Ex. Signalman Kirpal Singh Vs U.O.I. Thru. Its Secy. Ministry of Defence, New Delhi and Ors.

Neutral Citation No. - 2025:AHC-LKO:22357-DB

Court No. - 1 Case :- WRIT - A No. - 4234 of 2025 Petitioner :- Ex. Signalman Kirpal Singh Respondent :- U.O.I. Thru. Its Secy. Ministry Of Defence, New Delhi And Ors. Counsel for Petitioner :- Kranti Kumar Misra,Jitendra Singh Counsel for Respondent :- A.S.G.I.

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Hon'ble Attau Rahman Masoodi,J. Hon'ble Rajeev Singh,J.

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1. Heard learned counsel for the petitioner and Sri Varun Pandey, Advocate appearing for the Union of India.

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2. The instant writ petition has been filed by the petitioner praying as under:

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"(i) To quash the order dated 08.10.2024 passed by Armed Forces Tribunal, Regional Bench, Lucknow, dismissing the OA on the grounds of delay.

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(ii) To issue writ, order or directions to the respondents to grant 20% disability pension to the petitioner, duly rounded of to 50%, from the date of his discharge from the service, with arrears and interest as applicable and with consequential benefits of service."

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3. The disability pension arising out of invalidating the petitioner from military service in the year 1968 was claimed by him instituting OA No. 614/2016 with MA 246/2017. The MA No. 246/2017 had sought condonation of delay for instituting OA No. 614/2016 and the same was disposed of on 09.05.2017 treating the claim of disability pension as a continuing cause of action. Once the application was allowed, the Tribunal proceeded to consider the grievance of the petitioner and passed final order on the same day, i.e., 09.05.2017.

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4. The order on the MA and order dated 09.05.2017 passed on the OA read as under:-

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" Μ.Α. 246/2017

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The applicant has filed this application seeking condonation of delay in filing the OA claiming disability pension.

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2 Learned counsel for the applicant submits that since the claim of disability pension is based on a continuing cause of action, which arises every month, the delay needs to be condoned, if required by restricting payment of arrears for a period of three years preceding the date of filing of the OA.

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3. Learned counsel appearing for the respondents on the other hand submits that since the applicant has failed to demonstrate any sufficient cause in not filing the OA in time, the delay may not be condoned.

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4. We have considered the submissions advanced by the learned counsel for the parties and have also perused the pleadings. The applicant has filed the OA claiming disability pension. Such claim being based on a continuing cause of action, which arises every month, we dispose of the MA with the observation that in case the applicant is found to be entitled to the relief claimed in the OA, the arrear may be restricted for a period of three years peoceding the date of filing of the OA.

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5. MA, accordingly, stands disposed of.

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OA 614/2016

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Heard Mr. Rohit Pratap, learned counsel for the applicant and Mr. Prabodh Kumar, learned counsel for the respondents.

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2. The applicant has filed this OA claiming the disability pension contending inter alia that though, the applicant at the time of release from service was found to have suffering from certain disablement, disability pension/disability element of the pension has not been granted on the ground that such disability was neither attributable nor aggravated by military service.

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3. Admittedly, the applicant is yet to prefer any appeal before the First Appellate Authority against the decision of the authority.

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4. The Government of India on 17.05.2016 had taken a policy decision to entertain the appeal claiming disability pension/disability element of pension, in old cases, as a one-time measure provided appeal is preferred within a period of one year from the date of issuance of such Notification.

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5. That being the position and there have been still time to prefer an appeal by the applicant, before the First Appellate Authority, we dispose of the OA allowing the applicant to file such appeal by 16.05.2017 before the appropriate authority. In case of filing such appeal, the First Appellate Authority shall decide the same in accordance with law. The order that may be passed shall be communicated to the applicant so that if he has any further grievance, he may approach the appropriate authority.

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6. OA is accordingly dispose of. Order dasti."

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5. Later on, a further MA No. 662/2018 was filed in OA No. 614/2016, which was disposed of vide order dated 24.04.2018 which reads as under:-

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" MA 662/2018

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Maj Deepak Ranvah, Officer In charge of the Legal Cell (Army), has stated that representation of the applicant has already been decided in the month of December, 2017 but he is not in possession of a copy of the said decision. However, he undertakes to supply the same to the learned counsel for the applicant within a week.

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Having regard to the statement made by the Officer In charge, Legal Cell, we treat this application as disposed of. In case the copy of the order is not supplied to the applicant or his counsel within a week, the applicant shall be well within his right to seek revival of this application.

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MA 662/2018 stands disposed of."

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6. A conjoint reading of the orders passed on 09.05.2017 and 24.04.2018 clearly reveals that the Tribunal having appreciated the policy decision taken by the Government of India on 17.05.2016 had left it open for the petitioner to file a first appeal before the appellate authority arising out of the rejection of his disability pension, of which, the cause had arisen to him as a result of invalidation from military service on 02.07.1968.

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The petitioner is stated to have filed the appeal on 25.05.2017, which was forwarded to the competent authority through registered post on 30.05.2017 as is evident from the documents placed on record. The appeal filed by the petitioner seems to have been returned to him for want of relevant service record being available with the authorities as the same was destroyed by burning after the expiry of mandatory period of retention treating it to be a non-pensioner case. This letter of returning the appeal was communicated to the petitioner on 09.10.2017. After disposal of the OA No. 614/2016 along with the miscellaneous applications, it appears that the matter was reagitated by the petitioner before the authorities, in response to which, he was informed vide letter dated 12.12.2017 regarding the return of appeal submitted on 25.05.2017. It was reiterated in the letter dated 12.12.2017 that Sheet Roll, RMB and rejection letter, which were mandatory documents for adjudication of the first appeal, the same had been destroyed by burning after the expiry of mandatory period of retention. The case was clarified as a non-pensioner case as per Para 592 to 596 of Defence Service Regulations for the Army Volume II, 1987 (Revised Addition).

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7. It is, in these circumstances, that the first appeal which was left open to be filed by the Tribunal in terms of the policy decision of the Government of India taken on 17.05.2016 proved of no use to the petitioner. The petitioner does not seem to have made a further application for revival of the proceedings in terms of the order dated 24.04.2018 extracted hereinabove. The petitioner, instead, chose to institute a fresh OA before Armed Forces Tribunal, Regional Bench, Lucknow with the following prayer:-

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"(i) To quash signal Records, Jabalpur, letter Nos.P6281584/C3-IIA dt 29 Jan 69 and P6281584/DPI/NER dt 8 Aug 87, (Annexures A-1 and A-2 respectively to OA).

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(ii) To direct the respondents to grant 20% disability Pension to the applicant as per his entitlement, duly rounded of to 50%, along with its arrears with interest as applicable."

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On scrutiny of the prayer made in the fresh OA, the Tribunal has rejected the prayer made by the petitioner on the ground that the OA was filed with heavy latches of 52 years. It is this premise recorded by the Tribunal, which has given rise to the present writ petition filed by the petitioner before this Court. It is profitable to note that the petitioner, who failed to revive the proceedings before the Tribunal in terms of the order dated 24.04.2018, has rather reiterated his claim by setting out a cause against the initial order of invalidation without instituting any appeal regarding the denial of disability pension or treating him to be a case of non-pensioner.

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8. The Tribunal, in absence of any medical report or the relevant orders whereby the case of the petitioner was treated to be a case of non-pensioner, could not go into the merits of the case, but has rather rejected the same on the ground of heavy latches.

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9. We are not taken through any provision applicable to the case of the petitioner, whereunder a case where the service record is destroyed by burning can be entertained by a Court of law for adjudication straightaway. In absence of any such provision, the Tribunal having appreciated the cause of limitation as is the case at hand cannot be faulted with simply on the ground that the period of delay stood condoned in the proceedings before the Armed Forces Tribunal, Principal Bench, New Delhi as has been noted above. Once the petitioner himself failed to revive the proceedings before the Tribunal at Delhi on any tangible ground for want of decision taken on his first appeal, the order passed by Armed Forces Tribunal, Regional Bench, Lucknow on the ground of limitation in the light of relief sought herein cannot be faulted with.

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10. In the circumstances of the case, we are of the considered opinion that the impugned judgement passed by the Armed Forces Tribunal, Regional Bench, Lucknow does not suffer from any illegality or perversity calling for interference in exercise of the supervisory powers under Article 226/227 of the Constitution of India. We, however, leave it open to the petitioner to make an appropriate application before Armed Forces Tribunal, Principal Bench, New Delhi, if it is so chosen.

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11. The writ petition is, accordingly, disposed of .

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[Rajeev Singh, J.] [Attau Rahman Masoodi, J.]

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Order Date :- 21.4.2025/Arpan

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Digitally signed by :- ARPAN High Court of Judicature at Allahabad, Lucknow Bench

Ex. Signalman Kirpal Singh v. U.O.I. Thru. Its Secy. Ministry of Defence, New Delhi and Ors.

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Ex. Signalman Kirpal Singh v. U.O.I. Thru. Its Secy. Ministry of Defence, New Delhi and Ors.

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