Delhi High Court
Union Of India & Ors. vs Hav D Srinivasa Rao, Retd. on 20 December, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.12.2024
+ W.P.(C) 6815/2024 & CM APPL. 28408/2024
UNION OF INDIA & ORS. .....Petitioners
Through: Mr. Piyush Beriwal, Mr. Sandip
Munian & Ms. Jyotsna Vyas,
Advs.
Major Anish Muralidhar, Army.
Mr. Manoj Kumar Gupta, Adv.
for applicant.
versus
HAV D SRINIVASA RAO, RETD. .....Respondent
Through: Adv. (appearance not given)
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed challenging the Order dated
13.12.2022 passed by the learned Armed Forces Tribunal, Principal
Bench, New Delhi (in short, “Tribunal”) in Original Application (in
short, “OA”) No.2568/2022 titled Ex HAV D Srinivasa Rao (Retd.) v.
Union of India & Ors., allowing the OA filed by the respondent
herein with the following directions:
i. Calculate the pension of the applicant
based on the last held rank by him before
retirement i.e. Havildar, and in consonance
with the principles of calculation that have
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By:NEELAM
Signing Date:26.12.2024
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been upheld in JWO Gopalakrishnan in this
regard; and
ii. The applicant will be accordingly issued
a fresh Corrigendum PPO in the last rank held
by him within two months and the arrears paid
accordingly, failing which, it shall carry
interest @ 6% till actual payment.
2. The respondent had approached the learned Tribunal
contending therein that he had joined the services on 02.11.1984, and
was promoted to the post of Substantive Havildar on 01.08.2000. He
was discharged from the service at the position of Havildar on
31.12.2000. The respondent was aggrieved by the fact that the
petitioners determined his pension not taking into account his post of
Havildar, on the plea that he had not completed 10 months of service
in the said rank. The respondent, therefore, filed the OA before the
learned Tribunal on 31.10.2022.
3. The learned Tribunal, as noted hereinabove, has allowed the
OA inter alia holding therein that the respondent was entitled to the
benefit of the last rank held by him even if it has been for a duration of
less than 10 months. The petitioners were, therefore, directed to
recalculate the pension of the respondent in the rank of Havildar.
4. Aggrieved by the above order, the present petition has been
filed inter alia on two grounds: the first being that the respondent was
not entitled to the benefit of his rank of Havildar as he had not
completed 10 months of service in the said rank before his
superannuation; the second being that the learned Tribunal has erred
in directing the payment of the pension with effect from 01.01.2001
though the OA was filed by the respondent before the learned Tribunal
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By:NEELAM
Signing Date:26.12.2024
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only on 31.10.2022.
5. This Court, as far as the first ground is concerned, rejected the
same vide its Order dated 23.07.2024, observing as under:
“3. Insofar as the first plea of the petitioners is
concerned, we find that the learned Tribunal
has relied on the decision of its Regional
Bench at Chennai in O.A. 62/2014 titled JWO
Gopalakrishnan v. UOI & Ors. Having
perused the said decision, which was
unsuccessfully assailed before the Apex Court,
we find no merit in this plea of the petitioners.
However, we are prima facie inclined to
accept the petitioners’ second plea that
arrears of revised pension could not have been
directed to be paid to the respondent w.e.f.
01.01.2001 and the same should have been
restricted to a period of 3 years to the date of
filing of the O.A.”
6. As far as the second ground is concerned, this Court issued
notice of this petition to the respondent and stayed the said direction
only insofar as it had directed the petitioners to pay the pension for the
period prior to the filing of the petition.
7. The learned counsel for the petitioners submits that as the
petition had been filed after a gap of almost 21 years, the learned
Tribunal has erred in directing the payment of pension for the period
prior to the filing of the application by the respondent.
8. On the other hand, the learned counsel for the respondent
submits that the benefit of the pension, even when the personnel has
held the post for less than 10 months, arises from the government
circulars themselves, therefore, the benefit should have been extended
by the petitioners on their own without forcing the respondent to
approach the learned Tribunal. He submits that, therefore, the learned
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By:NEELAM
Signing Date:26.12.2024
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Tribunal has rightly directed the revised pension to be paid to the
respondent from the date of his discharge. In support, he places
reliance on the Judgment of the Supreme Court in Davinder Singh v.
Union of India & Ors., dated 20.09.2016 in Civil Appeal
No.9946/2016 and the Judgment of the High Court of Punjab and
Haryana in Amarjit Singh v. Union of India & Ors., dated 26.05.2014
in CWP No.20936/2012.
9. We have considered the submissions made by the learned
counsels for the parties.
10. As it is noted hereinabove, the respondent was discharged from
the service on 31.12.2000. He filed the OA before the learned
Tribunal only on 31.10.2022. The learned Tribunal, placing reliance
on the Judgment of the Supreme Court in Union of India & Ors. v.
Tarsem Singh, (2008) 8 SCC 648, condoned the delay of 8161 days in
filing the OA. The same judgment also states the law as under:-
“7. 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 reopening of the issue would affect the
settled rights of third parties, then the claimSignature Not Verified
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By:NEELAM
Signing Date:26.12.2024
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will not be entertained. For example, if the
issue relates to payment or refixation 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.
Insofar as the consequential relief of recovery
of arrears for a past period is concerned, the
principles relating to recurring/successive
wrongs will apply. As a consequence, the 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.
8. In this case, the delay of sixteen years
would affect the consequential claim for
arrears. The High Court was not justified in
directing payment of arrears relating to
sixteen 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.”
11. In Davinder Singh (supra), the Supreme Court was considering
a case where the learned Tribunal had relied upon an earlier order
passed by the learned Tribunal in a batch of Original Application,
which order had been affirmed by the Supreme Court, and by which
the relief had been granted not restricting it to a period of three years
prior to the filing of the Original Applications. The Supreme Court, in
those peculiar facts, held that the learned Tribunal had erred in
restricting the relief to the petitioners therein. The said judgment was,
therefore, in the facts of its own case and cannot come to the
assistance of the respondent herein.
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By:NEELAM
Signing Date:26.12.2024
15:34:54
12. In Amarjit Singh (supra), the Punjab and Haryana High Court
has not considered the Judgment of the Supreme Court in Tarsem
Singh (supra).
13. In view of the above, the learned Tribunal has clearly erred in
directing the revised pension to be paid to the respondent right from
the date of his discharge instead of confining the relief to the period
commencing from three years prior to the date of his filing the OA.
14. We, therefore, partially allow this petition and modify the
directions given by the learned Tribunal in its Impugned Order, by
directing that the revised pension shall be paid by the petitioners to the
respondent commencing from three years prior to the filing of the OA
before the learned Tribunal and to be continued to be paid in future.
15. The petition along with pending application, if any, stands
disposed of in the above terms.
NAVIN CHAWLA, J
SHALINDER KAUR, J
DECEMBER 20, 2024/ab/B/as
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Digitally Signed W.P.(C) 6815/2024 Page 6 of 6
By:NEELAM
Signing Date:26.12.2024
15:34:54