 of Pension Regulations for the Army for Territorial Army and same is reproduced as under:-

"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."

10. A similar case came before us i.e. Lt. Col. I.K. Talwar Vs. Union of India & Others (T.A. No. 771/2009) and we have also held that the personnel of the Territorial Army for the purposes of pension shall be treated at par with Army officer. We have been shown the minutes of the note sheet of the Defence Ministry and CGDA (pension). We regret to say that there is not at all proper application of mind in this case. They are all obsessed with same concept of late entrants and the personnel of the Territorial Army stands differently for the purposes of pension. But the intention of the Government and two orders which have been issued in pursuance of the implementation of Fourth Pay Commission and Fifth Pay Commission leaves no room for doubt.

11. After going through the files we record our great displeasure the way in which the case has been dealt and total non application of mind and this is the complete derogation of the policy decision of the Government. Despite the fact that the Government has already decided on 30th October, 1987 and 03rd February, 1998 still there is a doubt lurking in the mind of CGDA (pension) and so much so the Defence Ministry who has issued this circular after

consultation with the Department of Personnel did not stick to that and wade away by the observations of CGDA (pension). At least Ministry should have themselves examined orders issued by them on 30th October, 1987 and 03rd February, 1998. Therefore, we are of the opinion that the order passed by the Government dated 10.01.2003 is set aside and respondents are directed to work out the arrears of pension of petitioner and release the same and pay the same with interest @ 12% per annum."

(Emphasis Supplied)

8. The stand of the respondents before this court that the

matter was not cleared till the adjudication by the Armed

Forces Tribunal in Major S.D. Singh v. Union of India &

Others (Supra) is specious to say the least. Government

orders on this issue existed since October, 1987 as well as 3 rd

February, 1998. Despite the criticism by the tribunal as noted

above, it is unfortunate that before us also the stand of the

respondents is still untenable that the officers of the territorial

army, also being governed by the Pension Regulation of the

Indian Army, was unclear till the passing of the judgment in

Major S.D. Singh v. Union of India & Others (Supra).

9. In para 5 of the impugned judgment dated 20 th

September, 2011, we find that the tribunal has observed

categorically that Col. Roy was wrongly denied the service

pension as all persons of the territorial army were governed by

the Pension Regulations of the Indian Army and therefore,

injustice was done to the petitioner‟s husband. The tribunal

rejected the objection of the respondents and further observed

that there is no reason as to why justice should not be done

and reiterated that the husband of the petitioner was entitled

to service pension which was wrongly denied to him. However,

the tribunal accepted the objection of the respondents that the

husband of the petitioner did not pursue the matter after

rejection of his complaint filed by him and that his wife cannot

get the double benefit of the special family pension.

10. In support of the contention that there was no delay

either on the part of Col. Roy or the petitioner in raising a

claim, it has been vehemently urged by Mr. Kalkal, on behalf of

the petitioner that fixation of pension, its award and payment

are the duties of the employer/respondents.

11. In this regard, this court in 104 (2003) DLT 5 DB titled

Constable Jasbir Singh v. Union of India & Others had

held in para 6 that the pension is neither a gratuity nor a

bounty given by the respondents. It was an obligation on the

part of the respondents to have granted pension to the

petitioner. If the same has not been granted, the fault lies with

the respondents and no plea of limitation can be entertained in

the matter of grant of pension.

12. Reliance has been placed on the pronouncement of the

Supreme Court reported at AIR 1997 SC 27 titled S.R.

Bhanrale v. Union of India and Others wherein the court

had awarded interest, compensation, litigation expenses, etc.

for pension amounts which were wrongly withheld from the

appellant for a period of more than 12 years. This award as

compensation was made with a view to settle the equities and

do justice to the parties in the facts of the case. The petitioner

in this case did not approach the respondents for payment of

leave encashment, increments, arrears, etc. and the

respondents pleaded the bar of limitation.

13. On a similar plea of delay and laches in claiming the

disability pension, in the judgment reported at 2009 (1) All

India Services Law Journal 371 titled Union of India &

Others v. Tarsem Singh, the court inter alia decided that

continuing wrongs applies in service law as well and

recurring/successive wrongs are those which occur

periodically, each wrong giving rise to a distinct and separate

cause of action. In this regard, the court had summarized the

legal position thus:-

"5. 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 decision which related to or affected several others also, and if the re-opening 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 re- fixation 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. In (2007) 2 SCC (L&S) 395 titled Shiv Dass v. Union

of India and Others, again on the issue of delay and laches

in claiming disability pension by an army employee, the court

held that cause of action in case of pension continues from

month to month but in case of delay in filing the writ petition

beyond a reasonable period, i.e., three years, relief could be

restricted to the period of three years only, if the claim found

to be sustainable in law.

15. It is undisputed before us that though the petitioner had

retired on 31st July, 2005, his Release Medical Board had not

been held till January, 2008. Mr. Ankur Chhibber, learned

counsel for the respondents makes a reference to the

Reclassification Board which would have been held for the

purposes of assessing disability. It is however not disputed

that the Release Medical Board and the Reclassification Board

are the independent Boards which were to be conducted by

the respondents. There is no explanation as to why such

board was not held for a period of three years. Mr. S.R. Kalkal,

learned counsel appearing for the petitioner has urged that in

the face of the delay in the Release Medical Board, the matter

of processing of service pension of the petitioner would not

have been undertaken by the respondents and therefore, the

delay between 31st July, 2005 when Col. Roy retired and

January, 2008 when the Release Medical Board was conducted

cannot be held against the petitioner‟s husband.

16. This court is in the dark with regard to the circumstances

or the status of the health of Colonel Roy between January,

2008 when his Release Medical Board was held and 18th

January, 2010 when he died. The petitioner approached the

respondents within one year of his death. The respondents

denied information to her to which she was entitled. This was

done on a plea that the documents had been destroyed even

though 15 years from the date of release had not been

completed. This was also a violation of the procedure and

highly unfair to the petitioner.

17. In the light of these observations and findings and given

the factual narration noticed by us hereinabove, the denial of

pension to Colonel Roy for the reason that he had not

prosecuted the matter, especially the fact that admittedly his

Release Medical Board had not been held till January, 2008 and

he died on 18th January, 2010 before the expiry of three years

thereafter, we are of the view that the tribunal has erred in

rejecting the petitioner‟s prayer for the arrears of pension

which were admissible to Col. A.K. Roy. Such a direction would

have been in consonance with the spirit, intendment and

purport of the judicial pronouncements noticed hereinabove

and was essential to do justice in the facts of the instant case.

18. So far as the arrears of disability pension are concerned,

the Release Medical Board of Colonel A.K. Roy was held only on

January, 2008. The Armed Forces Tribunal has rightly arrived

at a finding that both the diseases with which Colonel Roy was

suffering were attributable to military service and found that

the petitioner would be entitled to special family pension. As

noticed above, the Release Medical Board of the petitioner‟s

husband, Colonel A.K. Roy was held only in January, 2008. No

reason has been recorded as to why the petitioner had not

been granted the benefit of disability pension from the date of

such board or special family pension w.e.f. the date on which

the petitioner‟s husband had expired. For the reasons

recorded hereinbefore and in the factual background detailed

by us, we are of the view that the petitioner deserves to be

paid the arrears of disability pension which were admissible to

Colonel A.K. Roy with effect from the date in January, 2008

when his Release Medical Board was held till the date of his

death, i.e, 18th January, 2010. It is so directed.

It is further directed that the petitioner would be paid

special family pension with effect from 19th January, 2010 in

accordance with law.

19. In view of the above, the impugned order dated 20 th

September, 2011 passed by the Armed Forces Tribunal is

modified to the extent set out in para 18 above. We further

direct the respondents to compute the arrears to which the

petitioner would be entitled within a period of six weeks from

today and communicate the calculation thereof to the

petitioner immediately thereafter. The respondents shall

ensure that payment in terms of the order passed by us are

made to the petitioner within a period of six weeks thereafter.

This writ petition is allowed in the above terms.

GITA MITTAL, J

J.R. MIDHA, J AUGUST 22, 2012 aj