Union Of India Through Its Secretary To vs Darshan Kumar
2025 Latest Caselaw 1663 J&K

Jammu & Kashmir High Court

Union Of India Through Its Secretary To vs Darshan Kumar on 2 April, 2025

Bench: Sanjeev Kumar, Puneet Gupta

                                                                   Sr. No.58

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU


                                                WP(C) No.1545/2024


Union of India through its secretary to                       ..... Petitioner (s)
Government of India, Ministry of Defence,
New Delhi and others


                               Through :- Mr.Sandeep Gupta CGSC

                         V/s

Darshan Kumar                                                .....Respondent(s)

                               Through :- Mr B.S.Sarmal Advocate

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                JUDGMENT

1 This petition, filed by the Union of India invoking Article 226 of

the Constitution of India, seeks to challenge an order and judgment dated

14.11.2019, passed by the Armed Forces Tribunal (AFT), Srinagar Bench at

Jammu, in Original Application (OA) No. 681/2018 titled Darshan Kumar vs.

Union of India and ors, whereby the AFT has allowed the OA filed by the

respondent herein.

2 The judgment impugned has been called in question by the

petitioners, inter alia, on the ground that the AFT has held the respondent

entitled to the service element of disability pension relying upon Regulation

179 of the Pension Regulations for the Army, 1961 ["Pension Regulations of

1964"] which Regulations, as per the petitioners, have been superseded and

replaced by the Pension Regulations for the Army, Part-I (2008) ["Pension

Regulations of 2008"). It is submitted that, in terms of Pension Regulations of

2008, the service element of disability pension is not payable to an

ex-serviceman working with the DSC unless he has rendered fifteen (15) years

of qualifying service or has been invalidated out of service before completion

of his term of engagement.

3 Learned counsel for the petitioners would argue that the AFT did

not take note of the Pension Regulations of 2008 and erroneously relied upon

Regulation 179 of the Pension Regulations of 1961 He would submit that the

respondent came to be discharged on completion of his term of engagement on

attaining the superannuation age of 55 years and, therefore, was not entitled to

the service element of the disability pension merely on the ground that at the

time of his discharge, he was found suffering from a disability attributable to or

aggravated by army service.

4 Per contra, learned counsel appearing for the respondent would

submit that Regulation 179 of Pension Regulations of 1961 is a provision that

is quite clear and unambiguous. It clearly provides that if a person, at the time

of his discharge, is found suffering from a disability of 20% or more,

attributable to or aggravated by military service, he shall be deemed to have

been invalidated out of service and shall be granted service element of

disability pension from the date of retirement. Learned counsel for the

respondent would submit that the Pension Regulations of 2008 do not have any

statutory force, nor the same have been issued after following the procedure

prescribed under the Army Act and the Business Rules of the Government of

India. He would, therefore, argue that the Pension Regulations of 2008 are

required to be ignored, and it is Regulation 179 of Pension Regulations of 1961

that would be applicable to the case of the respondent. He would also raise an

issue that on the date the respondent was engaged in DSC post his retirement

from the Indian Army, the Pension Regulations of 1961 were in vogue and,

therefore, any subsequent amendment would not be applicable to him.

5 Having heard learned counsel for the parties and perused the

material on record, we are of the considered opinion that the following

questions, which had arisen for determination before the AFT, have not been

considered and determined by it:

(i) Whether the Pension Regulations of 1961 stand superseded and replaced by the Pension Regulations of 2008; and

(ii) Whether the case of the respondent is governed by the Pension Regulations of 1961 which were applicable at the time of his employment with the DSC, or by the Pension Regulations of 2008, which were in vogue at the time of his discharge.

6 Indisputably, at the time when the respondent came to be engaged

in DSC post his retirement from the Indian Army, the Pension Regulations of

1961 were in operation. Subsequently, these Regulations came to be

superseded and replaced by the Regulations of 2008. Now, there is a different

provision in the Pension Regulations of 2008 insofar as entitlement of a person

serving in DSC to service element of disability pension is concerned.

Regulation 53 has completely changed the position. For comparison,

Regulation 179 of the Pension Regulations of 1961 and Regulation 53 of the

Pension Regulations of 2008 are set out below:

179 Disability at the time of retirement/discharge

(1)An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is

20 percent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.

(2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease.

53 Disability element for disability at the time of discharge/retirement

(a) An individual released/retired/discharged on completion of term of engagement or on completion of service limits or on attaining the prescribed age (irrespective of his period of engagement), if found suffering from a disability attributable to or aggravated by military service and so recorded by Release Medical Board, may be granted disability element in addition to service pension or service gratuity from the date of retirement/discharge, if the accepted degree of disability is assessed at 20 percent or more.

(b) The disability element for 100% disability shall be at the rate laid down in Regulation 98 (b) below. For disabilities less than 100% but not less than 20%, the above rates shall be proportionately reduced. Provisions contained in Regulation 98(c) shall not be applicable for computing disability element.

7 Having noticed the difference between the aforementioned two

Regulations and regard being had to the rival contentions raised by learned

counsel appearing on both the sides, we are of the considered opinion that the

matter needs to be remanded back to the AFT for fresh consideration.

Ordered accordingly. While considering the matter afresh, the AFT shall

specifically deal with and determine the aforementioned two questions.

8 Apart from the aforesaid two questions, the parties shall be at

liberty to raise any additional ground(s) or plea(s) for consideration by the AFT

and, if necessary, file specific pleadings in this regard. To enable the AFT to

consider and decide the matter afresh, the judgment passed by it is set aside.

Let the OA be taken up for consideration afresh by the AFT on 30.04.2025.

With the above observations, the present writ petition is disposed

of.

A copy of this order be sent to AFT Srinagar Bench, at Jammu.

                   (PUNEET GUPTA)                   (SANJEEV KUMAR)
                           JUDGE                              JUDGE
Jammu
02.04.2025
Sanjeev


                    Whether the order is reportable: Yes/No