ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI
M.A.No. 687 of 2016 & O.A.No. 286 of 2016
MONDAY, THE 5TH DAY OF DECEMBER, 2016/14TH AGRAHAYANA, 1938
CORAM:
HON'BLE MR. JUSTICE S.S. SATHEESACHANDRAN, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANTS:
BALAN KUNNUMAL (EX NO.6303514 L/NAIK OF INDIAN ARMY)
AGED 70 YEARS, S/O LATE KRISHNAN NAIR,
KRISHNA HOUSE, THRIKUTTISSERI, VAKAYAD PO.,
VIA. NADUVANNUR, CALICUT DIST., KERALA – 673 614.
BY ADV. SRI.T.R.JAGADEESH & COL.S.VIJAYAN.
versus
RESPONDENTS:
1.
UNION OF INDIA, REPRESENTED BY ITS SECRETARY
MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI – 110 011.
2.
THE CHIEF OF THE ARMY STAFF,
INTEGRATED HEADQUARTERS (ARMY),
SOUTH BLOCK, NEW DELHI – 110 011.
3.
OIC RECORDS, RECORD SIGNALS,
PIN – 908 770, C/O 56 APO.
4.
PRINCIPAL CONTROLLER OF DEFENCE
ACCOUNTS (PENSIONS),
OFFICE OF THE PCDA (P) DRAUPATI GARH,
ALLAHABAD – 211 014.
BY ADV. SHRI. M. RAJENDRA KUMAR, SENIOR PANEL COUNSEL
O.A.No. 286 of 2016
-: 2 :-
ORDER
Satheesachandran, Member (J):
The applicant, an Ex-serviceman, who is now aged 70
years, has filed the above application for quashing
Section
125(c) of the Pension Regulations for the Army, 1961 (for short
'the Regulations') as null and void and also to issue directions to
the respondents to grant him service pension condoning the
short fall in his service.
2. The applicant has moved the above application with a
petition to condone the delay of 38 years, 6 months and 8 days
in prosecuting the reliefs claimed.
3. The delay petition with the application coming up for
enquiry we heard learned counsel for the applicant on merits of
his case as well.
The applicant enrolled on 23.4.1964
was
invalided out of service on 30.4.1978 on low medical category
ground.
The
Release Medical Board assessed his disability
O.A.No. 286 of 2016
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element at less than 20% for a period of two years, but opining
that it was attributable to military service.
According to the
applicant, he was not granted disability pension since the
assessment of disability was less than 20%. However, he was
sanctioned invalid pension. After the period of two years when
Re-survey Medical Board was held he could not appear on the
specified date. His request for attending on another date was
not considered. He had rendered army service for 14 years and
8 days by the time he was invalided out of service. He therefore
prayed for condoning the short fall required to satisfy the
qualifying service to get pension, but that was rejected holding
that he was invalided out with less than 15 years of service. The
applicant, therefore, has filed the above application impeaching
Regulation
125(c)
of
the
Regulations,
which
interdicts
condonation of short fall to a personnel granted invalid pension,
as null and void, to seek for granting him service pension
condoning the shot fall in his service.
4. Learned counsel for the applicant Shri.T.R. Jagadeesh
O.A.No. 286 of 2016
-: 4 :-
pointing out that Regulation 125(a) of the Regulations has been
rendered unconstitutional by this Tribunal urged for quashing of
Regulation 125(c) of the Regulations as well contending that the
exclusion made thereunder denying the benefit of condonation of
short fall of service to those personnel granted invalid pension is
unjust and inequitable.
Where a service personnel, who had
voluntarily retired from service is allowed to get condonation of
his short fall in service and thus obtain service pension, denial of
such benefit to a personnel
for the reason that he had been
granted invalid pension is totally unjustifiable, is the submission
of the counsel to urge that the challenge raised
against
Regulation 125(c) of the Regulations as unconstitutional deserves
consideration and approval by this Tribunal.
5. Perusing the annexures produced with the O.A., we find
that the applicant had previously approached the Hon'ble High
Court
filing a Writ Petition to seek for the grant of disability
pension. Claim raised by the applicant for disability pension was
turned down dismissing his Writ Petition. That Writ Petition was
O.A.No. 286 of 2016
-: 5 :-
dismissed
by judgment dated 7th January 1986 mainly on the
ground of delay after the discontinuance of his disability pension.
Annexure A2 judgment passed in the Writ Petition also indicates
that he had been granted disability pension but later it was
discontinued. After discontinuance of his disability pension, it is
seen, he has been granted invalid pension and is in enjoyment of
such pension. When he is in enjoyment of invalid pension, which
can be granted only when he is not in enjoyment of any other
pension, that too for
the last so many years, the case now
advanced to claim service pension impeaching Regulation 125(c)
of the Regulations as unconstitutional has no merit. He cannot
approbate and reprobate
setting forth one or another
where the claims canvassed cannot at all go together.
claim
At the
time of his invaliding out from service the maximum period of
short fall in his service that may be condoned to have
service/reservist pension was only upto six months.
Further
more, the condonation of deficiency in service for eligibility for
service/reservist pension was not applicable to those who had
been invalided with less than 15 years of service. The restriction
O.A.No. 286 of 2016
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so imposed under Regulation 125(c) of the Regulations is based
on sound policy in the sense that the benevolent provision of
condonation under the Regulation should not be misused and
extended in favour of those who had been invalided out of
service on low medical ground.
Regulation 125(a), which
interdicted condonation in the case of an individual who had been
discharged at his own request had been struck down by the
Tribunal as unconstitutional has no application in examining the
validity of the restriction imposed under Regulation 125(c)
prohibiting condonation of
deficiency in the case of invalided
personnel. Further more, in the case of the applicant, who is
continuously enjoying invalid pension on account of his invaliding
out from service with less than 15 years of service, no question
of deficiency of condonation of short fall in service to enable him
to get service pension arise for consideration.
Such claim
canvassed by him with a petition to condone the delay of more
than 38 years to entertain his O.A. lacks merit and it is liable to
be dismissed as unworthy of any merit. We do so.
O.A.No. 286 of 2016
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6. The Original Application and the M.A. are therefore
dismissed.
7. There will be no order as to costs.
8. Issue free copy of this order to both sides.
Sd/-
Sd/-
VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN,
MEMBER (A)
MEMBER (J)
tm.
/True Copy/
Prl. Private Secretary