Ex. Sep. Sukhbir Singh v. Union Of India & Ors.

1. The petitioner by this petition is seeking quashing of the impugned order dated 04.04.2011 He also seeks directions to the respondents to grant him invalid pension from the date of his discharge i.e 17.05.2005, in accordance with relevant rules and regulations of the Government of India.

2. The petitioner was enrolled in the Territorial Army on 07.11.1994 and was invalided out of service on 17.05.2005 after being placed in low medical category on account of IPSILATERAL FRACTURE SUPRA CONDYLAR FEMAR TIBAL CONOYLAR FRACTURE PATELLA FRACTURE. It was contended that although he had served for a period in excess of 10 years, the respondents reduced 365 days of unembodied service thereby bringing down the total period served in the Army to 9 years and 201 days i.e, 164 days short of 10 years.

3. It was argued by the learned counsel for petitioner that in accordance with directions contained in Government of India, Ministry of Defence letter dated 14.08.2001, any shortfall in 10 years service could be condoned by Service HQs upto a period of 6 months or 180 days. In his case, the condonation required was for 164 days which was well short of the period which could be condoned by the service HQs. The petitioner drew our attention to Pension Regulation for the Army, 1961, Rule 197 and 198 which clearly stipulates that he was entitled to invalid pension even if the disability was not attributable or aggravated by military service and thus condonation of 164 day's service was all that was required to be done by the respondents. Accordingly, in all fairness, this condonation should be done and he should be entitled to invalid pension from the date of his retirement. Para 197 and 198 of the Pension Regulations are extracted below:—

“197. Invalid pension/gratuity shall be admissible in accordance with the Regulations in this chapter to

(a) an individual who is invalided out of service on account of a disability which is neither attributable to nor aggravated by service;

(b) an individual who is though invalided out of service on account of a disability which is attributable to or aggravated service, but the disability is assessed at less than 20%; and

(c) a low medical category individual who is retired/discharged from service for lack of alternative employment compatible with his low medical category.”

“198. The minimum period of qualifying service actually rendered and required for grant of invalid pension is 10 years. For less than 10 years actual qualifying service invalid gratuity shall be admissible.”

4. Learned counsel for the petitioner also drew our attention to the fact that he had earlier filed an OA No. 291/2010 before the same Bench of the Armed Forces Tribunal, but that was for grant of disability pension, which had been rejected by the AFT on 06.05.2010 by the order “We do not find any ground to interfere in the matter”. Therefore, he is not pressing his disability pension and is now seeking only invalid pension.

5. Learned counsel for the petitioner stated that when they had filed the earlier OA, they were unaware that the Ministry of Defence had laid down certain guidelines for condonation of delay upto 6 months vide their letter dated 14.08.2001, and it was only subsequently he was apprised of the contents of this letter and have now filed for condonation of 164 days for grant of invalid pension.

6. The respondents have filed their reply and have contested the version of the petitioner and drawn our attention to Pension Regulation 125, which supposedly denies a person in these circumstances, any grant of invalid pension. Pension Regulation 125 is appended below:—

“725. Except in the case of:

(a) an individual who is discharged at his own request, or

(b) an individual who is eligible for special pension or gratuity under Regulation 164, or

(c) an individual who is invalided with less than 15 years service, deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority upto six months in each case.”

7. Learned counsel for the petitioner has argued that even Pension Regulation 125(c) specifies that “deficiency in service for eligibility to service pension or reservist pension or gratuity in lieu may be condoned by a competent authority upto six months in each case”. Therefore, this very Rule by which the respondents are denying him invalid pension, in actual fact, empowers them to grant invalid pension to him.

8. We have heard both the parties and have perused the record. Paras 197, 198 and 125 entitle the petitioner for grant of invalid pension after condoning the period of 164 days. Accordingly, we condone this delay of 164 days that will make 10 years service.

9. The respondents, however, argued that the petitioner cannot be given invalid pension from the date of his retirement i.e 17.05.2005 as he has only filed the application on 11.05.2012 Therefore, in all fairness, he can at best be given arrears of invalid pension for a period of three years preceding filing of this petition, which was filed on 11.05.2012

10. Accordingly, we allow the petition and direct that the petitioner will be entitled to invalid pension and arrear from the period of three years prior to filing of this petition i.e, 11.05.2012 alongwith interest @ 12% p.a No order as to costs.