Punjab-Haryana High Court
Union Of India And Others vs Ex Sub Maman Singh And Another on 13 November, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:148105-DB
CWP-30626-2024
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
(Sr. No.113) CWP-30626-2024
Date of Decision: 13.11.2024
Union of India and Others .....Petitioners
Versus
JC-205906Y, Ex. Sub Maman Singh and another ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Arihant Goyal, Advocate
for the petitioners.
Mr. Navdeep Singh, Advocate for respondent No.1.
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SURESHWAR THAKUR, J.(Oral)
1. Through the instant writ petition, the petitioner(s)/Union of
India prays for setting aside the order dated 10.10.2018 (Annexure P-1)
as passed by the learned Armed Forces Tribunal concerned, whereby
the respondent concerned, was granted the benefit of rounding off, thus
for computing the disability element vis-a-vis disability pension.
Factual Background.
2. Respondent No.1 i.e. Ex. Sub Maman Singh was enrolled
in the Indian Army on 24.05.1974 and was discharged from service
w.e.f. 31.05.2002. Consequent to his discharge from the service, the
respondent concerned, was granted the following disability benefits
alongwith other dues.
Disability Element of disability pension w.e.f. 01.06.2002
@ 20% for life.
3. Thereafter, the respondent filed O.A., before the Tribunal
concerned rather for the grant of benefit of rounding off disability
element at 50% for life w.e.f. 01.06.2002. The said application was
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allowed vide order dated 10.10.2018 (Annexure P-1). The operative
part of the said order is extracted hereinafter.
"In the present case, the applicant is already getting
disability element of disability pension for life w.e.f.
01.06.2002 @ 20% disability as is apparent from
Annexure A-3, therefore, he is entitled for the benefit of
rounding off by computing his disability element of
disability pension to the extent of 50% as against 20%
with effect from 01.06.2002. Accordingly, the application
is allowed on the same terms as in Ram Avtar's case
(supra) and order dated 03.05.2018 (Annexure A-1) is set
aside."
4. Feeling aggrieved from the afore order, the
petitioner(s)/Union of India has filed thereagainst the instant writ
petition.
Submissions of the learned counsel for the petitioners.
5. At the outset, the learned counsel for the petitioners-Union
of India refers to the rendition(s) of various judgments by the Hon'ble
Apex Court, wherebys, there has been a restriction of the apposite
arrears for a period of three years. He further submits that in view of
the expostulations of law made thereins, the learned Tribunal concerned
should have restricted the grant of arrears to the respondent for three
years.
6. Initially, a reference is required to be made to paragraphs
No. 5 and 6 of the verdict rendered by the Hon'ble Apex Court in case
titled as Civil Appeal No. 5151-5152 of 2008 (Arising out of SLP (C)
Nos.3820-3821 of 2008 titled as Union of India and Others Vs.
Tarsem Singh, decided on 13.08.2008. The said paragraphs No. 5 and 6
become extracted hereinafter.
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"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.
6. In this case, the delay of 16 years would affect the
consequential claim for arrears. The High Court was not
justified in directing payment of arrears relating to 16
years, and that too with interest. It ought to have restricted
the relief relating to arrears to only three years before the
date of writ petition, or from the date of demand to date of
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writ petition, whichever was lesser. It ought not to have
granted interest on arrears in such circumstances."
7. A reading of paragraph No. 5 of the verdict (supra) clearly
underscores the fact that in case any claim is hit by the vices of delay
and laches, thus ultimately affecting the apposite invested indefeasible
right qua the army personnel, but relating only to payment or re-fixation
of pay or pension, therebys, the said delayed claim, rather than
becoming straightway rejected, thus, is required to be allowed, but with
a fetter that the arrears of pension being restricted upto a period of three
years prior to the date of filing of the writ petition.
8. In the said case in paragraph No. 6 thereof, the Apex Court
declared that the High Court was not justified to direct the release of
arrears of pension covering a period of 16 years and that too with
interest.
9. The said view also appears to have been accepted in a
judgment bearing Civil Appeal No. 274 of 2007 (Arising out of SLP
(Civil) No. 881 of 2006) titled as Shiv Dass Vs. Union of India and
Others, decided on 18.01.2007. The relevant paragraphs whereof are
extracted hereinafter.
9. In the case of pension the cause of action actually
continues from month to month. That, however, cannot be
a ground to overlook delay in filing the petition. It would
depend upon the fact of each case. If petition is filed
beyond a reasonable period say three years normally the
Court would reject the same or restrict the relief which
could be granted to a reasonable period of about three
years. The High Court did not examine whether on merit
appellant had a case. If on merits it would have found that
there was no scope for interference, it would have
dismissed the writ petition on that score alone.
10. In the peculiar circumstances, we remit the matter to
the High Court to hear the writ petition on merits. If it is
found that the claim for disability pension is sustainable in
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law, then it would mould the relief but in no event grant
any relief for a period exceeding three years from the
date of presentation of the writ petition. We make it clear
that we have not expressed any opinion on the merits as to
whether appellant's claim for disability pension is
maintainable or not. If it is sans merit, the High Court
naturally would dismiss the writ petition. The appeal is
disposed of accordingly without any order as to costs.
Submissions of the learned counsel for the respondent.
10. On the other hand, the learned counsel for the respondent
submits that the afore said judgments are not applicable to the instant
case, as the member of the defence combatant establishment was
already in receipt of the disability pension and that the endowments of
the apposite benefits hence through makings of rounding(s) off, thus
would only result in a justifiable increase in pension.
11. In support of his arguments, he placed reliance on a three
Judge Bench judgment passed by the Hon'ble Apex Court, on
20.09.2016, in case titled as Davinder Singh Vs. Union of India and
Others, to which Civil Appeal No.9946 of 2016 is assigned. The
relevant paragraphs of the said verdict are extracted hereinafter.
"This appeal arises out of an Order dated 04.11.2011
passed by the Armed Forces Tribunal, Regional Bench,
Chandigarh whereby O.A. No. 1289 of 2011 has been
allowed in part and the appellant held entitled to the
benefit of rounding off w.e.f. 01.01.1996. The Tribunal has
however directed that the appellant shall be entitled to
claim arrears subject to adjustment of the amount already
paid to him only for a period of three years prior to the
filing of the application moved by him before the Tribunal.
It is that part of the order only which has been assailed
before us in the present appeal.
xxxx xxxx
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We accordingly allow this appeal and modify the
order passed by the Tribunal to the extent that the
appellant shall also on the analogy of the order passed by
the Tribunal in Jai Singh's case supra be entitled to
arrears payable to him by reason of rounding off of
disability pension w.e.f. 01.01.1996 with interest @ 8%
p.a. subject to adjustment of any amount already received
by him for the said period. We are told by learned counsel
for the respondent that the appellant has already received
the benefit of arrears w.e.f. 01.01.1996 to 01.07.2009. If
that be so, arrears will be confined only to the period that
has not already been paid for. No costs."
Inferences of this Court.
12. Though, visibly in case any delayed motion is raised by the
aggrieved wherebys a challenge is caused to a declining order passed
by the concerned, thereupon, the raising of a delayed motion but makes
the same to be hit by the vice of delay and laches. However, the
exception to the above principle, as settled through verdicts recorded by
the Apex Court in case titled as Union of India and Others Vs. Tarsem
Singh (supra) and in case titled as Shiv Dass Vs. Union of India and
Others (supra), is that, yet the defence personnel concerned, becoming
entitled to re-fixation of pension vis-a-vis him, but with a further rider
that the said is to be restricted only for a period of three years from the
date of filing of the petition.
13. Be that as it may, a further exception even to the supra
extracted paragraphs, as occur in the verdicts (supra) rendered by the
Apex Court, is to the extent, that in case an indefeasible right becomes
vested in the aggrieved, thereupon, the said vestment of an indefeasible
right in the aggrieved, thus would fuel a recurring or a continuous
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cause of action vis-a-vis the aggrieved. Resultantly, therebys the
delayed raising of a claim, thus would not attract theretos rather the bar
of limitation nor therebys any purported vice of delays and laches
would effectively function as a stumbling block against the granting of
the fullest relief to the aggrieved.
14. For determining whether the cause of action which accrued
vis-a-vis the present respondent thus was a recurring or a continuous
cause of action besides for determining whether at the very inception,
an indefeasible right vested in the present respondent, thereby, it is
necessary to bear in mind the factum that, the relevant cause of action
accrued to the present respondent, upon, the making of a verdict by the
Hon'ble Apex Court in case titled as 'Union of India Vs. Ram Avtar',
reported in 2014 SCC Online 1761, decided on 10.12.2014, whereins,
a declaration is made to the extent, that the benefit of rounding off,
rather has to become endowed to the concerned. The relevant
paragraphs as occur in the verdict (supra) are extracted hereinafter.
4. By the present set of appeals the appellant(s) raise the
question, whether or not, an individual, who has retired on
attaining the age of superannuation or on completion of
his tenure of engagement, if found to be suffering from
some disability which is attributable to or aggravated by
the military service, is entitled to be granted the benefit of
rounding-off of disability pension. The appellant(s) herein
would contend that, on the basis of Circular No.
1(2)/97/D(Pen-C) issued by the Ministry of Defence,
Government of India, dated 31.01.2001, the aforesaid
benefit is made available only to an Armed Forces
Personnel who is invalidated out of service, and not to any
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other category of Armed Forces Personnel mentioned
hereinabove.
5. We have heard learned counsel for the parties to the lis.
6. We do not see any error in the impugned judgment(s)
and order(s) and therefore all the appeals which pertain to
the concept of rounding-off of the disability pension are
dismissed, with no order as to costs.
7. The dismissal of these matters will be taken note of by
the High Courts as well as by the Tribunals in granting
appropriate relief to the pensioners before them, if any,
who are getting or are entitled to the disability pension.
15. Therefore, since the said indefeasible right became vested
in the present respondent, upon, the makings of the verdict by the Apex
Court, in case titled as 'Union of India Vs. Ram Avtar (supra). In
sequel, the declaration of law made in the verdict (supra), whereunders
an effective right becomes endowed vis-a-vis the concerned, thus is to
be revered. Resultantly, the endowment of the said right, vis-a-vis the
concerned, thus becomes the cornerstone for thus therefroms
determining, whether in prompt sequel thereto rather the present
respondent raised a claim, and, in tandem therewith.
16. Since the verdict (supra) became pronounced on
10.12.2014 and the respondent raised in terms of the said verdict, thus a
motion before the Tribunal concerned, in the year 2018. Though, the
respondent in terms of the verdict (supra) did not raise a prompt motion
in pursuance theretos, but raised a motion only after a delay of about 3
½ years taking place. However, when the endowments made
thereunders vis-a-vis the present respondent, but naturally conferred an
indefeasible right qua him. Therefore, when the indefeasible right
invested in the present respondent rather through verdict (supra) but
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concomitantly also conferred a continuous and recurring cause of
action qua the present respondent. Resultantly also thereunders an
indefeasible right became vested in the present respondent for his
seeking qua the apposite roundings off being made in his favour.
17. Even otherwise since the declaration of law made in
verdict (supra) makes the said declaration to be an expostulation of law
in rem, therebys, the expostulation of law in rem, as made in verdict
(supra) also makes the thereunders conferred benefits vis-a-vis the
defence personnel concerned, to, prima facie, also entitle the
concerned, thus to at any time, seek the granting of the endowments as
made thereunders, and that too, in the fullest complement, as spelt
thereunders, besides irrespective of the bar of delay and laches.
Final Order of this Court.
18. In aftermath, this Court finds no merit in the writ petition
and with the observations aforesaid, the same is dismissed. The
impugned order is maintained and affirmed.
19. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
13.11.2024 JUDGE
ANJAL
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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