Jammu & Kashmir High Court
Union Of India Th. Its Secretary To vs Ex. Nb. Sub. Jaswant Singh No. Jc428359L on 20 August, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No. 07
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 554/2024
1. Union of India th. its Secretary to .....Appellant(s)/Petitioner(s)
Govt. of India, Ministry of Defence,
South Block, New Delhi-110011.
2. Chief Army Staff, Integrated HQ
Ministry of Defence (Army)
Adjutant General Branch, Add.
Directorate, General Personnel
Services, DHQ PO New Delhi-
110011.
3. Principal Controller of Defense
Accounts(Pensions), Draupadi Ghat,
Allahabad, Uttar Pradesh-211014
4. Officer Incharge Records, Punjab
Regiment Record PIN 908761 C/O
56 APO
Through: Mr. Suneel Malhotra, CGSC
vs
Ex. Nb. Sub. Jaswant Singh No. JC428359L ..... Respondent(s)
S/o Sh. Prem Singh
R/O Village and P.O. Nonial, Tehsil
Nowshera, District Rajouri.
Through: Mr. B. S. Sarmal, Advocate
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT(ORAL)
20.08.2025
Sanjeev Kumar ‘J’
1. This petition, filed by the Union of India and others under Article
226 of the Constitution of India, arises out of an order/judgment
dated 23.02.2023 passed by the Armed Forces Tribunal, Regional
Bench Srinagar, at Jammu [“the Tribunal”] in OA No. 513/2019
titled Jaswant Singh Vs. Union of India and Ors., whereby the
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Tribunal has held the respondent entitled to grant of disability
element of pension at the rate of 50% to be rounded off to 75% for
the intervening period i.e. 01.01.2003 to 17.03.2013.
2. Briefly stated, the facts leading to the filing of this petition, as can be
gathered from the impugned judgment, are that the respondent, who
was enrolled in Indian Army on 28.08.1976, was discharged from
service in low medical category on 31.12.2000 with disability “GSW
(LT) LEG AND FRACTURE TIBIA FIBULA AND
OSTEOMYELITIS” assessed at 50% for two years. The injuries
sustained by the respondent were certified to have been incurred in
operational activities conducted by the petitioners and, therefore,
attributable to military service.
3. Unfortunately, the opinion of the Medical Board was not accepted by
the Principal Controller of Defence Accounts (PCDA), who, on its
own, declared the disability suffered by the respondent neither
attributable to nor aggravated by military service. This is how the
benefit of disability element of pension was denied to the respondent.
4. It seems that the respondent initially accepted his fate and did not
agitate his right to receive disability pension before the competent
authority. It was only on 04.05.2011, the respondent filed the first
appeal before the Appellate Committee, challenging the decision of
PCDA. The appeal was accepted and the petitioners were directed to
hold Re-assessment Medical Board to assess the further disability of
the respondent. Accordingly, the re-Assessment Medical Board of the
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respondent was conducted on 18.03.2013 and he was found suffering
from the same disability and at same degree. On the basis of the
opinion rendered by Re-assessment Medical Board, the disability
element of the disability pension at the rate of 50%, to be rounded off
to 75%, was released in favour of the respondent by the petitioners
with effect from 18.03.2013. The disability element of pension was
also released for the period of two years from 31.12.2000.
5. Feeling aggrieved by the denial of benefit of disability pension for
the intervening period i.e. from 01.01.2003 till 17.03.2013, the
petitioner approached the Tribunal by way of OA No. 513/2019. It is
this OA, filed by the respondent, which has been allowed by the
Tribunal in terms of the judgment impugned.
6. The impugned judgment is challenged by the petitioners primarily on
the ground that the Tribunal has failed to appreciate that there was
delay of 11 years in approaching the Appellate Authority and,
therefore, the benefit of arrears of disability pension ought to have
been restricted by the Tribunal to three years prior to filing of the
appeal by the respondent before the Appellate Authority.
7. Mr. Suneel Malhotra, learned CGSC submits that though the
petitioners do not dispute the entitlement of the respondent to the
disability pension, which is to be calculated at 50%, to be rounded off
to 75%, yet the arrears cannot be paid for the entire intervening
period.
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8. Per contra, Mr. B. S. Sarmal, learned counsel for the respondent
would submit that in the instant case the disability pension was
denied to the respondent on the erroneous decision taken by PCDA in
supersession of the medical opinion and, therefore, no premium can
be put on such illegality by restricting the arrears only to three years
prior to the filing of appeal before the Appellate Authority.
9. Having heard learned counsel for the parties and perused the material
on record, we find that the facts are not much in dispute in this case.
Indisputably, when respondent was invalidated out of army service
on account of disability on 31.12.2000, the Board had assessed his
disability at 50% for two years, attributable to the military service.
The PCDA had no legal right or authority to sit over the opinion of
the Medical Board and deny the disability element of the pension to
the respondent without even seeking fresh opinion from the higher
medical authority.
10. Be that as it may, the PCDA denied the benefit of disability element
of pension to the respondent by taking a view that the disability
suffered by him was neither attributable to nor aggravated by the
military service. This happened in the year 2000 and, therefore, the
cause of action to approach the Appellate Authority or for that matter
competent Court of law accrued to the respondent in the year 2000.
He remained quiet for almost a decade and approached the Appellate
Authority only on 04.05.2011. It is true that the Appellate Authority
found merit in the appeal and directed re-assessment of the
5 WP(C) No. 554/2024
respondent by the Medical Board. The Re-assessment Medical Board
found the respondent suffering from a disability of 50%, to be
rounded off to 75% and attributable to military service. This is how
the petitioners held the respondent entitled to the disability element
of the pension for an initial period of two years i.e. from 31.12.2000.
The respondent was also held entitled to disability pension with
effect from 17.03.2013. The benefit of disability pension for the
intervening period from 01.01.2003 to 17.03.2013 was, however,
denied.
11. It is not in dispute that the respondent approached the Appellate
Authority against the decision of PCDA taken in the year 2000 by
way of an appeal filed on 04.05.2011. Since the appeal was allowed
in favour of the respondent and he was held entitled to the disability
pension, as such, ordinarily, there was no reason or justification to
deny him the benefit of disability pension throughout.
12. However, having regard to the fact that there was some indolence and
negligence on the part of respondent to approach the Appellate
Authority within a reasonable time, the judgment passed by the
Supreme Court in case of Shiv Dass Vs. Union of India & Ors., 2007
(9) SCC 274, decided on 18.01.2007 would become applicable,
restricting the arrears to three years prior to approaching the
authorities by way of an appeal.
6 WP(C) No. 554/2024
13. Without delving much on the issue and having regard to the fair
stand taken by both the sides, this petition is disposed of by directing
as under:-
(i) That the respondent shall be entitled to arrears of disability
element of pension with effect from 04.05.2008 i.e. three years
prior to filing of appeal till 17.03.2013.
(ii) The arrears for the aforesaid period shall be worked out and
released in favour of the respondent within a period of three
months from today, failing which, the same shall become
payable along with interest @ 8% per annum from the date of
this order.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
Jammu
20.08.2025
Vishal Sharma
Whether the judgment is reportable: Yes