Punjab-Haryana High Court
Raj Pal Kaushal vs Union Of India And Ors on 24 October, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
Neutral Citation No:=2024:PHHC:141216-DB
CWP-17365-2022 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-17365-2022
Date of Decision on: 24.10.2024
RAJ PAL KAUSHAL .....Petitioner
Versus
UNION OF INDIA AND OTHERS .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE ALOK JAIN
Argued by: Mr. Priyavarat Parashar, Advocate
for the petitioner.
Mr. Rohit Verma, Senior Panel Counsel
for the respondent - UOI.
****
SURESHWAR THAKUR, J. (ORAL)
1. Through the instant writ petition, the petitioner herein
prays for setting aside the relevant part of the order dated 23.09.2019
(Annexure P-10), as passed by the learned Armed Forces Tribunal
concerned, whereby the arrears of disability pension to the petitioner
have been restricted to three years from the date of filing of the Original
Application.
Factual Background.
2. The petitioner was enrolled in the Army on 16.10.1975 and
was invalided out from services w.e.f. 03.07.1983. At the time of
discharge from services, the petitioner was placed in low medical
category EEE (Permanent) for disability 'GENERALIZED TONIC
CLONIC EPILEPSY'. The medical board assessed the disability of the
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petitioner @ less than 20 % for two years and declared the disability of
the petitioner as neither attributable to nor being aggravated by military
service. The PCDA (P) vide letter dated 30.09.1983 rejected the
disability pension claim of the petitioner.
3. Feeling aggrieved, the petitioner filed first appeal
thereagainst on 12.06.1986. The said appeal became dismissed vide
order dated 14.07.1986 on the ground that since the petitioner failed to
submit the appeal against rejection of disability pension claim within
the stipulated time i.e. within six months from the date of rejection,
therefore, no action can be taken now.
4. Thereafter, the petitioner filed second appeal on
07.02.2018 against his rejection order, and, also sent a legal notice
dated 07.02.2018 to the respondents, with a request to grant him
disability element of disability pension. The said claim was denied by
the respondents vide letter dated 26.02.2018.
5. Feeling dis-satisfied from the afore, the petitioner filed OA
before the Tribunal concerned for the grant of disability pension. The
said O.A. became allowed vide order dated 23.09.2019 (Annexure P-
10). The operative part of the said order is extracted hereinafter.
"... Considering the law laid down by the Hon'ble
Supreme Court and also the attendant circumstances and
issues discussed in detail above, the rejection of the claim
of the Applicant is set aside and the Applicant is thus
held entitled to disability pension. However since the
disability was assessed for two years only and there was
considerable delay in approaching this tribunal, the
actual arrears are restricted to a period of three years
prior to the filing of instant application, that is,
25.01.2019 subject to assessment by a Re-Assessment
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Medical Board, including for future regulation of his
disability....."
6. Aggrieved from the afore part of the relevant order,
whereby the arrears of disability pension have been restricted to three
years from the date of filing the application, the petitioner has filed the
instant writ petition.
Submissions of the learned counsel for the petitioner.
7. The learned counsel for the petitioner submits that, in the
instant case, despite their existing a vested right qua the petitioner, thus
under the then existing rules, wherebys he was entitled to receive a
particular statutory benefit, yet the same became illegally held back or
became rejected by the respondents. In such cases, the Hon'ble Supreme
Court has held that arrears cannot be restricted and the respondents
cannot be allowed to take the benefit of their own wrong. In support of
his arguments, the learned counsel for the petitioner places reliance
upon a judgment rendered by the Hon'ble Apex Court in case titled as
'Balbir Singh Vs. Union of India and Others' to which Civil Appeal
No. 3086 of 2012 became assigned, decided on 08.04.2016. The
relevant paragraph of the said judgment is extracted hereinafter.
"The Tribunal was therefore justified in restoring the
service element of the pension in favour of the appellant.
The question however is whether the arrears could have
been restricted to three years only. The Tribunal in our
view need not have done so. That is because the appellant
had a right to receive service element of the pension in
light of Regulation 186 (supra), which right was valuable
and ought to have been protected. The fact that the
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appellant had approached the Tribunal for redress
belatedly was in the peculiar circumstances of the case,
no reason for the Tribunal to reduce the payment of
arrears to three years only."
Submissions of the learned counsel for the respondent.
8. The learned State counsel has placed reliance upon a
judgment rendered by the Hon'ble Supreme Court in case titled as State
of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and
Others, reported in 2014 (3) Apex Court Judgments (SC) 598. The
relevant paragraphs whereof, are extracted hereinafter.
23. The legal principles which emerge from the reading of the
aforesaid judgments, cited both by the appellants as well as the
respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is
given relief by the Court, all other identically situated persons need to
be treated alike by extending that benefit. Not doing so would amount
to discrimination and would be violative of Article 14 of the
Constitution of India. This principle needs to be applied in service
matters more emphatically as the service jurisprudence evolved by this
Court from time to time postulates that all similarly situated persons
should be treated similarly. Therefore, the normal rule would be that
merely because other similarly situated persons did not approach the
Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized
exceptions in the form of laches and delays as well as acquiescence.
Those persons who did not challenge the wrongful action in their cases
and acquiesced into the same and woke up after long delay only
because of the reason that their counterparts who had approached the
Court earlier in time succeeded in their efforts, then such employees
cannot claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would be treated
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as fence-sitters and laches and delays, and/or the acquiescence, would
be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where
the judgment pronounced by the Court was judgment in rem with
intention to give benefit to all similarly situated persons, whether they
approached the Court or not. With such a pronouncement the
obligation is cast upon the authorities to itself extend the benefit
thereof to all similarly situated person. Such a situation can occur
when the subject matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see K.C. Sharma &
Ors. v. Union of India (supra). On the other hand, if the judgment of the
Court was in personam holding that benefit of the said judgment shall
accrue to the parties before the Court and such an intention is stated
expressly in the judgment or it can be impliedly found out from the
tenor and language of the judgment, those who want to get the benefit
of the said judgment extended to them shall have to satisfy that their
petition does not suffer from either laches and delays or acquiescence.
9. The expostulations of law, as set forth in the above
extracted paragraphs, is that, in case the relevant challenge is hit by the
vices of delay and laches, thereupon, thus, the further inference
therefroms, is that, the aggrieved thus acquiescing to the validity of the
rejection order. Resultantly in the wake of the above, the espoused
claim became amenable to become partly dismissed.
Inferences of this Court.
10. Before proceeding to decide the instant lis, it is necessary
to refer 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, since the filing of the time barred petition, and it
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is also further necessary to determine, whether the case of the petitioner
falls in any of the exceptions theretos, if any.
11. Initially, for rendering an answer to the above, 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.
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.
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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
writ petition, whichever was lesser. It ought not to have granted interest
on arrears in such circumstances."
12. 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.
13. 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.
14. 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
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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
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.
15. Be that as it may, since initially, a communication dated
30.09.1983/22.10.1983 (Annexure P-4) was made to the petitioner
about his becoming encumbered with disability less than 20 % for life
and the same became declared to be neither attributable nor become
aggravated by the service rendered by him in the Army. Moreover,
when the said made communication is not being proven to be suffering
from any falsity. However, yet the petitioner preferred an appeal against
the rejection order (supra) on 12.06.1986 and the said appeal became
rejected vide order dated 14.07.1986 on the ground that the petitioner
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failed to submit the appeal against the rejection of disability pension
claim within the stipulated time i.e. within six months from the date of
rejection.
16. For the reasons to be assigned hereinafter, this Court finds
no infirmity with the impugned order passed by the Tribunal concerned.
17. Primarily, since the petitioner was required to be promptly
raising a motion against the rejection order dated
30.09.1983/22.10.1983, through his either filing an appeal thereagainst
or filing an O.A., before the Tribunal concerned. However, he filed an
appeal thereagainst only in the year 1986, inasmuch as, after a delay of
about three years. Moreover, he filed O.A. before the Tribunal
concerned, in the year 2019. Therefore, when the O.A., was filed after
almost about 32 years elapsing since the passing of the rejection order
(supra). Therefore, in view of the declaration of law, as made in verdicts
(supra) that upon a truthful communication becoming made to any
member of the defence personnel, yet his omitting to promptly raise a
challenge theretos. In sequel, when it is also expounded in the verdicts
(supra) that therebys any belated challenge, though becomes hit by the
vices of gross delays and laches, but yet when it is further declared in
verdicts (supra) that the arrears of pension are to be restricted to three
years.
18. Resultantly, this Court finds no reason to interfere with the
order passed by the learned Tribunal concerned, qua its restricting the
arrears to three years preceding the date of filing of the O.A.
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Final Order of this Court.
19. In aftermath, this Court finds no merit in the writ petition,
and, with the above observations, the same is dismissed.
20. The impugned order, as passed by the learned Armed
Forces Tribunal concerned, is maintained and affirmed.
21. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(ALOK JAIN)
24.10.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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