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Cause List WP(Civil)No. CASE No. CASE TITLE

Ex. Sgt. Jitendra Kataria
----- O.A. No. : 62/2009 v
Other Links Union of India & Others
Anil Kumar
T.A. No. :
1486 / 2008 v
653/2009
Judgments Union of India & Others
Sepoy Recruit Govind Singh
T.A. No. :
6238 / 2001 v
728/2009
Union of India & Others
Forms Col. Narender Kumar Yadav
T.A. No. :
9262 / 2009 v
117/2009
Chief of Army Staff & Others
Ex. Capt. J. S. Dhillon
T.A. No. :
151 / 1997 v
282/2009
Ex. Maj. Avi Chander Sud
T.A. No. :
821 / 2009 v
712/2009
Brig. V. S. Sukhdial
T.A. No. :
18792 / 2005 v
751/2009
Ex. Rect. Surinder Kumar
T.A. No. :
8412 / 2003 v
104/2010
Manwar Ali
T.A. No. :
9760 / 2010 v
131/2010
Ex. Hav. Surender Kumar
T.A. No. :
4038 / 2006 v
235/2010
Col. Aneel Misra
T.A. No. :
15305 / 2006 v
260/2010
Rakesh Kumar
T.A. No. :
7530 / 2009 v
354/2010
Ex. Hav. Hari Chand
T.A. No. :
8187 / 2010 v
488/2010
Sgt. Dalbir Singh
T.A. No. :
2538 / 02 v
296/2010
Ex. Rect. Shri Pal
T.A. No. :
4899 / 2007 v
368/2010
Air Cmde. S. K. Misra
T.A. No. :
2168 / 2002 v
752/2009
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WP(Civil)No. CASE No. CASE TITLE

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LAC Vikram Trikha
T.A. No. :
302 / 1997 v
724/2009
Nk / Rajesh M.R.
----- O.A. No. : 26/2009 v
Dalip Singh
2936 / 2003 T.A. No. : 41/2010 v
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T.A. No. :
10605 / 2009 v
494/2010
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T.A. No. :
18049 / 2004 v
149/2010
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----- O.A. No. : 44/2009 v
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T.A. No. :
11790 / 2004 v
251/2009
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575 / 2002 T.A. No. : 17/2010 v
Ex. CPL Dhanpal
T.A. No. :
751 / 2009 v
443/2009
Maj. S. D. Singh
2713 / 2003 T.A. No. : 46/2010 v
Maj. Gen. Devendra Nath Verma,
T.A. No. : AVSM (Retd.)
4800 / 1995
255/2009 v
Flying Officer R. K. Aggarwal
T.A. No. :
9023 / 2009 v
510/2010
Smt. Roshni Devi
T.A. No. :
8109 / 2009 v
373/2009
Sepoy Kuldeep Singh Tomar
----- O.A. No. : 52/2009 v
Sh. G. Veerabahu
T.A. No. :
8762 / 2009 v
188/2009
Chief of Air Staff & Others
Smt. Kusum Devi
T.A. No. :
1440 / 2008 v
619/2009
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Capt Aditya Singh
----- O.A. No. : 13/2009 v
Col S K Tiwari
----- O.A. No. : 93/2009 v
Dr. N K Kalia
O.A. No. :
----- v
154/2010
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O.A. No. :
----- v
211/2009
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372/2010
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215/2000 T.A. No. : 79/2010 v
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157/2010
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565/2009
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583/2009
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491/2009
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10544/05 v
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Judgments
Disclaimer
OA No.62/2009
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT

NEW DELHI
O.A. No. 62/2009
Ex Sgt Jitendra Kataria .........Applicant
Versus
Union of India & Others .......Respondents
For applicant: Mr.J.S. Mann, Advocate

For respondents: Mr.Ankur Chibber, Advocate for Ms.Jyoti Singh,
Advocate
CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.
HON’BLE LT. GEN. M.L. NAIDU, MEMBER.
ORDER
08.03.2010
1. Applicant by the present original application has
prayed that respondents may be directed to release remaining
retiral benefits such as individual running ledger account balance
and amount of leave encashment to him. It is also prayed that
respondents may be directed to pay interest @24% per annum
with effect from 31.10.2008 till the date of its payment to applicant
on the amount of DCRG (Rs.1,33,013), capitalized value of
pension (Rs.2,83,375/-) and on amount of leave encashment and
individual running ledger account balance.

OA No.62/2009
2
2. The applicant after putting 20 years of service was
discharged on 31.10.2008 but he could not get his retiral benefits.
He protested and ultimately a PPO was issued on 03.08.2009
giving him retiral benefits in incomplete manner that means it took
almost one year for respondents to release his retiral benefits.
Thereafter, he filed this original application. Leave encashment
and other benefits were released on 12.02.2010, therefore, he
prays that for this kind of inordinate delay he should be
compensated suitably.
3. Learned counsel for the respondents has tried to
justify that the matter has been pursued at different levels,
therefore, it took more than one year to clear his retiral benefits.
4. We have been given to understand that normally in
the defence services when a person retires his all retiral and other
benefits are released to him forthwith. But in the present case it
appears that it has taken inordinate delay in clearing the retiral
benefits. This is not a very happy sign. A person who served long
for the nation had to go from pillar to post and ultimately he had to
lend in the Court to get his retiral benefits. This is definitely a

OA No.62/2009
3
serious harassment. Therefore, in these circumstances, we direct
that applicant is entitled to interest @ 12% from the date of his
retirement till he got the PPO on 03.08.2009 and he is also
entitled to the interest @ 12% on the balance payment which was
determined on 12.02.2010 like leave encashment etc. Authorities
should wake up and see that the incumbent whoever retires
should get its dues within fortnight and inordinate delay should be
avoided. Let the responsibility may be fixed why this delay was
caused. However, applicant is entitled to interest at the rate as
aforesaid and he is also entitled to cost of Rs.10,000/- for being
harassed for going pillar to post and resort to litigation.
5. The present original application is disposed of
accordingly with costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 08, 2010.
TA No.653/2009
1

NEW DELHI
T.A. No. 653/2009

[W.P. (C) No. 1486/2008 of Delhi High Court]
Anil Kumar .........Petitioner

Versus
Union of India & Ors. .......Respondents
With
T.A. No. 665/2009

Ex Rect Ashok Ahlawat .........Petitioner

Versus
In TA No.653/2009
For petitioner: Sh.S.M. Dalal, Advocate
For respondents: Sh.Ankur Chibber, Advocate
In TA No.665/2009
For petitioner: Col.S.R. Kalkal(Retd.), Advocate
CORAM:
TA No.653/2009
2
ORDER
09.03.2010
1. The both petitions have been transferred from Hon’ble
Delhi High Court to this Tribunal on its formation.
2. Both these two petitions involve identical question of
law, therefore, both are disposed of by the common order.
3. For convenient disposal of both petitions facts given in
T.A. No. 653/2009 titled „Anil Kumar v. Union of India & Ors.‟ are
taken into consideration.
4. Brief facts which are necessary for disposal of this
petition are that petitioner was enrolled in Army as a Sepoy on
22.08.1966 and while in service, contracted the disease known as
Tuberculosis. He was invalided out of service on 18.05.1997 in
medical category EEE. His disability was assessed as 100% and
held attributable to military service. Thereafter, he started
receiving disability pension and he thus acquired the status of
‘pensioner’ and ‘ex-servicemen’. The Government of India vide
its notification dated 30.12.2002 sanctioned a scheme knows as

TA No.653/2009
3
Ex-servicemen Contributory Health Scheme (in short ECHS) to
cater to the health care of the pensioners. The main objective of
this scheme is „to provide succour to pensioners, their wives,
widows and authorized dependents and bring ECHS in line with
medical schemes applicable to Central Government employees of
other categories‟. Petitioner after release from Army got married
in the year 1998 and he applied to become the member of this
scheme and he was enrolled as member of this scheme including
his dependents i.e. wife, son, daughter and mother with effect
from 21.09.2003. Thereafter, on 21.07.2006, he took his minor
son at ECHS Poly Clinic Jhajjar for treatment but he was refused
medical treatment on the plea that his dependents were no longer
entitled to receive treatment under the scheme. Therefore, he
filed a representation to the Managing Director, ECHS on
27.07.2006 against the refusal of benefit of this scheme to the
dependants but the same was rejected on 04.08.2006 on the
ground that as per policy dependents of ex-recruits who are
earning disability pension are not permitted to be included in the
ECHS benefits. Therefore, he sent a legal notice through his
counsel to respondent no.2 on 31.07.2007. The respondent no.2
replied the said legal notice on 28.08.2007 denying him the

TA No.653/2009
4
benefit of the scheme. Hence, he filed the present writ petition
before the Hon'ble Delhi High Court which has been transferred to
this Tribunal on its formation challenging the denial of benefit of
the scheme to him.
5. A written was filed by the respondents wherein they
took the position that petitioner is not entitled to the benefit of the
scheme as he has been wrongly given the smart card.
6. Learned counsel for petitioner has invited our attention
to the scheme which was introduced by the Government of India
vide notification dated 31.12.2002. The highlights of this scheme
are as under:-
1. I am directed to convey the sanction of the Government for a

health care scheme for Ex-Servicemen namely ‘Ex-Servicemen
Contributory Health Scheme (ECHS).
2. The Scheme would cater for Medicare of all Ex-Servicemen in
receipt of pension including disability pension and family
pensioners, as also dependants to include wife/husband,
legitimate children and wholly dependent parents. The Scheme
will compromise as follows:-
(a) ECHS would be a contributory Scheme. On retirement,
every Service personnel will compulsorily become a
member of ECHS by contributing his/her share and the
Scheme would be applicable for life time. Similarly Ex-
Servicemen who have already retired can become
members by making a one time contribution. There
TA No.653/2009
5
would be no restriction on age or medical condition. The

contribution will be according to the rates prescribed for
CGHS pensioners as per Appendix-A attached.
(b) Retired personnel joining the scheme will forfeit the
medical allowance of Rs.100/- presently admissible to
them and those who do not join the Scheme would
continue getting Medical Allowance as hithertofore. Such
persons would not be entitled to any medical facility from
Armed Forces Clinics/Hospitals or Polyclinics set up under
the Scheme.
7. The scheme lays down details that is who shall be
eligible and how benefit will be given to the dependents i.e wife,
children and parents to a particular financial limit. The chapter-I
deals with ‘eligibility condition’ as detailed in clause 1 which says
that in order to become the member of this scheme one should
have the status of ex-servicemen and he should be drawing
normal service/disability/family pension. The clause 6 defines
‘Ex-servicemen’ which says that an „ex-servicemen‟ means a
person, who has served in any rank whether as a combatant or
non combatant in the Regular Army, Navy and Air Force and who
retired from such service after earning his pension or who has
been released from service on medical grounds attributable to
military service or circumstances beyond his control and awarded
medical or other disability pension or who has been released,
otherwise than on his own request from such service as a result of

TA No.653/2009
6
reduction in establishment or who has been released from
services after completing the specific period of engagement. It
also included the personnel from Territorial Army. The expression
‘Pension’ is also defined in clause 12 which says that the word
“pension” implies any type of pension received from Controller of
Defence Accounts (Pensions) or its subordinate offices. The
clause 14 deals with ‘Eligibility Status for Dependents’ says that
Father and Mother of the pensioner shall be deemed to be
dependent if they normally reside with the ESM pensioner, and
their combined income from all sources is less than Rs.2550/- per
month and ‘Spouse’ means legally wedded wife but her name
should be included in the record of service. The sub clause 6 of
clause 14 says that in case the ESM pensioner marries after
retirement he will be required to furnish the marriage certificate
and the application form for enrolling spouse as a dependent and
Part II Orders/Gen Form/Personal Occurrence published.
Unmarried daughters are also made entitled and for children, he
will be required to furnish the birth certificate and on fulfilling all
these conditions, a smart card will be issued to them. After
completing all necessary formalities as indicated above, petitioner
was granted this benefit by issuing smart card on 21.09.2003 but

TA No.653/2009
7
it was sought to be revoked by the order dated 28.08.2007 when
petitioner sent a legal notice to the respondent that as per the
policy a recruit who is in receipt of medical/disability pension is
alone eligible to join ECHS. However, the recruit who was
married prior to his discharge is permitted to have his wife and
children as his dependent. The case of recruits who had joined
ECHS prior to the issue of policy, were reviewed accordingly.
That means as per second thought given by the respondents, they
came to the conclusion that recruit alone is entitled to the benefit
of the scheme and not his dependents including children, father
and mother.
8. We have heard learned counsels for the parties at
length and found that this change of opinion by the respondents
by an administrative action cannot change the scheme which has
been framed by the Government of India. A Scheme was framed
by the Government of India vide Notification dated 30th December,
2002 and in the Scheme there is no prohibition that a person who
is already holding the disability pension marries subsequently then
his dependents cannot be made eligible for the benefit of scheme.
This change of opinion appears to be at the administrative level

TA No.653/2009
8
and not at the level of Government of India. Once the decision
has already been taken and in pursuance to that a formal scheme
has already been formulated in detail and it does not prohibit in
any manner a person who is an Ex-Serviceman marrying
subsequently and out of that wedlock if certain children are born
and the parents are there, he will not be entitled to the benefits of
the scheme. There is no such prohibition in the scheme.
9. Our attention is invited to the letter dated 01.02.2006
issued by the Ministry of Defence for grant of Ex-servicemen
status to the boarded out on medical ground with disability
pension and in that it is clearly mentioned that it has been decided
that such recruits who were boarded out/released on medical
grounds and granted medical/disability pension will also be
covered under the category of ex-serviceman for all practical
purposes. The Office Memorandum dated 01st February, 2006
reads as under :-
No. 12/I/2005/D (Respondent)

Government of India
Ministry of Defence
(Deptt. Of Ex-servicemen Welfare)
New Delhi, dated the 01st February, 2006
OFFICE MEMORANDUM
TA No.653/2009
9
Subject:- Grant of Ex-servicemen status to recruits boarded out

on Medical grounds with disability pension.
The undersigned is directed to say that requests are being

received from various sources to issue a clarification as to whether
the recruits who are boarded out during the course of the training
on medical grounds and granted medical/disability pension should
be given the status of an ex-serviceman.
2. The matter has been carefully examined while keeping in view

the following facts :-
(i) a recruit is an enrolled person under Section 11 of the

Army Act,
(ii) his training period is treated as physical service and
counted for pensionary purposes,
(iii) he can be deployed in aid to civil authorities during the
course of his training,
(iv) after completion of the training he gets the pay of a
soldier with arrears for the entire training period; and
(v) recruits getting injured and released/boarded out from
service are granted medical/disability pension.
3. It has accordingly been decided with the approval of Raksha

mantra that such recruits who were boarded out/released on
medical grounds and granted medical/disability pension will also be
covered under the category of ex-serviceman for all practical
purposes.
(A.K. Upadhyay)
Joint Secretary to the Government of India
Tele : 23011804
To
1. All Ministries/Departments of the Govt. of India
2. All Joint Secretaries in the Ministry of Defence
3. DGR/Secretary, KSB.
10. In view of the categorical decision of the Government
of India and especially Ministry of Defence letter with regard to
this scheme, we fail to understand how a small employee of the
Government of India can over ride the authority of the

TA No.653/2009
10
Government and issue his own clarification and impose certain
prohibitions which are not contemplated. This action of the
respondents is absolutely illegal and against the scheme as well
as the decision of the Government of India as quoted above. We
allow the petition and set aside the order dated 28.08.2007
depriving the benefit of scheme to the petitioner and his family
including his son, daughter and aged parents. Petitioner will be
entitled to all benefits of the scheme as per the Smart Card
already issued to him.
11. On similar reasoning we allow the petition Ex Rect
Ashok Ahlawat v/s. Union of India & Ors. (TA No.665/2009) and
quash the impugned order. Both petitions are allowed with no
order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 09, 2010.
TA No.728/2009
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH

AT NEW DELHI
TA No.728/2009
[WP (Civil) No. 6238/2001 of Delhi High Court]
Sepoy Recruit Govind Singh .........Petitioner

Versus
For petitioner: Retd. Capt. Virender Kumar, Advocate.

For respondents: Sh. Anil Gautam, Advocate.
CORAM:

ORDER
10.03.2010
1. The petitioner in this case has prayed for quashing of
the impugned discharge order under Army Rule 13 (3) IV of 12th
January, 1996, discharging the petitioner after 1 year, 8 months
and 17 days of service. It is further prayed that the respondents
may be directed to reinstate the petitioner in service in a sheltered
appointment and to declare the disability as attributable to military
service.
TA No.728/2009
2
2. The petition was filed in the Delhi High court as W.P.
(C) No. 343/98 and has been transferred to the Tribunal on
12.01.2010.
3. The petitioner was enrolled in the Army on 25th April,
1994 in the EME. Having successfully completing the Phase 1 of
the Training he graduated in Phase II of Advance Training in
October, 1994. On 15th April, 1995 while attending training he
sustained a fall and in the incident suffered an injury on the head.
4. Since he was unwell, he reported sick on 15th May,
1995 and was transferred to Command Hospital, Pune where he
underwent an operation on 28th May, 1995. He was discharged
from the hospital and sent on sick leave.
5. On termination of the leave, petitioner underwent
further medical check-up and treatment. He was invalided out of
service on 12th January, 1996.

TA No.728/2009
3
6. The petitioner was informed on 20th January, 1997 by
the EME Record Office, Secundrabad that his ID was neither
attributable nor aggravated by service. Hence no disability
pension was admissible to him.
7. The petitioner explored all the departmental remedies
before approaching the Hon’ble High court at Delhi.
8. The learned counsel for the petitioner argued that the
Medical Board proceedings were provided by the respondents
only alongwith the Counter Affidavit filed by them. Examination of
the proceedings dated 05th December, 1995 reveal that at
paragraph 5 which states “In case of wound or injury, state how
they happened and whether or not (a) Medical Board or Court of
Inquiry was filed (b) Injury Report was submitted.” The response
was “Yes”. The request for providing a copy of the Inquiry Report
has not been met till date. Apparently the medical condition of the
petitioner came about due to this injury sustained by him while
undergoing training on 15th April, 1995.

TA No.728/2009
4
9. The learned counsel for the respondents argued that
going by the opinion of the Neuro Surgeon, the individual was
suffering from “(a) Multiple Calcific Modules distributed throughout
the brain parenchyma (b) Multiple Cystic Lesions present in the
left paretal region causing compression of ventricles and minimal
midline shift”. He was operated upon at Command Hospital, Pune
for “left paretal osteoplastic craniotomy and excision of left paretal
cyst.” The Neuro Surgeon further opined that “the presence of
Calcific nodules is an indicative of the fact that the disease is long
standing and hence not attributable to service.”
10. Having heard both the learned counsels we sought the
proceedings of the Court of Inquiry. The respondents were unable
to produce the same.
11. The fact that the petitioner developed the symptoms of
the Invaliding Disease after 15th April, 1995 is apparent from the
case history written by the Neuro Surgeon on 13th September,
1995. It is also clear that the medical condition in which presence
of Calcific nodules in the brain is indicative of a long standing
disease.
TA No.728/2009
5
12. It is evident that though the medical condition perhaps
existed even on the date of enrolment of the petitioner on 25th
April, 1994, but was dormant. It remained so dormant during the
Phase-I of the training and it was suddenly triggered off after the
injury on 15th April, 1995. This brings us to the question as to
whether or not the invaliding disease was triggered off on 15th
April, 1995, the date of accident while undergoing training.
13. We are of the considered opinion that the Invaliding
Disease of the petitioner was aggravated by the injury suffered by
him while undergoing Phase-II of the training on 15th April, 1995.
In the absence of the Inquiry Report/Court of Inquiry proceedings,
which was held as per the Invaliding Medical Board proceedings,
it is reasonable to assume that the Invaliding Disease was
aggravated by military service.
14. However, the medical condition of the petitioner is
such that his prayer of reinstatement in the Army is not
acceptable. The petitioner has just put in 1 year 8 months 17
days, and to expect the Army to provide a sheltered appointment

TA No.728/2009
6
till the end of the terms of engagement, is also not reasonable.
Hence we reject these both the prayers of the petitioner.
15. We opine that the Invaliding Disease be treated as
aggravated by military service and whatever financial benefits are
due to petitioner may be worked out and paid to the petitioner with
interest @ 12% within 90 days of this order. Petition is disposed
of. No order as cost.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 10, 2010.
TA No.117/2009
1

NEW DELHI
T.A. No. 117/2009
[WP(C) No.9262/09 of Delhi High Court]
Col Narender Kumar Yadav .........Petitioner

Versus
Chief of Army Staff & Ors. .......Respondents
For petitioner: Sh.Viraj R. Datar, Advocate with Sh.Krishanu

Adhikary, Advocate.
For respondents: Maj Ajeen Kumar
CORAM:

ORDER
12.03.2010
1. The present petition has been transferred from
Hon’ble Delhi High Court to this Tribunal on its formation.
2. Petitioner by this writ petition has prayed that order
dated 27.08.2008 as well as corrigendum PPO No.M/Corr./
006051/2007 may be quashed and instructions may be issued to

TA No.117/2009
2
his bank for not withholding his residual pension @Rs.8,273/- per
month.
3. Brief facts which are relevant for the disposal of
present writ petition are that petitioner retired from Indian Army on
attaining age of superannuation on 28.02.2006 but his retiral
benefits were not paid to him. It is alleged that a Disciplinary
Vigilance (DV) Ban was imposed on the petitioner on 13.07.2006,
therefore, he could not get all his retiral benefits and even
recovery from his pension was sought to be made under the
orders of the respondents directing his bank to recover an amount
from his pension. Petitioner thereafter filed the present writ
petition before the Hon'ble Delhi High Court alleging that since he
has already retired on 28.02.2006 and more than 3 years have
been elapsed, therefore, no disciplinary action or otherwise can
be initiated against the petitioner as per Section 123 of Army Act,
1950. Notices were issued by the Hon'ble Delhi High Court and
recovery was stayed. The case was transferred to this Tribunal
on its formation.
TA No.117/2009
3
4. A reply was filed by the respondents and respondent
only took the position that since there was a DV Ban against the
petitioner, his post retiral benefits could not be finalized and they
invoked Rule 3-B of the Pension Regulations for the Army, 1961,
Part-I which empowers the respondents to reserve their right to
withhold or reduce the pension of a personnel against whom any
departmental or judicial proceedings are pending or instituted after
retirement in respect of an event which took place not more than 4
years before such institution. But there is no whisper with regard
to what action has been taken in pursuance of DV Ban imposed
on 13.07.2006.
5. Learned counsel for the petitioner submitted that after
issuance of DV Ban no action has been taken against the
petitioner and more than three years have been lapsed, therefore,
petitioner is entitled to all retiral and other benefits. It is also
submitted that action of the respondents is highly arbitrary as
except issuing the DV Ban on 13.07.2006, they did not initiate any
further action in the matter. Therefore, the action of the
respondents withholding his post retiral benefits was absolutely
arbitrary.
TA No.117/2009
4
6. As against this, Maj Ajeen Kumar appearing on behalf
of respondents has invited our attention to a signal communication
received from Headquarters, Western Command in which it has
been mentioned that DV Ban in respect of Col. Narender Kumar
Yadav (Petitioner) has been lifted vide Indian Army Letter
no.C/06290/WC/461/NKY/AG/DV-2 JAN 14. The message is
reproduced as under :-
“TA NO 117/2009 (CWP 9262/2009) COL. NARENDER

KUMAR YADAV (RETD) VERSUS UOI AND OTHERS REGD
NO. 46/1377/AFT CASE HEARED FEB 25 (25) BEFORE
COURT NO. ONE AFT BENCH NEW DELHI (.) REF YOUR A-
2541 FEB 27 (27) DV BAN IN RESPECT OF COL. NARENDER
KUMAR YADAV (RETD) HAS BEEN LIFTED VIDE INDARMY
(DV-2) LETTER C/06290/WC/461/NKY/AG/DV-2 JAN 14 (14)
(.) FOR INFO AND NECESSARY ACTION (.) ALL ADD.”
7. Therefore, now after lifting of the DV Ban nothing
remains against the petitioner and petitioner is entitled to all post
retiral benefits and whatever recovery has been made by the
Bank, is also entitled to be refunded back to him.
8. We are very unhappy after going through the record of
this case. The action taken by the respondents is not at all
warranted and the way they have dilly dallied the matter speaks
itself that all is not well with the working. If the DV Ban was to be
TA No.117/2009
5
seriously pursued then they had to initiate some departmental or
criminal action against the petitioner as deemed necessary. First
issuing the DV Ban against the person who is retiring and then not
pursuing the matter further and harassing the person and force
him to go from pillar to post is unfair and illegal.
9. We allow this petition and direct that all the retiral
benefits should be released forthwith and the money recovered by
the Bank shall be released immediately to him as nothing remains
against the petitioner. All orders passed by the PCDA, Allahabad
are quashed. Petitioner’s retiral benefits should be released
within a period of three months from today. Arrears should be
paid to the petitioner with interest @ 12% per annum. Petitioner is
also entitled to the cost of Rs.10,000/- from the respondents.
10. The petition is accordingly allowed with costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 12, 2010.
TA No.282/2009
1

NEW DELHI
T.A. No. 282/2009
Ex Capt J.S. Dhillon .........Petitioner

Versus
For petitioner: Sh.Mohan Kumar, Advocate
CORAM:

ORDER
12.03.2010
2. The only short question involved in the present petition
is with regard to calculation of pension, whether his 2/3rd Non
Commissioned Service is to be counted for the purpose of
pension or full period should be counted for the pension.

TA No.282/2009
2
3. Petitioner was enrolled in the Army Medical Corps on
04.09.1961 as Non Commissioned Officer and he served in the
ranks from 04.09.1961 to 06.09.1971. Thereafter, he was granted
short service commission. He was dismissed from services on
03.03.1983 as a Captain. He was not granted pension because
he has not completed 20 years of qualifying service. As per order
dated 21.06.1995, it was mentioned that since the petitioner
served in other ranks from 04.09.1961 to 06.09.1971 i.e. 10 years
and 3 days, therefore, only 2/3rd of service is counted for the
purposes of qualifying service for pension that comes to 6 years
and 240 days and he has put in 11 years and 178 days as
commissioned service. This total period comes to 18 years and 45
days (55 days). Therefore, he was not eligible for pension but he
was granted 50% gratuity by the order dated 28.06.1994. Now
petitioner’s grievance is that by not counting his non
commissioned service fully, he could not complete qualifying
period of 20 years for full pension. It is submitted that in view of
subsequent amendment now full service period is to be counted
for pension. Our attention was invited to Regulation 26 of Pension
Regulations for the Army, 1961. The relevant portion read as
under:-
TA No.282/2009
3
(a) Commissioned Service- Service as permanent regular

commissioned officer and if it is preceded without a break
previous service as commissioned officer in the Indian
Army, Navy and Air Force, irrespective of the type of
commission, jointly or severally, subject to the refund in the
prescribed manner to the Government, of the gratuity, if
any, other than war gratuity, received in respect of such
service.
Provided that
(i) Any service which was forfeited by special orders,
and
(ii) Any period of unauthorised absence unless pay and
allowances are admitted for the period of absence.
Shall not be regarded as qualifying service, nor any period
of antedate except as provided in clause (9).
(b) Service in ‘’’he Rank Below that of

Commissioned Rank- Service Armed Forces in the rank
below that of commissioned officer, if followed by
permanent regular commissioned service without a break,
subject to the refund in the prescribed manner of the
Government of the gratuity, if any, other than war gratuity,
received in respect of such service.
4. As per aforesaid provision now the whole period shall
be counted for qualifying service. Clause (b) says that Service
Armed Forces in the rank below that of commissioned officer, if
followed by permanent regular commissioned service without a
break, subject to the refund in the prescribed manner of the
Government of the gratuity, if any, other than war gratuity,
received in respect of such service. If that is to be taken into
consideration then 10 years and 3 days period of non
commissioned service i.e. 04.09.1961 to 06.09.1971 and

TA No.282/2009
4
commissioned service of 11 years and 178 days that makes it to
21 years, 5 months and 29 days that entitles him to full pension.
The respondents has decided the matter on the basis of earlier
unamended provision of law but this Section 26 now enable the
petitioner to count his full non commissioned service for the
purposes of qualifying service of 20 years for pension. Therefore,
the order dated 21.06.1995 is set aside and respondents are
directed to reconsider the case of petitioner for grant of pension
on the basis of regulation 26 as stated above. However, the
amount of gratuity which has been paid to the petitioner shall be
refunded in case he has collected. The entire arrears should be
worked out within 3 months from today and be paid to the
petitioner with 12% interest.
5. The petition is allowed with no order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 12, 2010.
TA No.712/2009
1

NEW DELHI
T.A. No. 712/2009
Ex Maj Avi Chander Sud .........Petitioner

Versus
For petitioner: Ms.Ritu Bhardwaj, Advocate
For respondents: Sh Aseem Chaturvedi, Advocate, for Ms.Kanika

Agnihotri, Advocate with Capt Alifa Akbar and
Maj Ajeen Kumar.
CORAM:

ORDER
12.03.2010

TA No.712/2009
2
2. Petitioner by this writ petition has prayed that a writ of
mandamus be issued setting aside the order dated 01.07.2008
and he may be considered as having been invalidated from
service and be awarded disability pension along with disability
element and other associated benefits like medical cover for life
as the injuries sustained were attributable to military service as
well as military training and the disability is degenerative in nature.
present writ petition are that petitioner was enrolled at the National
Defence Academy, Khadakwasla, Pune in June, 1990 as an
officer Cadet. While undergoing training, he sustained injury in his
right knee on 16.07.1992. He was treated at Military hospital,
Kirkee, Pune. Due to said injury, he was relegated by 6 months in
service. Again on 06.04.1994, during an organized physical
training at Indian Military Academy, Dehradun, he suffered
another injury in same right knee and was treated at Military
Hospital Dehradun. Again he was relegated in service by 6
months due to said injury. The condition of the petitioner was
medically uneventful for more than 10 years. Again during Military

TA No.712/2009
3
training at Army War College, MHOW, he slipped from a hill and
twisted his same right knee due to rough terrain and slippery
condition. Again on 03.11.2005 and 08.03.2006 during unit
activity in field, his same right knee was hurt and he was advised
by the Duty Medical Officer at 165 Military Hospital, Dimapur,
Nagaland to take rest and avoid any rigorous physical activities.
On 2nd and 3rd November, 2006, he was again treated for painful
and swollen right knee at 174 Military Hospital, Bathinda.
However, his condition deteriorated and ultimately, he applied for
premature retirement from service on the ground of compassion,
recurrent medical problems and stagnation in service. The
Authorities considered his request of premature retirement
sympathetically on 17.08.2007. The release Medical Board had
assessed his disability at 30% for life and he was voluntarily
discharged from services with effect from 26.02.2008. Thereafter,
his case was sent to Medical Board who while recording 30%
disability categorically mentioned that his disability is attributable
to military service but he was not granted benefit of disability
pension as he has sought voluntarily retirement and in this
connection reference was made to Regulation 50. Therefore,
petitioner filed the present writ petition before the Hon'ble Delhi
TA No.712/2009
4
High Court with aforesaid reliefs. This petition has been
transferred to this Tribunal on its formation.
4. A reply was filed by the respondents wherein they took
the position that since petitioner took voluntarily retirement, he is
not entitled to benefit of disability pension as per Regulation 50.
5. We have heard learned counsels for the parties and
perused the record.
6. We may straight away say that rigour of Regulation 50
has already been watered down by the communication issued by
the Ministry of Defence dated 29th September, 2009. The relevant
para of said order reads as under :-
“In view of the recommendation of Sixth Central Pay

Commission, Armed Forces Personnel who are
retained in service despite disability, which is
accepted as attributable to or aggravated by Military
Service and have foregone lump-sum compensation
in lieu of that disability, may be given disability
element/war injury element at the time of their
retirement/discharge whether voluntary or otherwise
in addition to Retiring/Service Pension or
Retiring/Service Gratuity.”
TA No.712/2009
5
In view of the fact that rigour of Regulation 50 has been watered
down and similar view has been taken by us in the matter of Brig.
K.K. Khajuria (Retd.) Vs. Union of India & Others – T.A. No.
176/2009. Therefore, this objection now in the changed scenario
cannot be sustained. Consequently, we set aside the order
passed by the Authorities and allow the petition and direct that
petitioner shall be entitled to the disability pension along with
retiral benefits which are admissible to the petitioner in the light of
order dated 29th September, 2009 with interest @12%. Petition is
accordingly allowed. No order as to costs.
7. Learned counsel for the respondents submits that
petitioner has already received a lump sum gratuity for the
disability. In case such amount has been paid to the petitioner
then that amount shall be adjusted.
8. Learned counsel for the petitioner submits that
petitioner’s injury is a degenerated and therefore, petitioner
requires to have a Medical Board for the medical cover for life.
TA No.712/2009
6
Petitioner may apply for the same and authorities may consider
the matter sympathetically.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 12, 2010.
TA No.751/2009
1

NEW DELHI
T.A. No. 751/2009
Brig V.S. Sukhdial ........Petitioner

Versus
For petitioner: Sh.V. Shekhar, Sr. Advocate with Sh.S. Ganesh,

Advocate and Ms.Deepakshi Jair, Advocate.
For respondents: Ms. Anjana Gosain, Advocate with Lt Col S.

George.
CORAM:

ORDER
16.03.2010
2. Petitioner by this writ petition has prayed that CR for
the period June, 1992 to July, 1993 be expunged and quashed

TA No.751/2009
2
being totally biased and inconsistent and similarly the CR for the
period July, 2000 to July, 2002 may also be expunged and he
may considered afresh for promotion to the rank of Major General.
present writ petition are that petitioner was commissioned in the
Indian Army in 1 Dogra, as a Third Generation Soldier. He has
commanded 80 Infantry Brigade and he has faced several
challenges and hazards when the Brigade was deployed on a
highly active Line of Control. Under his command in 2000-01, the
two units were decorated with COAS Citation and several awards
like VrC, SC, SM, VSM were earned by the various personnel of
the Brigade. He was awarded with YSM. The Selection Board
no.1 for promotion from Brigadier to Major General was held on
18-19th September 2003. He was screened as a fresh case. On
20.02.2004, he was informed about his non selection. He filed a
non statutory complaint to the Chief of Army Staff on 17.02.2004
in which he sought a redress that his ACR initiation by the IO in
1991-92 be totally expunged and CRs initiated during July 2000-
02 be scrutinized in the light of facts mentioned in the petition and
the report of RO and SRO be expunged on the grounds of

TA No.751/2009
3
subjectivity and inconsistency and he may be considered as a
fresh case by Selection Board no.1. Vide letter dated 16.06.2004,
the respondents granted partial redressal to him wherein certain
portions of the CR for the period from July 2000 to June 2001 and
CR for the period July 2001 to November 2001 were expunged on
the grounds of inconsistency. The petitioner was again rejected
for promotion in Special Review Board held in October, 2004 and
the results were communicated to him vide letter dated
21.02.2005 whereby he was informed that he is not able to make
up. Aggrieved by this, he approached the Hon'ble Delhi High
Court by filing writ petition with aforesaid reliefs and the case was
4. A reply was filed by the respondents and they
contested the matter.
5. We have heard learned counsel for parties. Original
record was also placed before us and we perused the record. We
find that adverse entry of 1992-93 was expunged in the year 1994
and ACR for the year 2000-01 was expunged on 16.06.2004.
After expunging all the remarks his case was again considered by
TA No.751/2009
4
the Selection Board and the Selection Board did not find him
suitable to be promoted to the post of Major General. After going
through the original record, we are of the opinion that view taken
by the Selection Board in the given circumstances appears to be
justified and there is no reason for us to set aside the same as
comparative assessment made by the Selection Board has to be
accepted unless it is vitiated being malafide of the member of
Selection Board. Therefore, we do not find any merit in the
petition. Same is dismissed. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 16, 2010.
TA No.104/2010
1

NEW DELHI
T.A. No. 104/2010
Ex Rect Surinder Kumar .........Petitioner

Versus
For petitioner: Brig B.S. Taunque (Retd.), Advocate

CORAM:

ORDER
10.03.2010
2. Heard learned counsel for parties.
present writ petition are that petitioner recruited in the Army on

TA No.104/2010
2
10.10.1999 and after 19 weeks rigorous training, subjected to
medical examination at MH Jabalpur along with all other recruits
of his batch. He was admitted to MH Jabalpur and administered
some treatment for 7 days. He was discharged from hospital and
declared medically unfit for Army services. He was finally
discharged from Army on medical grounds under Army Rule 13(3)
Item III (iii). Petitioner has challenged his discharge by filing the
present writ petition before the Hon'ble Delhi High Court which
has been transferred to this Tribunal on its formation.
4. Respondents filed the reply. In reply they pointed out
that petitioner was found to be suffering from ‘Palmoplantar
hyperhidrosis’ and he was clinically diagnosed by the
Dermatologist and then by Senior Dermatologist at MH Jabalpur
and it was found that he will not make a good soldier. Since
during his training period itself it was found that he is suffering
from aforesaid disease and that he will not make a good soldier,
he was discharged from service. Therefore, he is not entitled to
benefits following from discharge or alternatively in view of
decision given by Hon’ble Punjab & Haryana High Court wherein
incumbent was sent for review medical Board.

TA No.104/2010
3
5. We seen the original record and after going through
the same, we are satisfied that during course of training period,
petitioner was found to be suffering from ‘Palmoplantar
hyperhidrosis’ disease which is constitutional one and has nothing
to do with the military service. Consequently, the petition is
dismissed with no order as to costs.
6. Copy of this order may be sent to the petitioner at his
residential address i.e. Sh.Surinder Kumar, s/o. Sardaru Ram, r/o.
Village & P.O. Andreta, Tehsil Palampur, Distt. Kangra (Himachal
Pradesh).
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 10, 2010.
TA No.131/2010
1

NEW DELHI
T.A. No.131/2010
Manwar Ali .........Petitioner

Versus
For petitioner: Sh.Rajiv Manglik, Advocate
CORAM:

ORDER
15.03.2010
2. Petitioner by this writ petition has prayed that he is
illegally denied the benefit of disability pension despite the fact

TA No.131/2010
2
that injury is attributable to Military Service and assessed as 20%.
Therefore, petitioner has prayed that orders dated 03.09.2007 and
17.12.2004 passed by the respondents may be quashed and
respondents may be directed to release the disability pension with
interest.
present writ petition are that petitioner joined the Indian Army on
13.10.1961 as Sepoy after being declared medically fit. He was
posted to the 5th Battalion of the Grenadiers. During 1964 his
battalion was located a Kalingpong. In September/October, 1964,
he was detailed by the Company Havildar Major to go along with
team, comprising of GD Rawat Khan and GD R.Munshi Khan etc.
to Kalingpong Depot for collection of wood in the vehicle detailed
for the purpose. While returning from Kalingpong depot after
collection of wood, the vehicle was halted enroute for some rest
and tea break. The petitioner saw a detonator lying under a
culvert at the location of the break and presuming it to be a
sabotage to blow up the culvert, lifted the detonator and shown it
to GD Rawat Khan and intimating that it was a live detonator. At

TA No.131/2010
3
that moment, the detonator blasted and petitioner’s left hand went
in the air and he fell unconscious. He was carried and brought
back to the unit lines. After first aid, he was shifted to Kalingpong
hospital. During treatment at said hospital his ring finger and little
finger were amputated and earlier during the blast the thumb and
middle finger of the left hand were blasted off. He was treated at
MH Kalingpong for about 2 weeks and thereafter, shifted to MH
Siliguri where his left hand was again operated. He was again
shifted to MH Lucknow where again his left hand was operated
and skin grafting of his left hand was also done and subsequently,
he was shifted to GH Lucknow. He was later sent to Grenadier
centre along with a Nursing Assistant and discharged on
03.01.1965. He received the discharge certificate signed on
19.09.1990. The record office of the Grenadiers vide letter dated
28.12.1990 directed the petitioner to undergo Resurvey Medical
Board and it was held on 05.02.1991 at MH Jaipur and he was
declared 20% disabled due to blast injury. He was not given
disability pension and his case was forwarded by the OIC Unit but
PCDA(Pension) has rejected his claim for disability pension as the
injury is neither attributable nor aggravated by the Military service.
It is alleged that no Court of Inquiry was conducted by the unit.

TA No.131/2010
4
The petitioner approached the Pension Adalat held at Jaipur and
presented his documents as available with him. He was assured
by the Brig S.K. Gulati and Sh.N.S Yadav (from CDA pension) for
favourable action. However, respondent no.3 intimated the
petitioner vide letter dated 03.09.2007 that his case for granting
disability pension was rejected by Ministry of Defence vide letter
dated 17.12.2004 being time bared and hence, his case was
closed. Therefore, he approached the Hon'ble Delhi High Court by
filing present writ petition with aforesaid reliefs. This petition has
been transferred to this Tribunal on its formation.
4. A reply was filed by the respondents wherein they
have admitted more or less all the facts and submitted that
petitioner was detained for duty for collection of fire woods and he
picked up a live detonator to find out a sabotage which resulted in
blast of the detonator. It is also admitted that all the papers were
sent to PCDA, Allahabad by the Unit but without any result and
PCDA, Allahabad rejected the claim.

TA No.131/2010
5
5. The long and short of story is that OC Unit has found
that the injury was on account of the blast of detonator when
petitioner was detained for collection of fire woods. It is different
thing whether he should have picked up detonator or not but the
fact remains he was on duty and he found a live detonator and as
a good soldier he picked up the same to find out why this
detonator was placed near culvert under suspicious
circumstances but unfortunately it was blasted off because a
match stick was burnt by his colleague. It is absolutely wrong to
say that it is not attributable. A man has lost his thumb and
fingers and still justification is sought to be given that it is not
attributable to Army. It is far from correct. We hold that since the
OC Unit has certified that because of the blast of detonator while
he was on official duty and Medical Board also certified the same
that it is attributable to Army service, consequently, there is no
justification for PCDA, Allahabad to reverse the findings of the OC
Unit as well as Medical Board and take a contrary view.
6. We allow this petition and set aside the orders dated
03.09.2007 and 17.12.2004 and direct that the petitioner should

TA No.131/2010
6
be paid disability pension assessed by the Medical Board @ 20%.
All the amount shall be calculated and released to the petitioner
with interest @ 12% within three months from today. Petition is
accordingly allowed. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 15, 2010.
TA No.235/2010
1

NEW DELHI
T.A. No.235/2010
Ex Hav Surender Kumar .........Petitioner

Versus
For petitioner: Sh.Manish Kumar Singh, Advocate
CORAM:

ORDER
15.03.2010
2. Petitioner by this writ petition has prayed that a writ of
mandamus be issued directing the respondents to grant disability

TA No.235/2010
2
pension to the petitioner from the date of his discharge i.e. with
effect from 01.07.2005 from the Army after declaring to the effect
that the disease i.e. Bronchial Asthma which resulted in him being
downgraded to medical category P-2 by Release Medical Board
assessing the disability to the extent of 30% was attributable to
Military service and further prayed to quash the orders dated
10.08.2005 and 08.12.2005 denying the disability pension to him.
present writ petition are that petitioner was enrolled in Indian Army
on 31.01.1987 as Technical Assistant after successfully
completing basic and trade training at R.T. Centre, Hyderabad for
a period of 52 weeks. He was posted to 165 Field Regiment,
Amritsar in March, 1988 and from there his unit moved to Kargil
area (J&K) which is a high altitude area and remained there for a
period of two years and from there his regiment again moved to
Meerut, U.P. in 1991 where he remained posted upto 1995. In
August, 1995 his Regiment moved to Silliguri, Assam and he
remained posted there for about 3 years. Again in the year 1998,
he was posted to J&K and remained there for a period of about 3

TA No.235/2010
3
years in Sambha Area. In the year, 2001, his Regiment again
moved to Shershali (Uri Sector J&K) and remained there upto
May, 2004. Thereafter, he was posted in different places.
Petitioner was granted one month annual leave on 28.02.2005
and after he reported back from leave in time, he complained of
breathlessness and it took a serious turn in first week of April,
2005 because of which, he became unconscious and he was
rushed to Military Hospital Bareilly and remained admitted there
upto 11.05.2005. The Senior Advisor at said Hospital gave his
opinion that he is suffering of Bronchial Asthma and
recommended him to be released in Category P-2. Consequently,
a Release Medical Board was held on 09.05.2005 at Military
Hospital Bareilly which placed him in lower medical category P-2
and recommended his release from Army Service with 30%
disability. The petitioner finally discharged from service on
01.07.2005. He has put in 18 years and 5 months of service. The
petitioner received a letter from Officer I/C Records dated
10.08.2005 by which it was intimated to him that since he had
been discharged from service with effect from 01.07.2005 at his
own request on compassionate ground under item III (iv) of Army
Rule 13(3) and not on medical grounds, therefore, he was not

TA No.235/2010
4
entitled for disability pension. He made a representation but
without any result. Ultimately, he approached the Hon'ble Delhi
High Court by filing present writ petition with aforesaid reliefs.
This petition has been transferred to this Tribunal on its formation.
admit that petitioner is suffering from medical disability to the
extent of 30% and since he was released from service on
compassionate ground, therefore, he was getting pension but he
is not entitled for disability pension to the extent of 30%.
perused the record.
6. The fact of the matter is petitioner received the
disability during service and it is attributable to Army Service. If
he is discharged on account of compassionate ground, there is no
reason why disability pension should not be given to him. This
issue is no more res-integra and it has also been decided by

TA No.235/2010
5
Hon’ble Delhi High Court in case of Mahavir Singh Narwal vs.
Union of India & Another in C.W. No. 2967/1989 which has
been confirmed by Hon’ble Supreme Court. This Tribunal has
also decided the same issue and held that simply because
incumbent was discharged on account of compassionate ground
his disability pension cannot be denied to him. Consequently, we
allow this petition and direct the respondents to release the
disability pension from the date of his discharge @ 30%. Amount
may be calculated and all arrears shall be paid to the petitioner
with interest @ 12%.
7. Petitioner is accordingly allowed. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 15, 2010.
(PRINCIPAL BENCH)

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TA No.46/2010
1

NEW DELHI
T.A. No. 46/2010
Maj S.D. Singh .........Petitioner

Versus
For petitioner: Lt. Col.Naresh Ghai, Advocate with petitioner

For respondents: Dr.Ashwani Bhardwaj, Advocate with Capt Alifa
Akbar
CORAM:

ORDER
19.02.2010
2. Petitioner by this writ petition has sought a writ of
mandamus to grant superannuation with effect from 01.10.2002

TA No.46/2010
2
with interest 12% per annum to the petitioner who retired on
completion of 54 years of age with unblemished qualifying service
of about 18 ½ years, as per Government letters dated 03.02.1998,
30.10.1987 and 08.07.1994 and Regulations no.15, 25 and 292 of
Pension Regulations for Army, 1961 by quashing the PCDA(P)
letter dated 10.01.2003 being contrary to the corresponding rules.
present writ petition are that petitioner was selected by the
Selection Board for Territorial Army and he was granted direct
commission on 05.04.1984. He was appointed as Company
Commander in 109 Infantry Battalion (Territorial Army) Maratha
LI. He participated in counter insurgency and other operations/
field areas and got promotion to the rank of Captain and then to
Major after undergoing compulsory courses and professional
examination. It is said that petitioner had put in 18 ½ years of
reckonable service and superannuated on 30.09.2002 on
completion of 54 years of age. Thereafter, petitioner made a
request for grant of pension but that request for pension was not
acceded by the Authorities. Therefore, he was driven to file the
present writ petition. Petitioner in this connection submitted that

TA No.46/2010
3
as per Government order dated 30.10.1987 which clarified that all
the members of Territorial Army will be entitled to same benefits
as made applicable to Indian Army and this matter has been
further clarified by the Government order dated 03.02.1998.
Ultimately, petitioner after going through all efforts failed to get
any relief. Therefore, he filed the present writ petition before the
Hon'ble Delhi High Court which has been transferred to this
Tribunal on formation of Armed Forces Tribunal for disposal.
4. A reply was filed by the respondents and respondents
have taken the position that Territorial Army is a part time concept
and it cannot be treated at par with Indian Army and in that
connection, they pointed out that petitioner has not put in 18 years
of service but he has put in 16 years 92 days service in regular
Army. It is also pointed that matter was examined at all level and
ultimately, Additional Directorate General Territorial Army,
General Staff branch, Army Headquarters, ‘L’ Block, New Delhi
vide communication dated 16.04.2002 has informed the Group
Headquarters of all Commands that Territorial Army officers have
never been treated at par with regular commissioned officers and
the benefit of provision of Regulation 15 of Pension Part-I, 1961

TA No.46/2010
4
for Army about late entrants cannot be extended to Territorial
Army officers as this Regulation is only applicable to regular
commissioned officers only.
5. We have learned counsel for parties and perused the
record.
6. At the outset we express our great regret that the
matter has been mishandled badly. The Government orders
dated 30th October, 1987 and 03rd February, 1998 have been
flouted with impunity. Either Authorities have not read it or they
have not applied their mind at all. Subordinate officers are bound
by the Government decisions and they cannot override them. In
this connection, reference may be made to first order dated 30th
October, 1987 which needs to be reproduced as a whole to show
that how thoughtlessly matter has been examined. The order
dated 30th October, 1987 reads as under :-
No. 1(5)/87 D (Pension/Services)

Government of India/Bharat Sarkar
Ministry of Defence/Raksha Mantralaya
New Delhi dated the 30th October 1987
To
The Chief of the Army Staff
The Chief of the Naval Staff
TA No.46/2010
5
The Chief of the Air Staff
Sub: Implementation of the Government decisions on the

recommendations of the Fourth Central Pay Commission regarding pensionary
benefits for the Armed Forces officers and personnel below officer rank
retiring or dying in harness on or after 01.01.1986.
Sir,
I am directed to refer to the Government decisions on the recommendations

of the Fourth Central Pay Commission as notified vide Government of India,
Ministry of Personnel, Public Grievances and Pensions, Department of Pension
& Pensioners’ Welfare Resolution No.2/13/87-PIC dated 18th March, 1987 and
to convey the sanction of the President to the modifications, to the extent
specified in this letter, in the rules/regulations concerning pensionary benefits
of the Commissioned Officers (including MNS and Territorial Army Officers)and
personnel below officer rank (including NCs (E) of the three Services, Defence
Security Corps and the Territorial Army) (hereinafter collectively referred to as
Armed Forces personnel)
1.2 The provisions of the pension regulations of the three services and
various service instructions/Government orders, which are not affected by the
provisions of this letter, will remain unchanged.
Part-1 Date of effect and Definitions
2.1 The provisions of this letter shall apply to the Armed Forces
personnel who were in services as on 01.01.1986 or joined/join servcie
thereafter.
Definitions
3. Reckonable Emoluments:
4. Average emoluments:
5. Qualifying Service
(a) The term ‘Qualifying Service’ (QS) shall mean:--------(table)
(b) Weightage for the purpose of calculation of pension of
commissioned officers will be given below:----------- (table)
Notes : (1) There will be no weightage for officers and personnel below
officer rank who retire prematurely for permanent absorption in
public sector undertakings and autonomous bodies.
(2) There will be no weightage for officers and personnel below officer
rank of the Territorial Army.
(3) The above weightage shall not be reckoned for determining the
minimum qualifying service specified for admissibility of
Retiring/Service Pension i.e. 20 years for service officers (15 years for
late entrants), 15 years for personnel below officer rank and 20 years
for NCs(E).
(4) Full pre-commissioned service rendered under the Central
Government whether in a civil Deptt. or in the Armed Forces, shall be
TA No.46/2010
6
taken into account for working out the qualifying service for earning
pensionary benefits subject to fulfilment of other conditions. This
will also be counted for determining the minimum qualifying service
indicated in Note 3 above for earning Retiring/Service Pension.
(5) In calculating the length of qualifying service, fraction of a year equal
to three months and above but less than 6 months shall be treated
as a completed one half year and reckoned as qualifying service.
Part-II Retiring/Service pension/gratuity, invalid pension/gratuity, special

pension/gratuity, ordinary family pension, retirement/death gratuity.
6. Retiring/Service pension
6.1 OFFICERS
(a) The minimum period of qualifying service (without
weightage) actually rendered and required for earning retiring
pension shall continue to be 20 years (15 years in the case of late
entrants).
(b) Retiring pension in respect of the Commissioned Officers of
the three services, including MNS and TA officers, shall be calculated
at 50% of the average of emoluments reckonable for pension as
defined in paras 3 and 4 above. The amount so determined shall be
subject to a maximum of Rs.4,500/- per month and shall be the
retiring pension for 33 years of reckonable qualifying service as
defined in para 5 above; for lesser years of reckonable qualifying
service, this amount shall be proportionately reduced.
..................
..................
..................
30. Pension regulation of the three services will be amended in due

course.
31. This issue with concurrence of the Finance Division of the Ministry
vide their u.o. no. 286-Pension of 1987.
32. Hindi version will follow.
Yours faithfully
Addl Secy to the Govt of India
7. The order dated 30th October, 1987 was for the
implementation of the recommendations of the Fourth Central Pay
Commission and order dated 03rd February, 1998 was issued for
implementation of the Government decision on the Fifth Central

TA No.46/2010
7
Pay Commission. Relevant portion of order dated 03rd February,
1998 reads as under :-
No. 1(6) 98 D (Pension/Services)

Government of India/Bharat Sarkar
New Delhi dated the 3rd Feb 1998
To
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
SUB: IMPLEMENTATION OF THE GOVERNMENT DECISIONS ON THE

RECOMMENDATIONS OF THE FIFTH CENTRAL PAY COMMISSION REGARDING
PENSIONARY BENEFITS FRO THE ARMED FORCES OFFICERS AND PERSONNEL
BELOW OFFICER RANK (PBOR) RETIRING OR DYING IN HARNESS ON OR AFTER
01.01.1996.
Sir,
........................
5(2) In case of TA personnel aggregate of qualifying embodied service

shall count for service pension. Aggregate qualifying embodied service may be
continuous or rendered in broken spells. For calculating the total embodied
service, the breaks in embodied service due to disembodiment will be treated
as condoned but the period of breaks itself will not be treated as qualifying
service for pension. Where qualifying embodied service has been rendered in
broken spells, five per cent cut will be imposed on the pension of those
JCOs/OR who have completed 15 years or more of aggregate embodied service
but have not completed 20 years of aggregate embodied service.
..........
5(b) Notes: (3) The above weightage will not be reckoned for
determining the minimum qualifying service specified for admissibility of
Service Pension i.e. 20 years for service officers (15 years for late entrants) and
15 years for PBOR and 20 years for NCs(E).
6.1 (a) The minimum period of qualifying service (without weightage)

actually rendered and required fro earning retiring pension will be 20 years. In
the case of late entrants (i.e. an officer who is retired on reaching the
prescribed age limit for compulsory retirement with atleast 15 years
commissioned service qualifying for pension but whose total service is less
than 20 years, the minimum period of qualifying service (without weightage)
TA No.46/2010
8
actually rendered and required for earning retiring pension will continue to be
15 years.
8. These two orders make it explicitly clear that the
persons from the Territorial Army will be governed by the
necessary pensionary Regulations which are applicable to Army
also. There are no two opinions in the matter and there is no
room for doubt. The Government orders dated 30th October, 1987
for implementation of Fourth Central Pay Commission and 3rd
February, 1998 for implementation of Fifth Central Pay
Commission make it abundantly clear that that the persons
working in the Territorial Army will be governed by the Indian
Army Pensionary Regulations for the purposes of working out
their pensions.
9. It may be relevant to reproduce Regulation 292 of
Pension Regulations for the Army for Territorial Army and same is
reproduced as under:-
“The grant of pensionary awards to members of the territorial Army

shall be governed by the same general regulations as are applicable to
the corresponding personnel of the Army except where they are
inconsistent with the provisions of regulations in this chapter.”
TA No.46/2010
9
10. A similar case came before us i.e. Lt. Col. I.K. Talwar
Vs. Union of India & Others (T.A. No. 771/2009) and we have
also held that the personnel of the Territorial Army for the
purposes of pension shall be treated at par with Army officer. We
have been shown the minutes of the note sheet of the Defence
Ministry and CGDA (pension). We regret to say that there is not
at all proper application of mind in this case. They are all
obsessed with same concept of late entrants and the personnel of
the Territorial Army stands differently for the purposes of pension.
But the intention of the Government and two orders which have
been issued in pursuance of the implementation of Fourth Pay
Commission and Fifth Pay Commission leaves no room for doubt.
11. After going through the files we record our great
displeasure the way in which the case has been dealt and total
non application of mind and this is the complete derogation of the
policy decision of the Government. Despite the fact that the
Government has already decided on 30th October, 1987 and 03rd
February, 1998 still there is a doubt lurking in the mind of CGDA
(pension) and so much so the Defence Ministry who has issued
this circular after consultation with the Department of Personnel

TA No.46/2010
10
did not stick to that and wade away by the observations of CGDA
(pension). At least Ministry should have themselves examined
orders issued by them on 30th October, 1987 and 03rd February,
1998. Therefore, we are of the opinion that the order passed by
the Government dated 10.01.2003 is set aside and respondents
are directed to work out the arrears of pension of petitioner and
release the same and pay the same with interest @ 12% per
annum.
12. Petition is allowed with a cost of Rs.10,000/- to be
paid to the petitioner.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 19, 2010.
TA No.255/2009
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW

DELHI
TA No.255/2009
Maj. Gen. Devendra Nath Verma, AVSM (Retd.) .........Petitioner
Versus
Union of India & Others ......Respondents
For petitioner: In person assisted by Maj. Gen. (Retd.) S.K. Sanan.

For respondents: Ms. Jyoti Singh, Advocate.
CORAM:

JUDGMENT :
1. Present petition was admitted in Delhi High Court on
14.12.1995. It has been transferred to this Tribunal on 02.09.2009.
2. The petitioner vide CWP No. 4800/1995 had listed three
respondents i.e. Union of India through Secretary, Ministry of Defence;
Chief of Army Staff and the Military Secretary, Army Headquarters.

TA No.255/2009
2
However, the petitioner moved an amendment to the petition, which
was accepted on 03.01.1996. This amendment enlarged the matter of
respondents by listing Lt. Gen. P.D. Bhargava as respondent no. 4 and
Lt. Gen. Vinay Shankar as respondent No. 5.
3. The petitioner has prayed for quashing of the order of
retirement dated 30.09.1995. Further, for reinstatement and promotion
to the rank of Lt. Gen. with effect from 01.02.1995 protecting his
seniority including financial consequences that should follow.
4. The petitioner was commissioned on 07.06.1959 in the
Corps of Signals. The petitioner took part in Goa Operations 1961 and
Chinese Operations 1962 in a creditable manner. During the 1971 War
he was posted in the Army Headquarters. He was selected and
successfully completed several prestigious courses of instructions like
Staff College Degree, Telecommunication Engineering, Higher
Command Course, Senior Defence Management Course and National
Defence Course.
5. During his service, the petitioner tenated several
prestigious assignments within and outside the Corps of Signals. In
every appointment his contribution to the organisation was substantial

TA No.255/2009
3
and highly appreciated by his superiors. Thus, in 1991 he was
promoted to the rank of a Major General. He had therefore served in
challenging „Staff and Corps‟ appointments in each rank that he had
held before being promoted as a Major General. Due to his diligent
and dedicated hard work, he was elected as one of the Colonel
Commandants of the Corps of Signals in 1992. He was awarded the
Ati Vishisht Seva Medal in January, 1995 for his distinguished services.
He is also the recipient of the Chief of Army Staff Commendation.
Several profession papers were written by him which have been
published in various professional journals. Thus, he was well qualified
for further promotions in the Army.
6. In order to further streamline and maintain the character of
a command oriented Army a „Two Stream‟ concept in the higher ranks
was introduced vide Army Headquarter letter of 09th September, 1986.
It envisaged that officers on promotion to Major General and Lt.
General in the general cadre shall be bifurcated into :-
“(i) Command and Staff Stream :

Very high calibre officers on the basis of their merit
were sought to be promoted to this Stream,
entrusted with command appointments in the
higher ranks and further given exposures in the
Staff and ERE appointments. The officers so
selected were eligible for further promotions.
TA No.255/2009
4
(ii) Staff Only Stream :

Officers selected under this Stream were required
to hold only Staff appointments and were not
eligible for further promotions.”
It also laid down the two stream concept for officers belonging to
Non-general cadre as under :-
(i) “Staff Only” Appointments

(ii) “Within the Corps” Appointments.
7. On 04th January, 1994 a Promotion Board was held for the
officers belonging to 1959 batch for selection into Staff Stream for
promotion to the next rank of Lt. General. The petitioner was also
considered in this board but was found unsuitable for promotion. He
was surprised when he was told that he did not make the grade as he
lacked experience in Staff Appointments. The petitioner submitted that
he was qualified to tenate staff appointments and was also
recommended by his superiors. He was not posted to a Staff
Appointment because of the requirements of the organisation, over
which he had no control.
8. The petitioner protested to the Chief of army Staff over his
non-empanelment for promotion in „Staff‟ stream and offered himself for

TA No.255/2009
5
a Staff Appointment in the present rank of Major General. He also
sought an interview with the Military Secretary.
9. In the Promotion Board held on 04.01.1994, three officers
were recommended. Of the three, Maj. Gen. D. Ajwani was of 1958
batch and was screened as First Review case. Maj. Gen. P.D.
Bhargava of 1959 batch was the second officer. Maj. Gen. P.D.
Bhargava was scheduled to superannuate on 31.01.1994.
10. The Government of India granted an extension to Maj.
Gen. P.D. Bhargava for three months and thus promoted him on 01st
April, 1994 as the Director General of Rashtriya Rifles, a newly created
post.
11. In an affidavit submitted by the respondents in the case of
Col. S.N. Lele, VSM versus Union of India and Others No. 2622/1994
in High Court of Jammu & Kashmir, Srinagar states :-
“Para 8 and 9. There is neither a general rule/practice

nor any universal policy to promote all the officers out of
turn in outside the Corps vacancy empanelled on the
approved list but are the verge of retirement. Out of turn
promotion is given only in the exceptional cases to the
officers whose advancement is necessary on
reasonable basis in the interest of the service. Normally
the officers are considered for promotion in the order of
seniority in their corps. Hence no arbitrary treatment has
TA No.255/2009
6
been met to the petitioner. Further, it is valiantly denied

that hundreds of other similarly circumstanced officers
as the petitioner, have been given promotion out of turn
basis only with a view to prevent the premature end of
their service.
Para 10 and 11 : While not denying that extensions in

service have been given to the officers named in para
10 of the petition but it is vehemently objected that there
is any common practice much less a „most common
practice‟ to entitle the officers on the verge of retirement
to promotion and extension in service. The reasons for
granting the extensions in each case is as under :-
(a) Case of Maj Gen. P.D. Bhargava. While a
vacancy in the rank of Lt. Gen. was available, the result
of the selection had not yet been declared when the
officer‟s superannuation became due. Hence he was
granted extension.”
12. The result of the Promotion Board of 04th January, 1994
was declassified on 17th February, 1994. However, no promotion was
made against the so called existing vacancies till 01st April, 1994
clearly indicating that there was no vacancy till 01st April, 1994.
13. In October, 1994 another Promotion Board was held to
select officers for promotion to the rank of Lt. General in the Corps of
Signals from 1959 batch. In this Board the petitioner was approved for
promotion within the Corps of Signal. Lt. Gen. (then) P.D. Bhargava,
also was approved for promotion within the Corps of Signals leading to
a dichotomous situation. Since as per the policy letter of 09th

TA No.255/2009
7
September, 1986, an officer from the Non-General Cadre should be
first found fit for promotion within the Corps and then be considered for
selection to the Staff Stream. In this case Lt. General P.D. Bhargava
was selected for Staff Stream in January, 1994 while found fit for
promotion within the Corps in October, 1994.
14. The vacancy within the Corps of Signals for a Lt. General
occurred on 01st February, 1995. Logically since Lt. Gen. P.D.
Bharagava stood promoted with effect from 01st April, 1994 on Staff;
the vacancy in the Corps of Signals should have been given to the
petitioner.
15. However, Lt. Gen. P.D. Bhargava was allotted this
vacancy of 01st February, 1995 and made the Signal Officer in Chief.
Thereafter, the next vacancy in rank of Lt. General in the Corps of
Signals occurred on 01st October, 1995. The petitioner retired on
30.09.1995.
16. The petitioner argued his case in person. He was assisted
by Maj. Gen. (Retd.) S.K. Sanan. He argued that it appears the
scheduling of the promotion board in January, the extension of service
to Lt. Gen. P.D. Bhargava and thereafter side-stepping of Lt. Gen. P.D.
TA No.255/2009
8
Bhargava back to the Corps of Signals on 01st February, 1995, was
stage-managed to help Lt. Gen. P.D. Bhargava (respondent No. 4),
while denying opportunities for promotion to the rank of Lt. General to
the petitioner. He qualified that he had no complaints against the
results/recommendations of the Promotion Board held on 04th January,
1994. However, extension of service by three months to the Maj.
General P.D. Bhargava was malafide since there was no vacancy of a
Lt. General on Staff on or before 31st January, 1994, when Maj.
General P.D. Bhargava was to retire. That is why respondent No. 4
could be promoted only on 01st April, 1994, that too against a newly
sanctioned appointment of Director General Rashtriya Rifles. He
argued that another intriguing aspect of the extension was that the
case was not recommended by Army Headquarters while the Ministry
of Defence granted the extension suo motto.
17. The petitioner further argued that as per the policy of 09th
September, 1986, it was mandatory for an officer from the Non-General
Cadre Stream to have first been approved for promotion within the
Corps, before being considered for the Staff Stream. In this case,
respondent no. 4 was approved for Staff Stream in January, 1994 while
he was screened for promotion within the Corps in October, 1994.

TA No.255/2009
9
18. The petitioner argued that in February, 1995, on
occurrence of vacancy within the Corps of Signals, Respondent No. 4
was side-stepped back to the Corps of Signals despite he having
tenated the appointment of Director General Rashtriya Rifles as a Lt.
General for less than a year, once again violating the policy of 09th
September, 1986.
19. The petitioner said that respondent no. 5, Maj. Gen. Vinay
Shankar was promoted on 24th May, 1995 superceding the petitioner
who was senior, thus violating the policy of 09th September, 1986. In
essence, having violated the various policy parameters of the 09th
September, 1986 letter, the petitioner was denied his legitimate
promotion to the rank of Lt. General within the Corps of Signals.
20. The learned counsel for the respondents was asked as to
whether she is representing all the five respondents, she replied in
affirmative, though the counter affidavit filed on 06th March, 1996 was
on behalf of respondents No. 1, 2 and 3 only.
21. The learned counsel for respondents submitted that none
of the provisions of the policy letter dated 09th September, 1986 were
violated. Army being a hierarchical pyramid, higher promotions

TA No.255/2009
10
become increasingly competitive/comparative in which a candidate
needs to emerge in the merit as per the vacancies existing. She
argued that the petitioner failed to qualify in the Promotion Board of 04th
January, 1994. However, he was approved for promotion within the
Corps of Signals in the Board held in October, 1994. While in October,
1994 itself another Promotion Board for Staff Stream was also held in
which the petitioner did not qualify.
22. As regards the recommendations to the Ministry of
Defence for extension of Maj. General P.D. Bhargava was concerned,
Army Headquarters had brought to the notice of the Ministry in their
covering Note dated 7th January, 1994 forwarding the Board
Proceedings by stating that the officer is due to retire on 31st January,
1994, hence the case be progressed expeditiously. However, the
Ministry of Defence chose to grant extension of service for three
months in this case instant, on 24th January, 1994. This action also
indicates that vacancies were available. To the specific query as to
which appointments were vacant, the learned counsel was unable to
answer, being a very old case. Learned counsel had submitted earlier
in the affidavit to categorically state that a vacancy was available to
promote Maj. Gen. P.D. Bhargava in his turn but result of the Selection
Board was awaited. The respondents in their affidavit have also
declared that as per Army Rule 16-A an officer who has attained the
TA No.255/2009
11
age of retirement or has become due for such retirement on completion
of his tenure, may be retained in service for a further period by the
Central Government, if the exigencies of service so required.
23. To the issue of side-stepping of respondent No. 4 back
from Staff Stream to within the Corps appointment on 01st February,
1995, the learned counsel for respondents submitted that careful
reading of the policy letter of 09th September, 1986 clearly shows that
there is no embargo in appointing an officer of the rank of Lt. General
from Non-General Cadre, who is holding an outside own Corps
appointment, to an appointment within own Corps. However, only in
relation to own Corps appointment of Signal Officer-in-Chief the
requirement of 12 months residual service is there and respondent No.
4 met the criteria. Lt. General P.D. Bhargava was senior to the
petitioner for own Corps appointment as Signal Officer-in-Chief.
24. As regards the promotion of respondent No. 5, Maj.
General Vinay Shankar who was promoted on 25th May, 1995 is not
comparable with the petitioner. Respondent No. 5 was approved in the
„Staff Stream‟ and was promoted in his turn from within the panel of
officers approved to by Lt. General within the Staff Stream. Since the
TA No.255/2009
12
petitioner was not approved for Staff Stream ever in October, 1994,
comparison cannot be made.
25. Having considered the arguments of both the sides, we
sought some specific inputs from the respondents. First input was the
minutes of the Board Proceedings held on 04th January, 1994. We
wanted to know the terms of reference or rather vacancies/forecasted
vacancies in numbers against which the Board was to consider the
candidates for promotion in the Staff Stream. The Board Proceedings
were produced by the respondents but it did not contain any „Brief‟ for
the members. It is suggested for the consideration of the Army
Headquarters that a „Brief‟ to include anticipated vacancies/existing
vacancies must be stated by the Military Secretary before the Board
sits down for deliberations, and it must be recorded along with the
Board Proceedings.
26. In the absence of any specific inputs regarding vacancies
for Lt. General on 31st January, 1994, we sought the total number of Lt.
Generals held on 01st January, 1994 and number of Lt. Generals
authorised on that date. The additional affidavit submitted by the
respondents regrettably skirted the issue.

TA No.255/2009
13
27. In such cases where a senior officer of the rank of Maj.
General has come forward with a grievance, one would expect the
respondents to assist the Tribunal in dealing with the case in order to
arrive at an enlightened judgment. The respondents have not kept in
mind the diction laid down by the Apex Court in various cases
mentioning the duties and responsibilities of the public authorities. In
this case in particular when the Writ Petition was registered in
December, 1995, it should have been ensured that all records
pertaining to the case are kept safely and provided when demanded,
rather than seeking shelter of the fact that it is a very old case hence
records are not available.
28. In order to quickly conclude the case, which has been in
progress since December, 1995, we decided to examine the “Nominal
Roll Brigadiers and above as on 01st January, 1994”, against the
vacancies sanctioned by the Government of India and promulgated
vide Army Headquarters letter of 09th January, 1991.

TA No.255/2009
14
29. All Lt. Generals including the Vice Chief of Army Staff and
GOCs-in-C were counted. Lt. Generals outside the Army on
Deputations were deducted and thereby arriving at the strength as on
01st January, 1994. The data is tabulated :-
Strength as
per Nominal
Roll
VCOAS and GOsC 7
in C
Lieutenant Generals 50
Total : 57
Outside Army
Security Advisor 1
Punjab Government
OSD/Chairman 1
SSSDC
UN Assignment 1
Tri Service Institution 1 NDA, CDM, NDC.

Rotational
Appointment.
Net Total : 53
Authorised Strength 53 As stated by

as on 01.01.1994.
respondents
In view of the foregoing, it is evident that there was no
vacancy in the rank of Lt. Generals on 01st January, 1994. Having

TA No.255/2009
15
examined the Nominal Roll of 01st January, 1994 in detail, we conclude
that the first vacancy for a Lt. General would have occurred on 01st
February, 1994 (Lt. General B.S. Nalwa, Commandant, Defence
Services Staff College). It may be noted here that Maj. Gen. P.D.
Bhargava was number 2 in the seniority of the approved list in the
Board held in January, 1994. Therefore, one vacancy on 01.02.1994
would not have been available to Maj. Gen. P.D. Bhargava.
30. As regards side-stepping of Lt. Gen. P.D. Bhargava to
within the Corps of Signals on 01st February, 1995 is concerned, we
are of the opinion that the policy letter of 01st June, 1987 regarding
“Command and Staff Stream”, para 6 amply clarifies the same. It reads
as under:-
“6. Lt. Gens. Each other Arm/Service is authorised

two appointments specific to the Corps in the rank of Lt.
Gen. Notwithstanding the proposal to downgrade the
Schools of Instruction, a second appointment in the rank
of Lt. Gen. will invariably be made available to them to
ensure that their promotional prospects do not lag
behind. Officers holding these two assured
appointments will superannuate at 58 years. Other
officers from a particular Arm/Service in the „Staff Only
Stream‟ over and above the two assured appointments
will superannuate at 57 years as is applicable to officers
of the General Cadre. However, if any appointment
within the Corps falls vacant, such officer will be
screened to assess his fitness for holding the specific
vacancy within the Corps. If selected to hold the
authorised vacancy, he will superannuate at an age
corresponding to the age of Command and Staff Stream
i.e. 58 years. If in case, no vacancy is available, the
TA No.255/2009
16
officers of this Stream continue to superannuate at 57

years as mentioned earlier.”
31. Promotion of Lt. General Vinay Shankar on 25th May, 1995
superceding that of the petitioner is also justifiable. The petitioner was
approved for promotion in the Corps of Signals and not in the Staff
Stream. While respondent No. 5 was promoted against the vacancy of
Staff Stream. Therefore, it was not a supercession in the literal since.
32. We are of the opinion that by granting extension to Lt.
Gen. P.D. Bhargava on 24th January, for three months with effect from
01st February, 1994 in the absence of any clear vacancy on 1st
January, 1994, the Government of India has chosen to over ride its
policy so enunciated from time to time. This action is totally unjustified
and ultra-vires, because similarly situated, the petitioner too could have
been granted an extension and even an extension of one day would
have ensured his promotion on 01st October, 1995. It may be qualified
that respondent No. 4 was at serial 2 of the seniority list amongst the
approved list of January, 1994 and thus could not have been promoted
on 01st February, 1994. The petitioner in his prayer has not sought
quashing of the extension granted to Lt. Gen. P.D. Bhargava. Besides,
being an old case we are not inclined to interfere in this aspect of this
case.
TA No.255/2009
17
33. However, the extension granted to Lt. Gen. P.D.
Bhargava, set forth a chain of events which eventually denied
promotion to the petitioner, who was otherwise fully eligible to become
a Lt. General in his own Corps. The extension enabled Maj. Gen. P.D.
Bhargava to stay in service despite reaching the age of superannuation
on 31st January, 1994 and subsequently pick up his rank of a Lt.
General on 01st April, 1994, and finally side step as Signal Officer-in-
Chief on 01st February, 1995. Thus denying the petitioner the vacancy
for promotion on 01st February, 1995 within the Corps. We opine that
the treatment meted out to the petitioner has been malafide and unfair.
34. We uphold the contention of the petitioner and quash the
impugned order of retirement dated 30th September, 1995. Since the
petitioner has retired, he may be granted notional promotion to that of a
Lt. General w.e.f. 01st October, 1995 and the financial consequences
that would have accrued to him had he been in service, including that
of pensionary benefits. The exercise may be conducted within 90 days
of this order. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 22, 2010.
TA No.510/2010
1

NEW DELHI
T.A. No. 510/2010
Flying Officer R.K. Aggarwal .........Petitioner

Versus
For petitioner: Petitioner in person

For respondents: Sh.Ankur Chibber, Advocate with Ms.Tinu Bajwa
CORAM:

ORDER
22.02.2010
2. Petitioner by this writ petition has prayed that letter
dated 31.07.2007 issued by respondent no.2 and letter dated

TA No.510/2010
2
06.11.2007 issued by respondent no.3 may be quashed and
respondents may be directed to release the disability pension to
the petitioner and all benefits following thereform.
present writ petition are that petitioner was selected for grant of
short service commission in Indian Air Force and in June 1957 he
joined the 15th Ground Duty Officers Course in Air Force
Administrative College, Coimbatore. After successful completion
of training, he was granted short service regular commission on
02.05.1958 and nature of his duty was ‘Fighter Controller’.
Petitioner was sent for routine medical check up. In October,
1962 he was referred to Chest Disease Hospital, Pune. He was
released from said Hospital on 23.07.1963 and also released from
service on said date with 100% disability attributable to service.
Thereafter, his disability was reviewed periodically through
medical boards/resurvey medical boards from time to time and
disability from the year 1963 to 1968 was reduced to 30% and
after 29.08.1971 it was reduced to less than 20%. Petitioner’s
disability pension was discontinued but his service element of

TA No.510/2010
3
pension was also discontinued. He was also not paid the gratuity
due to him despite his requests. Thereafter, he again requested
for resurvey medical board in the year 1988. The resurvey
medical board was conducted at Army Hospital, Delhi Cantt. and
said board assessed the disability of petitioner as 20%. The Air
Head Quarter vide letter dated 15.07.1988 directed the CDA
(Pension) Allahabad to grant continuance of disability pension.
After about two years, respondent no.2 vide its letter dated
25.06.1990 informed the petitioner that he is not entitled to
reassessment of disability pension as the disability assessed in
the year 1971 was final. Thereafter, petitioner did not pursue the
matter further and ultimately, when he learnt through Air Force
Association that Ministry of Defence vide its circular dated
30.08.2006 has issued guidelines to cover all the past cases of
short services commissioned officers irrespective of the date of
release. Persuaded by this circular, he again took up his matter of
pension before CDA(Pension) Allahabad but without any result.
Therefore, petitioner filed the present writ petition on 06.05.2009
before the Hon'ble Delhi High Court with aforesaid grievance.
This petition has been transferred to this Tribunal on its formation.

TA No.510/2010
4
4. Petitioner in person submits that his service element
of pension was discontinued from the year 1971 after his disability
fallen from 20% i.e. 19% but in view of recent circular issued on
30.08.2006, he submitted that discontinuation of his service
element of pension cannot be denied again in the light of para 2 of
this circular which reads as under:-
“2. Service element of disability pension in respect of non

regular commissioned officers retired before the date of
issued of these orders shall be revised prospectively in
accordance with these orders. In the case of aggravation,
the benefit of service element as per these orders will be
applicable only to those who retire on or after the date of
issue of this letter. Past cases will not be re-opened.”
5. Petitioner submitted that in view of circular dated
30.08.2006 he being non regular permanent officer and retired on
23.07.1963, he is entitled to service element of pension in the light
of para 2 of the order.
6. Learned counsel for the respondents has only raised a
question of gap of 17 years but the fact remains that order dated
30th August, 2006 which has revived the hope of petitioner that
why his case should not be considered in the light of this circular
TA No.510/2010
5
and his service element of pension should be revised
prospectively. Let the Authorities may examine his case and
consider the grant of service element of pension from prospective
date i.e. from 30th August, 2006.
7. He also submitted that Resurvey Medical Board which
was convened in May, 1988 by the competent Authorities on his
request found that his disability increased to 20% and when his
disability increased to 20%, he should have been given the
disability pension on the basis of 20% disability. But the petitioner
did not approach the Court in 1988 when the Resurvey Medical
Board was convened, he approached the Hon’ble Delhi High
Court by filing the present writ petition somewhere in 2009.
Though the petition was highly belated but the fact remains that
this Resurvey Medical Board has assessed his disability as 20%
as such he is entitled to disability pension on the basis of 20%
disability. But he has approached the Hon’ble Delhi High Court in
2009, we therefore, restrict the arrears from three years preceding
filing of this petition. The Authorities are directed to work out the
arrears of disability pension as well as revision of the prospective

TA No.510/2010
6
service element of pension as per the order dated 30th August,
2006 and pay the arrears to the petitioner with 12% interest. This
whole exercise should be done within three months from today.
8. Petition is disposed of accordingly with no order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 22, 2010.
TA No.373/2009
1

NEW DELHI
T.A. No. 373/2009
Smt. Roshni Devi .........Petitioner

Versus
For petitioner: Sh.A.K. Trivedi, Advocate

For respondents: Sh.Ankur Chibber, Advocate with Capt Alifa
Akbar
CORAM:

ORDER
22.02.2010
2. Petitioner by this writ petition has prayed that
impugned orders dated 05.11.2002, 11.06.2002 and 20.01.2009
be quashed as illegal and unjust and respondents may be

TA No.373/2009
2
directed to grant disability pension to the husband of petitioner
from the date of his discharge till his death i.e. 17.01.1980.
present writ petition are that husband of petitioner was enrolled in
Indian Army on 21.08.1971. He was invalidated out from service
on 14.08.1976 in low medical category CEE(P) after rendering 4
years and 359 days of service due to the Fracture7 & 8 Ribs(Rt)
and his disability was assessed as 20% and it was also recorded
that his disability was attributable to Military service but he was
not granted his disability pension as his case was rejected by the
PCDA(P) Allahabad. Petitioner after coming to know about the
decision of Hon'ble Delhi High Court in case of Ex Sep Chajju
Ram vs UOI decided on 08.05.2002, realised that she is entitled
to family pension as such she filed the present writ petition before
the Hon'ble Delhi High Court though belatedly.
4. A written was filed by the respondents wherein they
took the position that petitioner is not entitled to family pension.
Learned counsel for respondents submitted that it is true that
husband of petitioner received the injury when he met with an
accident while returning back from casual leave and medical

TA No.373/2009
3
board found that incumbent was suffering from disability to the
extent of 20% and he was discharged from service on 14.08.1976
but husband of petitioner could not get any disability pension from
the date of discharge i.e. 14.08.1976 till date of his death i.e.
17.01.1980.
5. Learned counsel for petitioner has submitted that this
case is squarely covered by the decision of Full Bench judgment
of Delhi High Court in the case of Ex. Nk. Dilbagh Vs. Union of
India – 152 (2008) Delhi Law Times 148 (FB) wherein it was held
that as per the 12 (d) of Appendix-II of Entitlement Rules in which
it is mentioned that a person when proceeding from his duty
station to his leave station or vice-versa he deemed to be treated
in service. The relevant Regulation reads as under:-
“12. (d) When proceeding from his duty

station to his leave station or returning to
duty from his leave station, provided entitled
to travel at public expenses, i.e. on railway
warrant, on concessional voucher, on cash
TA (irrespective of whether railway
warrant/cash TA is admitted for the whole
journey or for a portion only), in Government
transport or when road mileage is
paid/payable for the journey.”
TA No.373/2009
4
6. In view of this Regulation, the Full Bench of Hon'ble
Delhi High Court took the view that incumbent whoever meets
with an accident while joining back to service after availing the
casual leave, shall deemed to be in service. Consequently, in the
present case also the husband of petitioner while returning back
from the casual leave on 10th September, 1974 for joining back to
his unit, met with an accident and suffered Fracture 7 & 8 Ribs
(Rt). This has been certified by the Medical Board which found
the disability to the extent of 20% and he was discharged from
service on 14th September, 1976. Therefore, he was entitled to
the disability pension to the extent of 20%. But the petitioner filed
the present writ petition before the Hon’ble Delhi High Court in the
year 2009 which is extremely belated. But it appears that the
petitioner is an ignorant lady and she had no idea about rules and
regulations. Therefore, in peculiar facts and circumstances of this
case, we propose to condone this extreme delay. However, we
will modify the relief. In the present situation the husband of
petitioner was discharged with 20% disability, he should have
been given disability pension to the extent of 20% which was not
given to him and he died on 17th January, 1980. However, the
wife of the deceased now has approached Hon’ble Delhi High

TA No.373/2009
5
Court in 2009, therefore, petitioner will be entitled to disability
pension of her husband as a family pension on account of her
husband being discharged from service with 20% disability. This
petition was filed on 05th April, 2009, therefore, she will be entitled
to the arrears for 3 years preceding the filing of the present
petition. She will continue to get the family pension on account of
her deceased husband being suffering from disability. Arrears of
pension should be paid within three months from today. She will
be entitled to interest @ 12% per annum.
7. Petition is accordingly disposed of. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 22, 2010.
OA No.52/2009
1

NEW DELHI
O.A. No. 52/2009
Sepoy Kuldeep Singh Tomar .........Applicant
Versus
For applicant: Mr.Mohan Kumar, Advocate with Ms.Rashmi

Singh, Advocate
For respondents: Mr.Anil Gautam, Advocate
CORAM:

ORDER
24.02.2010
1. Applicant by present original application prayed that
order dated 19.07.2009 may be quashed and respondents may be
directed to release the subsistence allowance at the rate of 75%
of the last drawn pay along with all the arrears.

OA No.52/2009
2
present original application are that applicant joined the Army in
the year 1999 as a recruit and after successful completion of his
basic training at Rajput Regimental centre at Fatehgarh (UP) and
after due attestation, he joined 23rd Battalion of the Rajput
Regiment in the rank of Sepoy. He was on leave for 13 days from
03.11.2006 to 15.11.2006 and after completion of his leave, he
reported to Counter Insurgency Force (Delta), Rear on 16.11.2006
and from there he was reported to his unit i.e. 10 Rajput Regiment
on 18.11.2006 at Doda (J&K). The applicant to his utter surprise
was arrested on 04.12.2006 from the location of 10 Rajput
Regiment by a police party of Delhi Police. He subsequently,
came to know that he has been roped in a false and frivolous case
of murder wherein an FIR bearing no.398/2006 under section
302IPC has been lodged in the police station New Usmanpur,
Delhi. As a result of this arrest, he was placed under suspension
from the date of arrest by civil police i.e. 04.12.2006 and his salary
was also stopped from the same date. The applicant on
12.02.2007 while in judicial custody made a representation to his
Commanding Officer for payment of subsistence allowance as per
his entitlement but the said representation was rejected. The

OA No.52/2009
3
applicant thereafter made several representations but without any
result and then he filed a writ petition before the Hon'ble Delhi
High Court bearing no. Civil Writ Petition no.7672/2008 for release
of subsistence allowance. In that petition a direction was given by
the Hon'ble Delhi High Court to the respondent to examine the
case of applicant as per the policy on the subject. Relying on
aforesaid direction, respondents passed the order dated
19.07.2009 vide which the applicant was granted a sum of
Rs.200/- per month on a false ground that he is under going
punishment whereas he is not convicted and still under trial.
Aggrieved by this order, the applicant filed the present original
application before this Tribunal and submitted that as per Army
Guidelines, he is entitled to 75% subsistence allowance of basic
pay.
3. As against this respondents have filed their written
and submitted that since applicant is already under judicial
custody and his matter was examined by the Authorities and they
only granted a sum of Rs.200/- as subsistence allowance. In that
connection they have also relied upon the Guidelines (Annexure

OA No.52/2009
4
R-3) issued by the Authorities regarding withholding of pay and
allowance of persons subject to the Army Act placed under arrest
or suspension. In that connection they have pointed that
Guideline 5 a (ii) which says that in case where a grave offence
has been committed and it is proposed to withhold pay and
allowances up to 25 per cent of basic pay may be withhold.
4. We have heard leaned counsel for parties and
perused the file.
5. Learned counsel for the applicant has submitted that a
Guideline was issued by the Authorities in the shape of an order
namely Army Order No. 17/2001/DV. This Guideline has been
issued under Section 93 of Army Act read with Army Rule 194 and
this guideline reads as under :-
“5. The guidelines for withholding pay and allowances

under different circumstances are given below :-
(a) On suspension or on being placed under
arrest:-
(i) ..........................................................................
...
OA No.52/2009
5
(ii) In cases where a grave offence has been

committed and it is proposed to withhold pay
and allowances. Upto 25 per cent of basic
pay may be withheld.”
6. As per Guideline 5 which has been issued by the
Authorities under Section 93 of Army Act read with Army Rule 194
clearly transpires that the Authorities in case of a grave offence
and incumbent is placed under suspension because of the arrest,
his pay and allowances can be withheld upto to 25% of the basic
pay. But in the present case the Authorities have paid him only
Rs.200/- per month. It is not understandable under what provision
this paltry amount of Rs.200/- has been released by them.
Section 93 of the Army Act clearly says that during trial of an
offence the Authorities can withhold 25% of basic pay and rest of
pay and allowance shall be paid to him till pending result of his
trial. Section 93 reads as under :-
“93. Pay and allowances during trial.—In the

case of any person subject to this Act who is in
custody or under suspension from duty on a
charge for an offence, the prescribed officer may
direct that the whole or any part of the pay and
allowances of such person shall be withheld,
pending the result of his trial on the charge against
him, in order to give effect to the provisions of
clause (b) of sections 90 and 91.”
OA No.52/2009
6
7. Now in pursuance to the aforesaid Section, a
Guideline has been issued and as per this Guideline only 25% of
the basic pay can be withheld. Therefore, in these circumstances,
there was no option with the Authorities except to withhold 25% of
the basic pay. It is not enough that respondents have only paid
Rs.200/- per month which is not explainable in their detailed reply
filed by them or by their arguments placed before us.
Consequently, set aside the order of the respondents and direct
that respondents are free to withhold 25% of the basic pay and
release rest of the salary along with arrears within three months
from today. The arrears will carry interest @ 12% per annum.
8. This original application is allowed accordingly with no
order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 24, 2010.
TA No.188/2009
1

AT NEW DELHI
TA No.188/2009
Sh. G. Veerabahu .........Petitioner
Versus
Chief of the Air Staff & Others .......Respondents
For petitioner: Sh. Binay Kumar, Advocate.

For respondents: Sh. Rajat Gaur, Advocate with Flt. Lt. Vishal
Chopra.
CORAM:
ORDER
09.03.2010
1. The petitioner vide his petition seeks from Respondent
No.1 and 3 to make good the balance payment along with 12%
interest for treatment in an Ex-Servicemen Contributory Health Scheme
(ECHS).
2. The petitioner filed this petition before Hon’ble High Court
of Delhi as W.P. (C) No. 8762/2009 on 15th May, 2009 and was
transferred to the Tribunal on 03rd November, 2009.

TA No.188/2009
2
3. The petitioner served in the Indian Air Force for 17 years, 11
months and 18 days, and was released on 09th January, 2006. At the
time of retirement, he completed all formalities pertaining to
documentation including subscribing to the Ex-Servicemen
Contributory Health Scheme (ECHS).
4. The petitioner contends that with retirement he
automatically became a member of the ECHS vide the Second Edition
of the Handbook for ECHS released on 03rd March, 2005. Para 2 of
the ‘Introduction’ Chapter states :-
“2. The Scheme will be fully implemented by 31 Mar 08,

with a total of 227 Polyclinics in the country. Out of these,
123 Polyclinics will be at non-military stations and balance
104 Aug Augmented Armed Forces Clinics will be at
military stations. ECHS is a contributory scheme. Every
service person retired/retiring after 01 Apr 03 will
compulsorily become member of ECHS by contributing
his/her share. Similarly, all those who retired prior to 01
Apr 03 can become member by paying the contribution in
lump sum or in three equal annual instalments. There is
no restriction on age or medical condition.”
5. On 23rd June, 2006, the petitioner’s dependent father met
with a road traffic accident, in his home town at Madurai (Tamil Nadu).
His father was admitted in an ECHS empanelled hospital. He informed
all concerned of the admission and treatment.

TA No.188/2009
3
6. On 04th July, 2006, the Director, Regional Centre ECHS,
New Delhi issued a temporary certificate for ECHS membership with
effect from 04th July, 2006.
7. The father of the petitioner was discharged from the
hospital after making a payment of Rs.66,000/- since the OIC Poly-
Clinic of ECHS did not accept the temporary membership certificate
because the date of accident was 23rd June, 2006 i.e. before the
issuance of the temporary certificate.
8. In an appeal to the Chief of Air Staff, reimbursement of the
cost of treatment to the tune of Rs.24,726/- was made. This amount
was as per the ‘Contracted Rate’ for treatment between the ECHS and
empanelled Hospital. Appeals to reimburse the entire amount paid by
the individual was turned down as the ECHS could only reimburse the
‘Contract Rate’ as approved.
9. The learned counsels of the respondents argued that prior
to his retirement the petitioner was obliged to complete certain
formalities which included details of his dependents. Further, he was
required to submit an affidavit stating the known source of income of
his parents in order to qualify them to be declared as dependent. In

TA No.188/2009
4
this case, the formality was completed only in July, 2006. It, therefore,
implies that neither he nor his dependents were members till 04th July,
2006. The amount of Rs.24726/- reimbursed to him has been granted,
keeping in view the circumstances of the case.
10. We sought several details pertaining to the case from both
the petitioner and the respondents. All documents were furnished
except for the original form which was claimed to have been submitted
by the petitioner to the ECHS for grant of membership to him and his
dependents on the eve of proceeding on retirement.
11. From the documents so submitted, we observe that the
amount to be paid by the petitioner in order to become a member of the
ECHS, was deducted by the Dy. CDA (AF), New Delhi vide PPO No.
08/14/B/13545/2006 issued on 25th July, 2006. Defacto the amount of
Rs.1800.00 was deducted towards ECHS with effect from the date of
retirement i.e. 10th January, 2006.
12. Parents of the petitioner were declared as dependants in
his Discharge Certificate issued on 06th January, 2006. Besides, the
petitioner produced the copy of his Service Records which designated
his parents as ‘Dependants’ since 1990. It is therefore quite possible

TA No.188/2009
5
that the petitioner took it for granted that the affidavit regarding income
of parents in order to declare them as dependants is not essential,
since the service record already has designated them as dependents
since 1990.
13. However, the fact remains that contribution of Rs.1800/- as
was due from the petitioner was automatically made by the Dy. CDA
(AF) on the date of retirement of the petitioner entitles the petitioner to
be a legitimate member of the Scheme from that day and this includes
his parents. It is a settled law that once the amount due has been paid
and accepted as the ‘Premium’ for the Scheme, the membership is
accepted as ‘granted’, notwithstanding the accompanied formalities
that may be required to be completed by either of the parties.
14. We are of this considered view that the petitioner was a
legitimate member of ECHS from the day of his retirement and from the
day his contribution of Rs.1800/- was deducted by the Dy. CDA (AF),
New Delhi. That by virtue of becoming a member of the ECHS, his
legitimate dependents were entitled to the facilities of free
hospitalisation in the empanelled hospital. Thus, the father of the
petitioner was entitled for treatment as per accepted norms of the
ECHS in the empanelled hospital.

TA No.188/2009
6
15. Therefore, the amount paid by the petitioner to the
empanelled hospital i.e. Rs.66,000/- should be fully reimbursed after
deducting the amount of Rs.24,726/- already reimbursed. The
difference of amount may be recovered by the ECHS from the
empanelled hospital since the ‘Contract Rate’ agreement is between
the ECHS and the empanelled hospital. The individual has no role to
play in it.
16. We allow the petition and direct that Rs.41,274/- as the
balance along with the interest @ 12% be paid to the petitioner. The
exercise may be completed within 90 days of this order. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 09, 2010.
TA No.619/2009
1

NEW DELHI
T.A. No. 619/2009
Smt. Kusum Devi .........Petitioner

Versus
For petitioner: Sh. S.M. Dalal, Advocate

For respondents: Ms.Rashmi Singh, Advocate for Mr.Mohan
Kumar, Advocate with Capt Alifa Akbar.
CORAM:

ORDER
24.02.2010
2. The petitioner by this petition has prayed that order
dated 01.12.1999 passed by respondent No. 2 may be quashed
being arbitrary and perverse and respondents may be directed to

TA No.619/2009
2
grant special family pension to the petitioner w.e.f. 31st March,
1993.
present petition are that the petitioner is said to be the wife of
deceased Sepoy Santosh Kumar who was enrolled in Rajputana
Rifles on 18.08.1984 and after successful completion of training at
Rajputana Rifles Centre, Delhi, he was posted to 11 Rajputana
Rifles on 23.09.1985. He got married with the petitioner as per
Hindu Rites. Thereafter, husband of the petitioner was granted
two months annual leave from 06.01.1992 to 07.03.1992 by his
Commanding Officer. After expiry of the said leave husband of the
petitioner reported back in time for duty to his Unit and at that
time, his unit was deployed on Indo-Pak Border in J&K. After a
few months, the petitioner stopped receiving letters from her
husband nor did he come on leave again. Ultimately, she lodged
an FIR in Police Station Majhigawan, District Hamirpur, U.P. on
15th August, 1995 stating therein that her husband was missing
and remained untraceable. Thereafter, she wrote many letters to
various Authorities for release of family pension to her but without
any result. Therefore, she was driven to file the present writ
TA No.619/2009
3
petition before Hon’ble Delhi High Court which has been
transferred to this Tribunal after its formation.
have pointed that the husband of petitioner was discharged from
service because he was a habitual defaulter. A show cause
notice was given to him and thereafter, he was discharged from
service. They have also pointed out that he reached back to his
home town as per the statement of his father that he spent time
with him. Therefore, the petitioner is not entitled to any family
pension.
gone through the record.
6. Original record has been placed before us and we
perused the same. In original record, there is a clear endorsement
in the service record that husband of petitioner was discharged
from service. A show cause notice was shown to us which says
that show cause why his services be not terminated being habitual
defaulter. Thereafter, his services were terminated under Army
Rule 13 (3) (III) (V).

TA No.619/2009
4
7. After going through the original record and after
hearing both the counsels we are of the opinion that the husband
of petitioner was lawfully discharged from service and thereafter,
he was found missing and a report was lodged. This is a case
where the incumbent has not died in the service of the Army so as
to enable us to direct the respondents to release the pension to
the petitioner. We are satisfied that the incumbent was
discharged and after discharge he was found missing as such it
cannot be attributable to the Army service so as to enable the
Army to release family pension to petitioner. Hence, we do not
find any merit in the case. Same is dismissed. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 24, 2010.
(PRINCIPAL BENCH)
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OA No.13/2009
1

NEW DELHI
O.A. No. 13/2009
Capt Aditya Singh .........Applicant
Versus
For applicant : Col.S.R. Kalkal(Retd.), Advocate

For respondents : Col.R. Balasubramanian(Retd.), Advocate
CORAM:

ORDER
19.03.2010
prayed that he should be given war disability pension from the
date of discharge from service and he should be granted Rs. 1 lac
as exgratia payment as entitled as per Annexure A-8.

OA No.13/2009
2
2. Brief facts relevant for the disposal of present original
application are that applicant was selected for National Defence
Academy Kharkwasla, Pune in the year 1984. After undergoing
strenuous tough training for 3 years in National Defence Academy
and 1 year training at Indian Military Academy Dehradun, he was
granted permanent commission in the Army on 17.12.1988. In the
year 1990, he was posted with 11 Guard Battalion located at
Siachin glacier where he participated actively in operation
Meghdoot against Pakistan Army. In September, 1990 while he
was actively participating in the operation one boulder (stone) hit
his left knee resulting into injury. He was volunteered for
Parachute Commando and was attached with 10th Battalion of
Para Commando for training. He again developed pain in his
knee due to earlier injury and reported sick with medical
Authorities. He had ankle sprain while playing organised game of
Basket Ball on 27.06.1992 and was placed in low medical
category (temporary). He was placed before a medical board for
review and medical board found that injury in the left knee and
pain in the spine resulting into disability to the extent of 30%. He
was again placed in low medical category with restrictions of
employability „not fit for duties in combat or hilly terrain and

OA No.13/2009
3
extreme cold climate‟. Despite that, he was posted with 31st
Battalion of Assam Rifles located at Manipur which is
mountainous and high altitude. He found himself not been able to
cope up with the requirements of local unit, therefore, he
submitted his resignation from service. He requested for benefit
of war injury pension as per Government Notification dated 31st
January, 2001 but that was rejected. He filed an appeal but
without any result. Ultimately, he filed the present original
application before this Tribunal with aforesaid reliefs.
3. Respondents filed the reply wherein they pointed out
that applicant did not receive any war injury as there is no
corresponding record to show that he received the injury during
operation Meghdoot. On contrary it is pointed that applicant
received the knee injury while playing Golf and therefore, it is not
a war injury and he is not entitled to benefit of war injury pension.
perused the record.

OA No.13/2009
4
5. Learned counsel for the applicant invited our attention
to Government of India, Ministry of Defence order dated
07.02.2001 and submitted that once the injury has been recorded
by the Medical Board that will be final for life unless incumbent
asks for review. Learned counsel for the applicant heavily relied
on the aforesaid order and submitted that once the injury is
recorded then it should be final for life.
6. We have bestowed our best of our consideration to
the order dated 07.02.2001 and we are of the opinion that this
contention raised by the learned counsel for applicant not appears
to be well founded. In fact under the heading “Injury Cases”, Item
3 says “Assessment” which reads as under:-
“Assessment: The assessment with regard to

the percentage of disability as recommended by
the Invaliding Medical Board/Release Medical
Board as approved by the next higher medical
authority, would be treated as final unless the
individual himself requests for review”.
7. This in our opinion only means so far as the decision
given by the Release Medical Board will not be final and it cannot
be treated to be for full life unless the Medical Board records that
it is for life, permanently. Just because the Release Medical Board

OA No.13/2009
5
has said that particular injury is to the extent of 20% or 30% and it
is for the period of two years that will be final unless Medical
Board certified that it is permanent. Therefore, contention of the
learned counsel for applicant treating it permanently for life is not
correct on reading of this circular.
8. Learned counsel for the applicant next submits that
applicant received knee injury during the Operation Meghdoot at
Siachin. We called for the original record and we have gone
through the same. We find that there is no corresponding medical
record to show that the applicant received this injury during
Operation Meghdoot. It is recorded that applicant stated that he
received this injury somewhere in 1990 but he did not report this
and only reported this on 14.01.1992. This shows that had the
applicant received this injury during the Operation Meghdoot why
did he waited that long. This shows that he did not receive this
injury during Meghdoot operation. As per medical record he
received one ankle injury which is said to have been received by
the applicant during Basket Ball competition and knee injury he
himself admitted to have received while playing Golf. But after
going through the record we found that there is no corresponding

OA No.13/2009
6
record to show that the applicant received this knee injury during
Operation Meghdoot. Therefore, this contention of learned
counsel for the applicant does not appear to be correct. As per
the medical record so-called injury in the ankle received by the
applicant while playing Basket Ball Competition was assessed to
the extent of 30% for a period of two years. That two years have
expired long back and applicant did not approach the Authorities
for Resurvey Medical Board to assess that he still suffering that
disability on account of injury or not. Therefore, alternatively
learned counsel for applicant has submitted that now at least his
case may be referred to Resurvey Medical Board to assess
whether he still continues with old disability or not as two years
have expired long back. Ordinarily, we would have directed the
applicant to apply for Resurvey Medical Board but that will
unnecessarily take cumbersome exercise. To cut short the time,
we direct that Authorities may convene the Resurvey Medical
Board and send the case of the applicant to assess the disability,
if there is any. Applicant may request the Director General,
Armed Forces Medical Services and send copy of this order and
request that Resurvey Medical Board should be convened at
Command Hospital, Pune as he is residing in Pune.

OA No.13/2009
7
9. The present original application is accordingly
disposed of with aforesaid directions. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 19, 2010.
OA No.93/2009
1

NEW DELHI
O.A. No. 93/2009
Col S.K. Tiwari .........Applicant
Versus
For applicant : Maj K. Ramesh (Retd.), Advocate

For respondents : Col. (Retd.) R. Balasubramanian, Advocate
CORAM:

ORDER
22.03.2010
prayed that orders dated 25.10.2004 and 08.08.2008 as well as
the ACR for the period from 08 February to 13th August 2002
being subjective and contrary to the laid down procedures of
rendition of ACR be quashed and his case for promotion to the
rank of Brigadier be considered by the Selection Board.

OA No.93/2009
2
2. Brief facts which are necessary for the disposal of the
present original application are that applicant recruited in the
Indian Army on 01.09.1979 and he was reached up to the rank of
Colonel. When his case for promotion to the post of Brigadier
came up then he was not found suitable by Selection Committee.
Therefore, he filed a statutory complaint and an appeal before the
Ministry of Defence but without any result. Therefore, he filed the
present original application challenging the ACR for the period
from 08 February to 13th August 2002 on the ground that his over
all performance has been outstanding.
3. A written was filed by the respondents and the
respondents contested the position that case of the applicant was
considered with said ACR objectively by Selection Committee and
he was not found suitable, therefore, no illegality has been
committed.
OA No.93/2009
3
4. We have heard the learned counsel for parties and
seen the original ACR record. After going through the same, we
found that for the period from 08th February to 13th August 2002,
applicant has been over all assessed 8 marks and though for
some activities he has been given 7 marks. It is not for the first
time that he has been awarded 7 marks but earlier also petitioner
had received 7 marks. Therefore, there is no reason before us to
quash the ACR for the period from 08th February to 13th August
2002. ACR has been given in objective manner by the Initiating
Officer and confirmed by Reviewing Officer. Consequently, the
assessment given by the Initiating Officer is based on subjective
assessment arrived in objective manner. Therefore, there is no
merit in the present original application. Same is dismissed with
no order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
OA No.154/2010
1

NEW DELHI
O.A. No. 154/2010
Dr N.K. Kalia .........Applicant
Versus
For applicant : Ex Maj Manish Bhatnagar, Advocate
CORAM:
ORDER
22.03.2010
1. Applicant by this original application has prayed that
respondents may be directed to take up the matter with
International Court of Justice, International Organisations of
Human Rights and Government of Pakistan so that persons
responsible for the aforesaid gory acts of omissions and
commissions may be tried and punished under the local and
international laws to bring justice to the victims of the instant case
and to ensure that such acts which shake the human conscience
are not dared to be repeated by any individual or country.

OA No.154/2010
2
2. It is an unfortunate case in which dead bodies of Capt.
Saurabh Kalia, IC-58522-F, Sepoy Naresh Singh Sinsinwar,
Sepoy Banwari Lal Bagdia, Sepoy Mularam Bidiasar, Sepoy
Bhikharam Mudh and Sepoy Arjunram Baswana of the 4 JAT
Regiment of the Regular Indian Army were treated by the
Pakistan in a most atrocious manner. It is alleged that in the
month of May, 1999 4 JAT Regiment was deployed in Kaksar
area in Kargil Sector on regular duty on the Line of Control
between India and Pakistan. The Bajrang post named after the
Hindu God located well within undisputed Indian territory and was
under the area of responsibility of 4 JAT Regiment during the
period January, 1999 to June, 1999. The Bajrang Post has been
under the Indian possession since January, 1999.
3. In the first fortnight of May, 1999, a party under the
command of Capt. Saurabh Kalia consisting of aforesaid Sepoys
was sent to the Indian area of Bajrang Post under the lawful
orders of Commanding Officer of 4 JAT Regiment with the object
of reoccupying the said post. The entire party was wearing
uniforms and insignias of the Regular Indian Army as per the
terrain, weather and altitude. It is alleged that the said party was
OA No.154/2010
3
captured alive on 15th May, 2006 while they were on Indian
Territory and about to reach the Bajrang Post by the uniformed
troops under the control of Pakistan Army.
4. It is further alleged that between 15.05.2006 till
09.06.2006 all the members of the said party were under the
custody and control of the Pakistan Army. No intimation was sent
to the high channels of Government of India and in absence of the
information, the whole party was declared missing. Then the
dead bodies of the six persons were handed over in badly
mutilated condition by the troops of Pakistan Army on 09.06.2006.
As per the procedure casualty report raised and after necessary
post mortem the bodies were given to the parents and it was
found that the dead bodies of those officers were given in most
mutilated manner and they were tortured brutally like animal.
Therefore, applicant who is father of Capt Saurabh Kalia filed this
original application praying that such case of serious violation of
the human rights of the prisoners of war should have been taken
by the Government of India as per the Universal Declaration of
Human Rights and International Organisations and to the proper
Forum.
OA No.154/2010
4
5. The applicant, a pained father has been writing to
Government of India but without any result, therefore, he has
approached this Tribunal by filing the present original application.
6. We regret that we cannot entertain this original
application as it is not in our jurisdiction. However, the
Government of India may take proper steps in accordance with
law by bringing such kind of high handed action in serious
violation of human rights to the International organisations. Since,
we have no jurisdiction to entertain the matter, we do not find any
merit in the present original application. Same is dismissed on
merits. However, it is for the Government of India to take action in
the matter. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
OA No.211/2009
1

NEW DELHI
O.A. No. 211/2009
Lt Cdr Narvir Singh (Retd.) .........Applicant
Versus
For applicant : Col.S.R. Kalkal(Retd.), Advocate

For respondents : Sh.Anil Gautam, Advocate with Wg. Cdr.
Y. S. Sherawat
CORAM:

ORDER
22.03.2010
prayed that a direction may be issued to grant pro-rata pension to
him from the date of his discharge and a direction may be issued
to respondents to release service pension under Regulation 23 of
Pension Regulations for Navy.

OA No.211/2009
2
2. Brief facts which are necessary for the disposal of the
present original application are that applicant was commissioned
on 26.12.1966 in Indian Navy and then he sought voluntary
retirement and he retired on 31.03.1983. Thereafter, he joined the
Shipping Corporation of India Ltd. and from there he was
superannuated in April, 1989. Now the applicant has filed this
original application for grant of pro-rata pension for the period
during which he has served in Indian Navy.
respondents have pointed out that as per the Circular of the
Government of India dated 19.02.1987, there are two conditions
required for grant of pro-rata pension which read as under:-
“(i) while on deputation to Central Public

Enterprises exercise an option for permanent
absorption and are discharged/permitted to retire
prematurely from Defence Services for this
purpose.
(ii) are appointed in Central Public Enterprises on
the basis of their own applications sent through
proper channel in response to advertisements and
are permitted to retire prematurely from service in
the Defence Services for the purpose of taking up
the appointment in the Enterprises.”
OA No.211/2009
3
3. It is also pointed out that the applicant has not sought
premature retirement on the ground of permanent absorption in
Shipping Corporation of India Ltd. nor his application has been
forwarded to Shipping Corporation of India Ltd. through proper
channel as such he is not entitled to pro-rata pension as per the
Ministry of Defence letter dated 19.02.1987.
4. We have heard learned counsel for the parties and we
are of the opinion that applicant is not entitled to pro-rata pension
for the simple reason that both the conditions which are
mentioned in the letter dated 19.02.1987, have not been fulfilled
by the applicant. Neither the applicant had been sent on
deputation by the Indian Navy to Shipping Corporation of India
Ltd. nor his application was forwarded by the Government for
absorption in the Shipping Corporation of India. Applicant applied
on his own in Shipping Corporation of India Ltd. after his
premature retirement, therefore, applicant is not entitled to pro-
rata pension.
OA No.211/2009
4
5. Consequently, there is no merit in the present original
application. Same is dismissed. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
TA No. 372 of 2010 1
NEW DELHI.
T.A.No. 372 of 2010
[Arising out of WP(C)No. 4724 of 2007 of Delhi High Court]
Shri Ram Parshad …Petitioner
Versus
Union of India & Ors. …Respondents
For the Petitioner : Lt. Col. (Retd.) VD Sharma,Advocate
For the Respondents: Mr. Ankur Chibber, Advocate.
C O R A M:
HON’BLE MR. JUSTICE A.K.MATHUR, CHAIRPERSON
HON’BLE LT.GEN. M.L.NAIDU, ADMINISTRATIVE MEMBER
JUDGMENT
1. Petitioner by this Writ Petition has prayed that he may
be granted family pension with effect from 27th March,
2004 till life.

TA No. 372 of 2010 2
2. Brief facts which are necessary for disposal of this
petition are that petitioner is the father of deceased
soldier Sanjay Kumar (No. 15670385). Deceased
soldier Sanjay Kumar was enrolled in the Army (Corps
of Signal), Jabalpur, Madhya Pradesh, with effect from
5th July, 2001 and after basic training posted to 14
Corps O.P. Signal Regiment. He died on the night of
26th / 27th March, 2004 at the age of 25 years under
mysterious circumstances. The total service put in by
deceased was two years eight months and twenty days.
The cause of death was on account of poison of
substance.
3. It is alleged that deceased soldier was married with
one Renu and his marriage was solemnised in the year
2001. She was issueless and she also died on 27th
March, 2004 at parent’s house. Since the deceased

TA No. 372 of 2010 3
soldier died with issueless and his wife also died,
therefore, no Family Pension could be released to them.
4. Petitioner, who is father of deceased soldier, applied
for Family Pension and same was not given.
Consequently, he filed this petition for grant of Family
Pension.
5. A reply was filed by the respondent and the respondent
has pointed out that the deceased soldier was enrolled
in Army. While serving with 14 Corps Op Signal
Regiment, he was sent on 30 days part of annual leave
with effect from 19th February, 2004. On expiry of
the said leave he reported back to 229 Transit Camp on
20th March, 2004 for onward movement to his unit i.e.
14 Corps Op Sig Regiment. Accordingly, the petitioner
reported to 229 Transit Camp on 20th March, 2004.

TA No. 372 of 2010 4
6. Due to non-availability of courier/convoy to his
Regiment he remained in Transit Camp upto 25th March,
2005. On 26th March, 2004 he absented without leave
and deserted the Army and reached his home. On
reaching at home his dead body was found in the field
of his father on 27th March, 2004. Since the deceased
soldier left the Transit Camp without permission, he
was declared absentee without leave and a Court of
Inquiry was conducted by the Station Headquarter,
Rohtak.
7. It is alleged by the respondent that since the son of
the petitioner died while absent without leave,
therefore, the father is not entitled to the Family
Pension.
8. Petition was transferred from Delhi High Court to this
Tribunal, after its formation.

TA No. 372 of 2010 5
9. Learned counsel for the petitioner has invited our
attention to Army Instruction 51 of 1980, which deals
with ‘Grant of Ordinary Family Pension’. Army
Instruction 51 of 1980, which is relevant, reads as
under:
“In supersession of all existing orders on the

subject, the family pensionary benefits, as
detailed in paragraph 2 and subsequent paras will
be admissible to the families of the Armed
Forces personnel (excluding families of
reservists), who were in services on 1.1.1964 or
who joined/join service thereafter and who
died/die while in service or after retirement
with a retiring, disability or invalid
pension/special pension account of causes which
are neither attributable to nor aggravated by
service.”
Detailed procedure has been prescribed that what shall
be rates of Ordinary Family Pension. But clause 6 of
Army Instruction 51 of 1980 says that:
”Family for the purpose of family pension means:

TA No. 372 of 2010 6
(i) Wife/Husband provided the marriage

took place before retirement and also
judicially separated wife/husband if the
judicial separation was granted not on
ground of adultery and the person
surviving was not held guilty of
committing adultery.
(ii) Sons below the age of 25 years.
(iii) Unmarried daughters below the age of

25 years.
(iv) Sons and daughters adopted legally upto

the age limit (ii) and (iii) above.
Note: Sons or daughters born after retirement
and also a posthumous child are entitled to
Family Pension.
Clause 7 of Army Instruction 51 of 1980 says that:
“The pension will be admissible:

(a) To a widow or widower upto the date of death or
disqualification whichever is earlier;
(b) To a son until he attains the age of 25 years;
(c) To an unmarried daughter until she attains the
age of 25 years or marriage whichever is earlier;
TA No. 372 of 2010 7
Provided that if a son or daughter is suffering from

any disorder or disability of mind or is physically
crippled or disabled so as to render him or her unable
to earn a living even after attaining the age of 25
years the ordinary family pension shall be payable to
such son or daughter for life. [MOD letter No.
N49601/AG/PS-4(e)/3363/B/D(Pens/serv) dated
7/8/87].
Clause 13 of Army Instruction 51 of 1980, which is also
relevant, further says that “families of individuals who
have committed or commit suicide will also be eligible for
pensionary benefits detailed in this Instruction.”
Significantly, in this order parents have not been made
eligible for Ordinary Family Pension.
10. The contingency which is before us is that in case the
deceased soldier does not leave behind any widow or any
issues and only the next kin is the parent, then, in that
TA No. 372 of 2010 8
case, whether the parents will be eligible for Family
Pension or not.
11. Learned counsel for the respondent has submitted that
since parents are not included in the definition of the
Family Pension, as mentioned above, then, in that case, we
cannot read the general definition of Family to include the
parents, therefore, the order which confines to the
Members of the Family, as given in this order, should only
be entitled to Family Pension.
12. Learned counsel for the petitioner submitted that it is
true that specifically parents have not been included in the
definition of the family, but, in Regulation 216, in case of
Special Family Pension, parents i.e. mother and father
have been included in the definition of the family.
Therefore, it appears that there is bonafide omission for

TA No. 372 of 2010 9
not including parents in the definition of family in the
aforesaid order and, there appears to be no rationale that
why parents have not been included in the definition of
Family Pension under the Ordinary Family Pension, whereas,
in the case of Special Family Pension the parents are
included. Therefore, this is a case of omission and in cases
of omission court can supply the necessary lacunae for
advancing the cause of justice.
13. It is true that ordinarily we would not expand the
definition of Family given in this order. But in the
definition of family under Special Family Pension parents
have been included in the definition of the family given in
Regulation 216. Regulation 216 reads as under:
“216. Eligible members of the family: The

following members of the family of a
deceased individual shall be viewed as
eligible for the grant of a special family
TA No. 372 of 2010 10
pension, provided that they are otherwise

qualified:
(a) widow/widower lawfully married. It
includes a widow who was married
after individuals release/retirement/
discharge/ invalidment.
(b) Son actual and legitimate/including
validly adopted.
(c) Daughter, actual and legitimate/
(including validly adopted).
(d) Father.
(e) Mother.
(f) Brother.
(g) Sister.
Note 1: The term “widow” in the above or any
other regulation in this sub-section in
respect of special family pensionary
awards shall be deemed to include such a
widow who was married after the
individual’s discharge/invalidment.
Note 2: The term “child” used in the above or
any other regulation in this subsection in
respect of special family pensionary
awards shall be deemed to include such a
child born out of a marriage after
discharged/invalidment of the individual.
TA No. 372 of 2010 11
Note 3: The term ”father” and “mother” or

“parents” used in the above or any other
rule in this sub-section shall also be
deemed to include such putative parents
(or surviving parents as the case may be)
as had not contracted a lawful marriage,
but were living as husband and wife at the
time of, or got lawfully married subsequent
to, the conception of deceased member of
the forces.”
We do not see any reason why, in case of Ordinary Family
Pension, parents are not included
14. In a case like the present one when the father has lost his
child, without there being any issue, then the next kin are
parents. We do not see any reason why parents, who are
alive, should be ignored for grant of Ordinary Family
Pension. This appears to be a bonafide omission.
15. In this connection learned counsel for the petitioner has
invited our attention an order No. B/38207/AG/

TA No. 372 of 2010 12
PS4(b)/931/B/D(Pens/Serv) dated 26th August, 1998,
issued by Ministry of Defence, on the recommendation of
5th Central Pay Commission, and clause 4 of the order
makes the parents and widowed/divorced daughters
eligible for family pension w.e.f 1.1.1998. Clause 4 of the
order dated 26th August, 1998 reads as under:
“4. Admissibility of ordinary family pension

to parents and widowed/divorced
daughter will be effective from 1.1.1998
subject to fulfilment of other usual
conditions. The cases where ordinary
family pension has already been granted
to sons/daughters after 1.1.1998, before
issue/implementation of this letter
without imposition of earlier condition
need not be reopened.”
16. Therefore, in view of the subsequent order that leaves no
manner of doubt that the parents of the deceased soldier
are also entitled to the benefit of Family Pension.

TA No. 372 of 2010 13
17. In this connection learned counsel for the petitioner drawn
our attention to a decision of Punjab and Haryana High
Court, in the case of Jagan Singh v. Union of India & Ors.,
wherein, grant of Family Pension was upheld but court
declined to grant Special Family Pension.
18. Since the Government Order dated 26th August, 1998
makes it clear that parents are also entitled to pension
with effect from 1.1.998, therefore, there is no reason
why authorities denied this Family Pension to the
petitioner.
19. In this connection our attention was invited to a decision
of the Apex Court in the case of State of H.P. and Anr.
V. Kedar Nath Sood and Anr. [1998 (2) SCC 361], which
does not help the petitioner.

TA No. 372 of 2010 14
20. Now the question of payment of Ordinary Family Pension to
the parents is no more remains to be res integra i.e.
clinched by order dated 26th August, 1998 of Ministry of
Defence, Government of India. Accordingly, we allow this
petition and direct that the respondents should calculate
the Ordinary Family Pension of the parents of the
deceased soldier (Sanjay Kumar – No. 15670385) and be
paid with interest @ 12%. We would have ordinarily
confine the benefit for three years from the date of filing
this Writ Petition, but, looking to the advanced age of the
petitioner and the fact that this order was not available
with the petitioner, therefore, we direct that all the
amount of Family Pension of the parents of the deceased
Sanjay Kumar(No.15670385) should be worked out with
effect from 1st January, 1998 and shall be paid to the

TA No. 372 of 2010 15
petitioner with 12% interest. Petition is allowed. No order
as to costs.
______________________
[Justice A.K. Mathur]

Chairperson
_______________________
[Lt. Genl. ML Naidu]

Member (A)
New Delhi
26th March, 2010
TA No.79/2010
1

AT NEW DELHI
TA No.79/2010
Maj. Sudhir Pal Aneja (Retd.) .........Petitioner

Versus
For petitioner: Sh. Saurabh Seth, Advocate.

For respondents: Dr. Ashwani Bhardwaj, Advocate.
CORAM:
ORDER
22.03.2010
1. The case was transferred from Hon’ble Delhi High
Court to this Tribunal on its formation on 18th January, 2010.
2. Petitioner by this petition has prayed for quashing of
memorandum dated 19.04.1990 and order dated 17.05.1995
forfeiting his retiring pension w.e.f. 01.01.1994.

TA No.79/2010
2
3. The brief facts of the case are that the petitioner was
commissioned into the Indian Army on 11.06.1967. He served the
nation with diligence despite being a low medical category. He
sought voluntary retirement on compassionate grounds in
February, 1987. The premature retirement was sanctioned and
he was transferred to Reserve with effect from 31st July, 1987 with
liability of Reserve Service upto 31st March, 1994.
4. On retirement from active list, he joined a company
HCL from where he was recommended to go abroad for further
studies. He sought permission from the Government of India to
proceed abroad on 03.08.1988. The course in USA commenced
on 20.08.1988. The petitioner proceeded to USA without waiting
for the permission on 27.08.1988. His request to study abroad
was rejected on 12.02.1990. Government of India issued a Show
Cause Notice and on receipt of the reply his pension was stopped
with effect from 03.12.1994.

TA No.79/2010
3
5. The petitioner now seeks restoration of his pension for
having served for 20 years and 20 days.
6. Learned counsel for the petitioner argued that the
petitioner was entitled to his pension, as it was his right. As
regards prior permission to proceed abroad while on Reserve
liability he brought out that the Visa for USA was sanctioned only
on 27.07.1988. Accordingly, he applied for permission on
03.08.1988. Response to his request was sent to him on
12.02.1990 wherein his request was rejected.
7. Learned counsel for the respondents argued that as
per terms and conditions of the Reserve liability, the petitioner is
required to obtain permission to go abroad vide Army Instructions
10/5/63 amended vide Corrigendum No. 33/70. He also argued
that continuance of the pension depends on continued good
conduct. Besides the petitioner’s first application was dated 18th
August, 1988 which was received on 23rd August, 1988 while he
actually left the country on 27th August, 1988 without waiting for
the permission of the Government of India.

TA No.79/2010
4
8. We called for the original records and examined the
same. There was no record of the application dated 03rd August,
1988 as contended by the petitioner. The initial response by the
Army Headquarters dated 28th August, 1988 made it clear that the
petitioner case was being processed but will take time. Other
correspondence was also on record.
9. Continued good conduct is certainly a criteria for
receiving pension. Therefore, the conduct of the petitioner was in
violation of Army Instructions 10/5/63 as amended. Stoppage of
pension with effect from 03rd December, 1994 is fully justified.
10. However, having considered that the petitioner has put
in 20 years and 20 days of service on active list, a rational view
needs to be taken. The punishment meted out should be
commensurate with the crime. In this case, stoppage of pension
with effect from 03rd December, 1994 to date is appropriate for the
petitioner for having disregarded provisions of Army Instructions
10/5/63 as amended. As such the pension may be restored with

TA No.79/2010
5
effect from the date of this order. Petition is disposed of. No
order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
TA No.154/2010
1

NEW DELHI
T.A. No. 154/2010
Smt Anguri Devi .........Petitioner

Versus
For petitioner: Sh.M.K. Gaur, Advocate
For respondents: Ms.Jagriti Singh, Advocate for Sh.A.K.

Bhardwaj, Advocate
CORAM:
ORDER
22.03.2010
2. Petitioner by this petition has prayed that by a writ of
mandamus or any other appropriate writ order or direction, orders
dated 10.10.2005, 27.08.1993 and 15.09.2004 may be quashed
and set aside and respondents may be directed to grant the
special family pension to her in addition to ordinary family pension

TA No.154/2010
2
from the date of death of her husband i.e. 19.05.1991 with interest
and cost.
3. Brief facts which are necessary for the disposal of
present petition are that petitioner’s husband recruited in the
Indian Army and after serving near about 28 years of service, he
died on 19.05.1991 due to head injury in Base Hospital Delhi
Cantt while he was on casual leave which was granted by the
respondents and thereafter, the respondents granted the ordinary
family pension to the petitioner where as she is claiming for
special family pension as per rules. Therefore, she filed an
appeal but without any result. Consequently, she was driven to
file the present petition before the Hon'ble Delhi High Court which
was transferred to this Tribunal after its formation.
the position that while posted with 5, Haryana Battalion NCC,
Gurgaon, husband of petitioner was granted four days causal
leave from 18.05.1991 to 21.05.1991. During his casual leave on
18.05.1991, he fell from roof of his house at Village Surajpur,
Distt. Rewari, Haryana and was taken to Base Hospital Delhi
Cantt on 19.05.1991 where he was declared dead and

TA No.154/2010
3
accordingly a certificate was issued that cause of death of
petitioner’s husband is not attributable to military services.
However, petitioner being wife of deceased solider was granted
ordinary family pension under Rule 212 of Pension Regulations
for the Army 1961 (Part-I). The appeal of the petitioner for
granting special family pension was rejected on the ground that
cause of death of petitioner’s husband was not attributable to
military service as her husband has not died while leaving the
place of posting to home on casual leave or while he was coming
back after availing casual leave to the place of posting.
Therefore, death of petitioner’s husband is not attributable to Army
services and as such, she is not entitled to special family pension
under Rule 213 of Pension Regulations for the Army, 1961
(Part-1).
attention to decision of Hon’ble Supreme Court given in the case
of Madan Singh Shekhawat vs. Union of India & Others reported
in JT 1999 (6) SC 116. This judgment does not help petitioner in
any manner. In the case of Madan Singh Shekhawat (supra),
their Lordships interpreted the Rule 10/11 (a) and held that since
TA No.154/2010
4
an officer goes on casual leave, he is treated on duty and in case
he incurs disability when proceeding on leave to his house or
returning to duty from his leave, he is entitled to disability
benefits. In the present case as already pointed out that husband
of the petitioner died by falling down from the roof of his house
while getting it repaired. Therefore, he has not died in
contingency as referred in the case of Madan Singh Shekhawat
(supra). Consequently, we are satisfied that death of husband of
the petitioner is not attributable to Army service. The petitioner is
only entitled to ordinary family pension which she has already
getting. Petition is accordingly dismissed. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
TA No.157/2010
1

AT NEW DELHI
TA No.157/2010
Ex. Hav. Hari Ram Choyal .........Petitioner
Versus
For petitioner: Sh. S.M. Hooda, Advocate.

For respondents: Ms. Jagriti Singh, Advocate for Sh. A.K.
Bhardwaj, Advocate.
CORAM:

ORDER
1. The present case was received by the Tribunal from
Hon‟ble Delhi High Court on transfer.
2. The petitioner has prayed for quashing of impugned
orders No. G-3/57/391/6-2001 dated 23rd August, 2001 and No.

TA No.157/2010
2
B/40502/2040/02/AG/PS-4 (b) dated 09.12.2003. Further he
prays for grant of disability element of pension @ 50% w.e.f.
01.04.2001 along with interest and AGI Scheme.
3. The brief facts of the case are that the petitioner was
enrolled in the Army on 24.06.1985. In September, 1992 he was
found to be suffering from INTRA CAVERNOUS CAROTID
ANEURYSM for which he was operated. He opted for being
discharged and underwent a Release Medical Board on
17.01.2001. The Release Medical Board assessed his disability
at 40% and the disease as neither attributable to nor aggravated
by service. He was granted only service pension.
4. Learned counsel for the petitioner argued that since
the disease was non-existent at the time of the petitioner‟s
enrolment, it should be deemed to have arisen while in service,
and he is entitled to pension vide para 423 of the “Regulations for
Medical Services, 1983.”

TA No.157/2010
3
5. Learned counsel for the respondents produced the
original Release Medical Board proceedings and argued that
since the Medical Board has held that the disease suffered by the
petitioner was neither attributable to nor aggravated by service, he
was not entitled to disability element of pension. He further
argued that the petitioner was discharged from service with effect
from 01.04.2001 under Army Rule 13 (3) Item III (V) read in
conjunction with Sub-rule 2-A, being placed in medical category
lower than „AYE‟ having rendered 15 years and 281 days of
service. The petitioner was discharged as he was unwilling to
continue to serve further and not purely on medical grounds.
6. We have considered the arguments of both the sides
and have examined the case in detail. We feel that this case is
governed by Para 423 of Regulations for Medical Service, 1983
and the judgement given by this Bench in the case of Nakhat
Bharti Vs. Union of India (T.A. No. 48/2009) whereby it has
been held that since no record of disease has been noted at the
time of enrolment and no medical reasons have been stated for
the disease for not having been detected on medical examination

TA No.157/2010
4
prior to acceptance in service, the disease will deem to have
arisen during the service, which in this case was in September,
1992.
7. The case is also governed by para 173-A of the
Pension Regulations for the Army, 1961 which states that an
“Individual who is placed in a lower medical category other that ‘E’
permanently and who are discharged because of no alternative
employment in their own trade/category suitable to his low
medical category could be provided or who are unwilling to accept
the alternative appointment or who having retained in alternative
appointment have been discharged before completion of his
engagement, shall be deemed to have been invalided from
service for the purpose of the entitlement rules laid down in
Appendix II to these Regulations”. In this case, the petitioner
being a Havlidar was discharged on medical grounds after 15
years and 281 days of service.
8. In view of the foregoing, we uphold the contention of
the petitioner and direct that disability element @ 40% as per the
TA No.157/2010
5
Medical Board proceedings be granted with effect from his date of
retirement. Consequently, financial dues which may accrue, also
be paid with interest @ 12% to the petitioner within 90 days of this
order. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 23, 2010.
TA No.166/2010
1

NEW DELHI
T.A. No. 166/2010
Brig P.P. S. Pahwa .........Petitioner

Versus
For petitioner: Ms.Jyoti Singh, Advocate
For respondents: Col. Devender Singh with Lt. Col. S. George
CORAM:
ORDER
18.03.2010
2. Petitioner by this petition has prayed that by an
appropriate writ order or direction Annual Confidential Report
initiated in respect of the petitioner covering June, 1996 to August,
1996 and January, 2006 to June, 2006 may be quashed. He also

TA No.166/2010
2
prayed that complete record pertaining to complaint dated
15.10.2004, 18.09.2008 and 10.12.2008 submitted by him may be
called and the order passed thereon dated 23.04.2009 may be
quashed and his case should be reconsidered for promotion to the
post of Major General.
3. Petitioner was commissioned on 21.12.1975 in the
Regiment of Artillery of Indian Army in the rank of Second
Lieutenant. With passage of time, he went up to the post of
Brigadier and when his case was considered for promotion to the
post of Major General, he could not be selected. Therefore, he
filed non statutory complaint for expunging of the remarks of June
to August, 1996. The Chief of Army Staff by his order dated 11th
March, 2005 expunged certain remarks given in the ACR for the
year 1996 but the remarks which were given by the Technical
Officer i.e. HOA/S remarks were not expunged. It is alleged that
petitioner belongs to Artillery and the technical remark has to be
given by HOA/S but the remarks which have been given him is
based on the unexpunged remarks given by the RO and SRO.
Therefore, his assessment was based on the basis of
unexpunged remarks. It is submitted that because of the changed

TA No.166/2010
3
scenario when the Chief of Army Staff has already expunged
those remarks given by the RO and SRO and HOA/S has applied
mind on the unexpunged remarks and gave overall 7 marks, it is
submitted that the HOA/S was unconsciously or consciously
prejudiced by the remarks given by the RO and SRO and those
remarks having been expunged then the matter should be
reconsidered by the HOA/S without those remarks.
4. Learned counsel for the respondents submits that this
is an instance of the year 1996 i.e. almost 14 years back and no
useful purpose will be served by sending back it to HOA/S for
reassessment about the technical qualifications of the incumbent
and to reconsider the ACR of the petitioner for the period from
June, 1996 to August, 1996. It will all in fairness when the Chief
of Army Staff has already expunged the remarks and let the Chief
of Army Staff may reconsider the remarks given by HOA/S and
give him proper rating.
5. On this learned counsel for the petitioner does not
object.
TA No.166/2010
4
6. Accordingly, we direct that let the remarks which have
been given by the HOA/S for June, 1996 to August, 1996 may be
reassessed by the Chief of Army Staff. The Chief of Army Staff
may give his own assessment about the incumbent and
reconsider the remarks which have been given by HOA/S whether
they are in consonance with the other remarks or not. In case,
those remarks are modified or diluted then the case of petitioner
may be considered to the post of Major General with the changed
profile by the Selection Committee.
7. Petition is accordingly disposed of with above
observations. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 18, 2010.
TA No.437/2010
1

NEW DELHI
T.A. No. 437/2010
Ex Nb Sub Rattan Singh .........Petitioner

Versus
For petitioner: Sh.J.C. Malik, Advocate with Sh.Manohar Singh,

Advocate
For respondents: Sh.Mohan Kumar, Advocate with Ms.Rashmi

Singh, Advocate
CORAM:
ORDER
23.03.2010
2. Petitioner by this petition has prayed to issue an
appropriate writ for payment of 4 years of pay as Naib Subedar to
him amounting to approximately Rs.5,76,000/- and award him due

TA No.437/2010
2
benefits in his pension, commutation and gratuity, had he retired
after serving for 4 years in the rank of Naib Subedar.
3. Brief facts which are necessary for the present petition
are that petitioner joined the Indian Army on 11.08.1972 as a
regular Soldier and in due course, he was promoted to the post of
Lance Naik and Naik. He was promoted to the rank of Havaldar
with effect from 01.09.1989. It is alleged that due to personal
animosity on the part of Lt Col S.C. Basu, who was the initiating
officer in respect of his confidential report, being the commanding
officer, he spoiled the ACR of the petitioner for the year 1993 and
as result of this, he was denied the promotion to the post of Naib
Subedar as he was not found suitable. Aggrieved by this, he
approached High Court by filing a writ petition bearing
no.1857/1997 and Hon'ble Delhi High Court vide order dated
29.05.2001 allowed the petition and directed the Ministry of
Defence to reconsider the case of the petitioner for promotion to
the post of Naib Subedar. In compliance of this order passed by
Hon'ble Delhi High Court, the respondents passed the order on
2nd May, 2002 and directed that on the recommendation of
Review Departmental Promotion Committee, the petitioner is

TA No.437/2010
3
promoted to the post of Naib Subedar and is given notional
promotion from the date his juniors were promoted i.e. with effect
from 01.06.1990 with all consequential benefits as would be
entitled to him under the Rules. In pursuance of this, petitioner
was paid Rs.1340/- i.e. difference of salary from the rank of
Havaldar to the post of Naib Subedar from 01.01.1996 till his
retirement i.e. 31.08.1996.
4. Petitioner has now filed this petition and submitted that
as per the Defence Services Order 163, 1987 Edition, a JCO
when is promoted to the post of Naib Subedar is entitled to
continue up to 26 years of pensionable service or 50 years of age
whichever is earlier. Petitioner was promoted to the post of Naib
Subedar by the order dated 02nd May, 2002 with effect from
01.06.1996 when persons junior to him were promoted. In
ordinary course, he would have continued for two years of service
more. But the Authorities did not give him pay and allowance for
the period of two years and paid him only the benefits from the
date of order i.e. 01.01.1996 from the date of when persons junior
to him were promoted till the date he deemed to have retired on
31.08.1996. Therefore, learned counsel for the petitioner

TA No.437/2010
4
submitted that petitioner is entitled to at least 2 years of arrears of
salary for the post of Naib Subedar because he has retired as
Havaldar on completion of 24 years of service. Therefore, as per
the Regulation 163, he was entitled to continue upto 26 years
pensionable service and since respondents denied him this
benefit, they should be directed to pay him the arrears of salary
and other allowances pertaining to the post of Naib Subedar.
5. Secondly, learned counsel for petitioner submitted that
even after promoting petitioner notionally to the post of Naib
Subedar, he can be considered for promotion to the post of
Subedar and in case he is not promoted as Subedar, he is entitled
to further continue for a period of two years on the post of Naib
Subedar as per the recommendations of Fifth Pay Commission.
So far as this part is concerned, we have strong reservations
because promotion to the post of Subedar is subject to selection
by DPC and extension of two years is always discretion subject to
the suitability of the candidates. Therefore, benefit of deemed
promotion to the post of Subedar and further extension of two
years on the post of Naib Subedar cannot be granted to him.
However, he is entitled to pay and allowances for a period of two

TA No.437/2010
5
years on the post of Naib Subedar because he has not been given
the full benefits for the post of Naib Subedar i.e. 26 years service
has not been counted and only 24 years service has been
counted. Therefore, he is entitled to difference of salary for the
post of Naib Subedar for period of two years and other benefits
flowing therefrom. Accordingly, we direct all the consequential
benefits and the arrears should be paid to the petitioner. This
whole exercise should be done within 3 months from today.
6. Petition is accordingly allowed. No order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 23, 2010.
TA No.565/2009
1

NEW DELHI
T.A. No. 565/2009
Sepoy Jasbir Singh .........Petitioner

Versus
For petitioner: Wg Cdr (Retd.) H.M. Sethi, Advocate
For respondents: Sh.Anil Gautam, Advocate
CORAM:

ORDER
22.03.2010
2. Petitioner by this petition has prayed to issue
appropriate writ, order or directions, discharge order dated

TA No.565/2009
2
22.06.1999 issued by respondent no.1 may be quashed as
violative of Sections 43 and 44 of the Army Act. He further prayed
that respondents may be directed to convene fresh and
independent proper verification by the Military Agencies to
establish the true and correct facts, keeping in view the true
verification already done in his favour while with Territorial Army
and Defence Security Corps (DSC) and he may be reinstated in
service with full back wages, privileges and other emoluments as
are available to the regular employees.
present petition are that petitioner was recruited and enrolled in
114 Territorial Battalion Army (Jat Regiment) on 31.12.1983.
While at the centre of Territorial Army at Fatehgarh, his prescribed
and requisite verification was undertaken and details of his
personal particular, family particulars and antecedents were duly
and specially verified and were found to be absolutely correct and
thereafter, he continued to serve the Army as a Sepoy. During his
12 years of tenure in the Territorial Army, he has done a good
service and participated in operations like IPFK operation in Sri

TA No.565/2009
3
Lanka, operation named ‘Rakshak’ in Assam and operation
named ‘Pawan’ in Srinagar, Jammu and Kashmir. He has served
the Country with clean record. After rendering 12 years of
unblemished service, he was honourably discharged from
Territorial Army in terms and conditions with full benefits on
31.12.1995. Thereafter, he offered his services and was enrolled
in the DSC on 12.01.1996 and was posted at Centre at
Cannanore (Kerala). There also verification was carried out and
same was found to be correct. Therefore, he was posted to 883,
DSC Platoon attached to no.3 Wing, Air Force Station, Palam,
New Delhi with effect from 06.04.1996 where he was employed
under the Command of respondent no.2 for VIP and other security
duties which are assigned to DSC personnel and here first time in
his service career he was allotted with married accommodation
wherein he moved in with his family comprising of his wife and two
minor sons. While serving at Palam, he was shocked to receive a
show cause notice on 20.05.1999 served on him by respondent
no.1 through respondent no.2 dated 10.05.1999 alleging him for
impersonated himself as Jasbir Singh son of Sh.Mehtab Singh
and joined DSC whereas he is Satbir Singh son of Sh.Abhai Singh
and therefore, it was held that he is not desirable to be retained in

TA No.565/2009
4
services as being fraudulently enrolled in DSC. He was
discharged from service. Aggrieved by this, he filed the present
petition before the Hon'ble Delhi High Court which was transferred
to this Tribunal after its formation.
4. However, a reply was filed by the respondents and
respondents took the position that as per the record which has
been received, a special re-verification was made by Air
Headquarter that petitioner bearing No.10405020-H Sepoy Jasbir
Singh of 883 DSC Platoon is actually Satbir Singh S/o. Abhai
Singh and he is not Jasbir Singh S/o. Mehtab Singh. It is alleged
that all the verifications have been done through the Director
General, CID, Haryana and it has been found that he has
impersonated for Jasbir Singh.
5. Thereafter, when the matter came up before us we
directed that the verification may be done from the Zila Sainik
Board. Today learned counsel for the respondents has produced
before us the verification report conducted by Zila Sainik Board
and in that report they have annexed a certificate issued by the

TA No.565/2009
5
Sarpanch, Graam Panchayat, Bhadani, Zila Jhajjar wherein she
has stated that Jasbir Singh S/o. Sh. Mehtab Singh is the same
person and he is permanent resident of Graam Bhadani, Zila
Jhajjar and she has further certified that she knows the person
personally.
6. After receipt of this verification from the Graam
Panchayat, Bhadani, no manner of doubt remains here that there
has been some mistaken identity about the person and after
having been duly certified by the Sarpanch of that area that he is
Jasbir Singh, we see no reason why this fact should not be
accepted as against the so-called investigation conducted by the
other agencies. Incumbent has put in 12 years of service in the
Indian Army and he has already participated in the international
operations like Operation in Sri Lanka, there is no possibility of
petitioner being impersonated for Jasbir Singh. He is duly verified
when he was inducted into Defence Security Corps.
Unfortunately, on account of some wrong verification at the Air
Force Headquarter, a wrong report has been received that he is
impersonating for Jasbir Singh.

TA No.565/2009
6
7. In view of the verification received from the Zila Sainik
Board, we think that there was some mistake about the identity.
Therefore, order of termination dated 22nd June, 1999 is set aside
and petitioner be reinstated in service with all consequential
benefits.
8. Petition is accordingly allowed with no order as to
costs.
9. Verification report received from the Zila Sainik Board
may be kept on record.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
TA No.583/2009
1

NEW DELHI
T.A. No. 583/2009
Smt Usha Devi .........Petitioner

Versus
For petitioner: Sh.D.N. Sharma, Advocate
CORAM:

ORDER
22.03.2010
2. Petitioner by this petition has prayed that by a writ or
direction respondents may be directed to pay special family

TA No.583/2009
2
pension authorised to her vide Pension Payment Order No.
F/1468/79 with arrears at the rate as admissible from time to time
and respondents may be further directed to pay death gratuity and
other dues resulted with the death of her husband.
3. Brief facts which are necessary for disposal of the
present petition are that petitioner is the widow of deceased
Gunner Permanand who was medically invalided out of Army
service in the medical category of EEE on 10th April, 1977.
Subsequently, on death of her husband special family pension
was sanctioned to her vide pension payment order no.F/1468/79,
which was later modified to F/3300/83. Thereafter, her father-in-
law raised rival claim for retiral dues of her deceased husband.
The Officer-in-Charge Records (Artillery), Nasik Road authorised
payment to her an amount of Rs.2562.40 as death gratuity on
31.01.1984 and at the same time rejected his father-in-law’s rival
claim on the ground that in the light of rules governing the grant of
residual gratuity is not admissible to father Ram Swaroop as Smt.
Usha Rani is nominee/heir to receive the Death-cum-Retirement
Gratuity by the deceased husband. It is alleged that after the

TA No.583/2009
3
death of her husband, the petitioner with her teenaged son
Devendra Kumar was mercilessly turned out of her father-in-law’s
house. All the belongings of her late husband as well as
valuables of her personal belongings were also usurped. Then it
is alleged that her father-in-law engineered a complaint to pension
sanctioning authority that petitioner has remarried after her
husband death. Petitioner was not aware of any such
communication and then it is also requested that she is not
entitled to family pension. No show cause notice was given to the
petitioner by the pension sanctioning authority and without even
divulging to her contents of the complaint, her pension was
discontinued. She made a grievance to the District Soldier
Welfare and Rehabilitation Officer, Mathura but without any result.
She approached the Treasury Officer, Mathura for payment of
pension where she has been informed that there is a complaint of
her re-marriage, therefore, Controller of Defence Accounts
ordered stoppage of her pensionary benefits. Thereafter, she
went one place to another place but without any result.
Ultimately, she shifted to Mathura with her surviving son. A legal
notice was given to the respondents and thereafter she filed the
TA No.583/2009
4
present petition before Delhi High Court and it has now come up
before us after formation of this Tribunal for disposal.
4. A counter was filed by the respondents and
respondents in their counter have submitted that it is true that she
is the widow of late Gunner Permanent. It is also submitted that
she was granted special family pension @ 142/- from 08th
December, 1977 to 07th December, 1984 and Rs.125/- per month
from 08th December, 1984 till remarriage. But thereafter, this was
discontinued on the ground that she has solemnised remarriage
with Sh. Komal Prasad on 11th March, 1980, a person other than
real brother of the deceased soldier. Therefore, pension was
denied to her. On her incurring this disqualification, the Record
Officer, Artillery processed the claim of Sh. Ram Swaroop, father
of deceased soldier to PCDA, Allahabad on 11th March, 1980.
This was also rejected on the ground that average monthly
income from Halwaigiri was Rs.200/- per month which was more
than the scale of special family pension at that time. Hence,
father of the deceased incumbent was also not granted this
special family pension.

TA No.583/2009
5
5. We have heard learned counsel for the parties and
perused the record.
6. It is admitted that before recalling the order of special
family pension granted in favour of petitioner, she was not given
any notice whatsoever. In fact when the PCDA, Allahabad on so-
called complaint which was received from the father-in-law before
recalling the pension in favour of the petitioner, should have at
least given the notice disclosing about complaint of second
marriage. But no such notice was given to the petitioner.
7. Learned counsel for the respondents has produced
before us two communications, one of 22nd February, 2010 from
Colonel, Director Recruiting, Army Recruiting Office, 65, Taj Road,
Agra Cantt. in which it is pointed out that she has remarried to
another person namely Komal Prasad and it transpires that Komal
Prasad has also expired. The second communication is a report
from Post : Krishna Nagar, PS: Kotwali, Janpat, Mathura
addressed to Senior Superintendent of Police wherein it has been
mentioned that petitioner has not contracted any second

TA No.583/2009
6
marriage. She is residing in House No. F-25, Janakpuri, BSA
College Road.
8. Let both these documents may be kept on record.
9. But the fact remains that whether petitioner has really
contracted second marriage or not and on the basis of that her
special family pension was discontinued and she should have
been given a notice by PCDA, Allahabad before stoppage of
special family pension. This is in our opinion is breach of principle
of natural justice when the petitioner was getting special family
pension for such a long period from 1977 to 1980 and then
suddenly on so-called complaint received from the father-in-law,
her special family pension was discontinued by PCDA. Before
undertaking this revocation of pension, petitioner should have
been at least given a notice to show cause why her pension
should not be revoked on account of her remarriage but no such
step was taken and in back of the petitioner, her pension was
stopped. This is serious breach of principle of natural justice.

TA No.583/2009
7
10. Consequently, we set aside the order of PCDA,
Allahabad dated 11th March, 1980 and direct that petitioner should
be heard in the matter in the light of aforesaid two reports and
Authorities should reconsider the case for restoring special family
pension to the petitioner in accordance with law. It should be
decided as far as possible within three months from the date of
receipt of this order. Let the copy of this order may be sent to
Authorities for compliance of the directions as mentioned above.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 22, 2010.
TA No. 752 of 2009 1

NEW DELHI.
T.A.No. 752 of 2009

Air Cmde SK Misra …Petitioner

Versus
For the Petitioner : Mr. Narender Kaushik, Advocate

For the Respondents: Ms. Jyoti Singh, Advocate.
C O R A M:
JUDGMENT
1. Petitioner by this Writ Petition has prayed that he may be
given notional rank of Air Vice Marshal w.e.f. 1st April, 1994
and Air Marshal w.e.f. 1st July, 1996 with all consequential
benefits till the date of superannuation and disciplinary action

TA No. 752 of 2009 2
may be launched against the persons who have harmed his
case.
3. The petitioner was commissioned in 1961 in the Air Force as a
Electronic Engineer. In 1979 he was selected as a member of
the selection committee for purchase of Jaguar Air Craft. In
1984 he was selected to command the Electronics Repair
Laboratory of Ministry of Defence at Palam.
He was given promotion from time to time and he became Air
Commodore in November, 1990.
4. In 1989 he conducted an investigation for failure of defence
exercise at Bombay. In that it was established that failure was
due to poor deployment of radars and operational planning
under Air Marshal S.K. Kaul and responsibility for failure was
levelled against Air Marshal Kaul, therefore, he became biased
against the petitioner. Air Marshal Kaul has become Chief of
Staff in 1994. In 1994 the Promotion Board held and on
account of the bias of the Chief of the Staff, in order to settle
his score with the petitioner, he was denied the promotion.

TA No. 752 of 2009 3
5. Petitioner was selected by the Ministry of Defence to undergo
the course at National Defence College in 1993 and he
passed his course successfully in 1994 and was posted at Air
Headquarter.
6. Again, in 1994 he was bypassed without fault that some letters
got written against him by Sqn. Leader DK Ganguli because
he snubbed him for his slackness. Then, Sqn. Leader Ganguli
in league with Sqn. Leader Goel and other subordinates to the
petitioner manipulated and got a Court of Enquiry initiated
against him which ended with the finding that there was
procedural irregularity levelled against him were false. Then,
matter was enquired into by CBI in 1990. However, no action
was called for. The CBI cleared his name and the Court of
Enquiry decided in his favour and the Chief of Staff directed
no action called for against the petitioner.
7. Despite this he was not selected in 1994 for the post of Air
Vice Marshal. Similarly, Selection Board of 1995 and 1996 did
not found him fit for promotion. It is alleged that reason for
TA No. 752 of 2009 4
deferring his promotion in 1994 was pending CBI enquiry, but,
he was granted a ‘reproof’ by the Chief of Air Staff on 20 th
December, 1990. This was on account of certain irregularities
were found while he was commanding Advance Electronic
Laboratory of Indian Air Force at Palam. It is alleged by the
petitioner that because of his remark of 1990 of so called
‘reproof’ i.e. ‘censure’ seems to come in his way.
8. It is alleged by the petitioner that since he was granted reproof
in 1990 but he was made substantive in rank of Air
Commodore, despite this reproof, in 1991. As such the so
called reproof stand washed out on account of subsequent
promotion.
9. Since the promotions were not given to the petitioner,
therefore, he was driven to file petition in Delhi High Court and
the learned Single Judge of the Delhi High Court, after
considering the matter in detail found that the so called
‘reproof’, having been awarded in conclusion to CBI report,
stood washed away when petitioner was confirmed to the post

TA No. 752 of 2009 5
of substantive rank of Air Commodore. Learned single Judge
directed that his case should be reconsidered by the Selection
Committee.
10. Learned single Judge after summoning the record also found
that on the basis of the criteria laid down by the Ministry of
Defence i.e. three reports with overall numerical grading of ‘7’
and above in the last five years with two such reports having
been earned in the last three years, would be taken as a
guideline for clearing an officer for promotion, greater
emphasis should be placed on the officer’s potential to hold
the responsibility of the next higher rank as discerned from the
reports on him in various appropriate appointments held by
him in the past.
11. Learned single Judge also observed that keeping in view the
criteria in mind and after perusing the Board Meeting of 3 rd
February, 1994 shows that the petitioner met numerical
assessment criteria and it was only the report submitted by
CBI that his case was deferred.

TA No. 752 of 2009 6
12. But since the so called CBI report filed, ‘reproof’ was given,
which was not held against the petitioner when he was made
substantive rank of Air Commodore, then petitioner deserves
to be considered objectively as he fulfils the numerical grade.
That is the criteria laid down by the Ministry of Defence.
Therefore, he deserved to be considered for promotion,
though, a prayer was made that the petitioner should be
promoted by the Court, which was declined by the Court and
directed that in fitness of things the case of the petitioner be
considered for promotion to the rank of Air Vice Marshal for
the slot of 1994 on the basis of criteria laid down by Ministry of
Defence. A specific direction was given that “The Selection
Board will reconsider the case of the petitioner for the slot
1994 de hors the alleged report of CBI or any other
extraneous circumstance.”
13. In pursuance of the direction given by the learned single
Judge, Selection Committee again met and consider the case
of the petitioner and the Selection Committee, after due
consideration, did not find the petitioner suitable. Therefore,

TA No. 752 of 2009 7
the petitioner was driven to file the present petition before
Delhi High Court, which was transferred to this Tribunal, after
its constitution.
14. It is alleged by the petitioner that after the judgment of the
learned single Judge, petitioner’s ACRs were recorded in a
malafide manner and it was read out to the petitioner when the
matter argued before the Division Bench.
15. It is alleged by the petitioner that during the proceedings of
LPA No. 299/97, filed by petitioner, before Division Bench of
Delhi High Court, respondent tried to obstruct the petitioner
and tried to intimidate and coerce him to withdraw the LPA
and from the first week of March, 1998 he started receiving
threatening calls that if he did not withdraw the LPA he will be
posted at Hashimara in West Bengal. Petitioner reported this
to the High Court that petitioner being criminally intimidated
and there being surveillance against him and his family
residing at Noida/Delhi. Local Police in Noida apprehended
the surveillance party, which was headed by Squadron Leader

TA No. 752 of 2009 8
D Job, who informed the Police that he was carrying out
Surveillance on Air Commodore SK Misra on order from Air
Headquarter. The Division Bench called Inspector SP Singh
of UP Police and certain evidence was recorded in the Court.
16. It is also alleged by the petitioner that when he was posted at
Shillong, to attend the case he was denied the facility of airlift
from Guwahati to Delhi. It is also alleged by the petitioner that
respondent filed a Special Leave Petition before Supreme
Court, but, without any result.
17. The Judgment of the LPA NO. 299/97 could not be delivered
because Acting Chief Justice Shri Mahinder Narain passed
away.
18. It is also alleged by the petitioner that Review Promotion
Board convened by the Respondents, out of 13 members, 9
were junior to the petitioner as per the date of initial joining in
Air Force as Commissioner Officer. It is further alleged that
these 9 members were promoted during the pendency of the
litigation.
TA No. 752 of 2009 9
19. In the meanwhile, the LPA came before the Division Bench
and Division Bench directed that ongoing LPA may be
withdrawn and a fresh writ petition be moved bringing out the
new facts with regard to the Special Promotion Board
convened by the respondent as per order of the learned single
Judge.
20. Learned counsel for the petitioner has submitted that the
constitution of the Selection Board stands vitiated on the
ground that persons junior to the petitioner, who are
constituting the Selection Board were promoted during the
pendency of the petition. His case was placed for
consideration as per direction of learned single Judge. This is
in serious violation of principles of natural justice. In this
connection learned counsel for the petitioner has invited our
attention to a decision of the Supreme Court in the case of
‘AK Kraipak v. Union of India’ [AIR 1970 SC 150].
21. A detail was filed by the respondent and respondent took the
position that the selection was held as per the norms laid
TA No. 752 of 2009 10
down by the Ministry of Defence and all the persons who are
constituted Selection Board were Air Marshals and they were
all senior to the petitioner on the date of the meeting of the
Promotion Board. They were members of the Selection Board
in their own right. They were all two ranks above the
petitioner. There was no threat administered to the petitioner.
It is pointed out that eight members out of Selection
Committee of them did not even belong to engineering stream
from which the petitioner hails. It is also pointed out that
promotion channels for each stream are specifically
earmarked and posts are identified. Petitioner belonged to the
electronic stream and other persons belong to different
streams, therefore, there is no seniority between them.
22. It is also pointed by the respondent that if an officer moved
upto to the higher rank, he becomes senior to all of his course
mates or other officers who may be senior to him in the
previous rank but have not moved up or are promoted in the
subsequent year. Therefore, persons who constituted
selection board were senior to the petitioner. One may be

TA No. 752 of 2009 11
promoted early in one stream and other may not be because
of lack of posts in that stream. Therefore, the contention of
the petitioner is absolutely wrong. There is no question of
seniority involved as he belong to engineering stream and
eight of the persons, who constituted selection board, did not
belong to engineering stream. Therefore it is wrong to say
that petitioner has been judged by persons junior to him, who
were interested to safeguard their own promotion.
23. We have heard learned counsel for the parties and perused
the record. It is true that petitioner belong to engineering
stream and the learned single Judge found that petitioner had
numerical marking, but, at the same time it appears that apart
from numerical marking his performance in other areas has to
be considered that whether he is fit to hold a higher post or
not.
24. Therefore, in the present case, after going through the record
and after hearing the counsel, it appears that the case of the
petitioner was considered by the Selection Board consisting of

TA No. 752 of 2009 12
13 persons and out of them 8 persons did not belong to
engineering stream. The promotions in various wings of the
Indian Air Force depend upon the vacancy in their particular
stream and their suitability for the promotion. It may be that
one officer has been commissioned in engineering branch and
other officer has been commissioner in another branch. But
the persons in the engineering branch may not get promotion
because of lack of availability of the higher post, whereas,
from the other stream persons can get a promotion because of
the availability of the posts. Once a person is appointed in a
higher rank then naturally the seniority changes. As such the
contention of the petitioner that persons who are
commissioned along with him constituted the selection board
were junior has no relevance. Those persons in different
streams have been promoted earlier then petitioner became
senior to him. It is not a case of common cadre it is different
cadres relating to different streams. There are various
branches in Indian Air Force as such the contention of the
petitioner that the members constituting the selection board

TA No. 752 of 2009 13
promoted during the pendency of the litigation has no
relevance whatsoever. If such high selection board has
considered the case of the petitioner, as per direction given by
the High Court, and did not find him suitable then no
interference is warranted.
25. In the case of Kraipak (supra) their lordships observed that
the aim of rules of natural justice is to secure justice or to put it
negatively to prevent miscarriage of justice.
In the case of Kraipak the facts were different one of the
members of the selection board was a candidate before the
same selection board. Therefore, their lordships observed
that there is a reasonable likelihood of bias, but, that is not
case here. Here all the persons who have been selected in
their own stream and they have no personal interest in the
matter.
26. Learned counsel for the petitioner has also invited our
attention to ‘Air Vice Marshal Harish Masand v. Union of
India & Ors.’ [2004 VIII AD (Delhi) 429]. This was a case in
TA No. 752 of 2009 14
which promotion policy of 2002 of the Indian Air Force was
subject matter of challenge. By virtue of that promotion policy
selection board was given 20% marks. In that case their
Lordships struck down that policy, but, that is not the case
here.
27. Similarly, our attention was also invited to ‘Air Vice Marshal
SL Chhabra,VSM(Retd.) etc. v. Union of India & Anr. etc.’
[1993 Supp (4) SCC 441]. This case also does not help the
petitioner in any manner. In this case their Lordships clearly
laid down that Court cannot encroach over the powers of the
Selection Board, by substituting its own view and opinion, in
the absence of oblique motives attributed to the Selection
Board. It is also observed that selection by Selection Board
was not solely based on Appraisal Report. Merely on the
ground that adverse remarks in the Appraisal Report were
later expunged that cannot mean that the incumbent can be
selected on the basis of such expunging of adverse remarks.

TA No. 752 of 2009 15
28. After considering the facts we are of the opinion that in
pursuance of the order of the learned single Judge the case of
the petitioner was considered by the full selection board and
the selection board, after due consideration, did not find the
incumbent suitable. Therefore, we do not find any ground to
interfere in this writ petition. Consequently writ petition is
dismissed. No order as to costs.
______________________
Chairperson
_______________________
Member (A)
New Delhi
18th March, 2010
TA No.367/2010
1

NEW DELHI
T.A. No. 367/2010
Smt. Shakun Sharma .........Petitioner

Versus
For petitioner: Sh.Anil Kumar Bakshi, Advocate with Sh.A.K.

Shukla, Advocate.
For respondents: Ms.Barkha Babbar, Advocate
CORAM:

ORDER
25.03.2010
2. Petitioner by this petition has prayed that the
proceedings of unit court of inquiry and the declaration by the

TA No.367/2010
2
Army Unit (3 Infantry Division Signal Regiment c/o. 56 APO) that
her missing husband is a ‘Deserter’ since 05.11.2000 and her
husband as ‘missing’ initially and thereafter ‘presumed dead’ on
25.01.2001 be set aside. She further prayed that the terminal/
pensionary benefits may be granted to her in terms of
Government of India letter dated 03rd June 1988.
present petition are that petitioner is legally wedded wife of Army
person Lance Naik Pradeep Kumar of last unit 3 Infantry Division
Signal Regiment c/o. 56 APO. She belongs to rural and humble
background and her permanent home address is Village and Post
Akoda, District Bhind, Madhya Pradesh. She has 4 children i.e.
three daughters aged about 16 years, 14 years and 12 years and
one son aged about 7 years. Her husband was enrolled in Army
in March 1986 and his date of birth was 18.07.1967. He was
placed in Signals Department of the Army dealing with
Telecommunication within Army. Thereafter, he served in various
Army units. In September, 1999, he was posted to unit 2 Infantry
Division Signal Regiment in Leh (J&K). He last came on annual

TA No.367/2010
3
leave in June/July, 2000. Petitioner used to receive regular
phone calls from her husband. However, after January, 2001
when she did not get any call from her husband for sometime, she
got worried and she made enquiries from her husband’s last unit
and she was informed that her husband had not reported to unit.
A copy of Army unit letter dated 22.03.2001 is placed on record.
After learning that her husband had not reported to Unit, she
approached the Army Authorities vide letter dated 25.06.2001.
The Army Authorities vide letter dated 26.06.2001 informed her
that her husband had been declared deserter by his last unit.
Thereafter, vide Army unit letter dated 25.07.2001, she was
informed that her missing husband had been sent on temporary
duty with Rs.12000/- for some unit work at Chandigarh and all
service documents of her husband had been sent to Depot
Regiment, Jabalpur and her husband had been declared
‘deserter’. On 28.07.2001, her brother in law made a complaint
to Police Station Umari (M.P.) regarding his missing brother. The
said complaint was registered by Police Station Umari as ‘missing
person report serial no.7/2001’. Subsequently, vide Police
Certificates dated 31.07.2004 and 04.10.2005, the Police has
stated that nothing was known about her missing husband. After
TA No.367/2010
4
that, she approached the office of District Sainik Welfare Board
Jabalpur and vide letter dated 31.07.2001, the Army Authorities
were requested for necessary action in her case. Thereafter, she
went from pillar to post but without any result. Ultimately, she was
driven to file the present writ petition before the Hon'ble Delhi High
Court which was transferred to this Tribunal on its formation.
the position that a court of inquiry was held against the petitioner’s
husband for his illegal absence and he was declared deserter on
05th November, 2000. It is pointed out that the petitioner’s
husband has gone home instead of reporting to ‘N’ area of
Chandigarh where he was ordered for reporting. It is also pointed
out that petitioner’s husband had left the unit on 25.01.2001. It is
also pointed out that the he was habitual defaulter and he was
guilty of overstay leave and absenting himself without leave
several occasions.
5. Be that as it may but the facts remains that since
2001, petitioner’s husband has not reported alive. For all practical
TA No.367/2010
5
purposes, petitioner’s husband is missing. In such matters, a
order was issued by the Government of India dated 03.06.1988
which mitigates the hardships, which reads as under :-
“No. 12 (16)/86/D Pens/(Sers)

Govt. of India/Bharat Sarkar
New Delhi, Dated 3rd June, 1988

To,
The Chief of the Army Staff,

The Chief of the Naval Staff,
The Chief of the Air Staff,
Subject : REPLEASE OF DCRG, LEAVE ENCASHMENT AND

FAMILY PENSION IN RESPECT OF ARMED FORCES
PERSONNEL WHO ARE MISSING.
Sir,
A number of cases have been referred to this Ministry for
grant of terminal and other pensionary benefits to the families of
service personnel who have suddenly disappeared while in
operational and non-operational service and whose whereabouts
are not known. At present all such cases are considered on merits.
In the normal course unless a period of 7 years has elapsed from
the date of disappearance of the employee, he cannot be deemed
to be dead and therefore, the retirement benefits cannot be paid
to the family. This principle is based on Section 108 of the Indian
Evidence Act which provides that when the question is whether
the man is alive or dead and it is proved that he had not been
heard of for 7 years by those who would naturally have heard of
him had he been alive, the burden of proving that he is alive is
shifted to the person who affirms it. This has resulted in grate
hardship and distress to the families who have to wait for 7 years
before any terminal benefits could be paid to them.
2. The President is therefore, pleased to decide that when a

member of the Indian Armed Forces is declared missing while in
service the family will be paid the following benefits subject to
TA No.367/2010
6
adjustment of outstanding dues in respect of the missing

personnel, if any:-
Immediately after date of declaration of disappearance:
The amount of salary due, leave encashment due and DSOP/AFPP

Fund amount subject to nomination made by the missing
personnel
After lapse of one year from the date of declaration of

disappearance/presumption of death:
Family pension and DCRG etc. as admissible in normal conditions.
3. The above benefits may be sanctioned after observing the

following formalities:-
The family must lodge a report with the concerned Police Station
and obtain a report that the employee has not been traced after
all efforts had been made by the police.
The claimant will be required to furnish an indemnity bond with
two solvent sureties to the effect that all payments thus made will
be recovered from the amount due to the person if he/she
reappears and makes any claim.
4. The family can apply to the concerned authority for grant of

family pension and DCR Gratuity after one year from the date of
declaration of disappearance of the service personnel in
accordance with the procedure for sanction of family pension and
DCR Gratuity. In case the disbursement of DCR Gratuity is not
effected within 3 months of the date of application, the interest
shall be paid at the rates applicable and responsibility for the delay
fixed.
5. In case of officers, the respective Branch/Dte at Service
HQrs and in the case of JCOs/OR and equivalent in Navy and Air
Force, their respective Records Offices will process such cases with
CDA (O)/PAO/CDA (P)/CDA (Navy)/CDA (Air Force).
6. The provisions of this letter take effect from 29th Aug 86.
7. This issues with the concurrence of the Finance Division of
this Ministry vide their UO No.802-Pen of 1988.
Sd/-
(Y.K. Talwar)
TA No.367/2010
7
Desk Officer”
6. Previously if the incumbent is not found alive for a
period of seven years then he was presumed to be dead as per
Section 108 of the Indian Evidence Act. This rigour has now been
reduced by this order and by virtue of this order, immediately after
date of declaration of disappearance the amount of salary due,
leave encashment due and DSOP/AFPP Fund amount subject to
nomination made by the missing personnel should be issued after
lapse of one year from the date of declaration of
disappearance/presumption of death and family pension and
DCRG etc. as admissible in normal conditions. Those benefits
should be released to the incumbent after observing the
formalities like family must lodge a report with the concerned
Police Station and obtain a report that the employee has not been
traced after all efforts had been made by the Police. Second, that
the claimant will be required to furnish an indemnity bond with two
solvent sureties to the effect that all payments thus made will be
recovered from the amount due to the person if he/she reappears
and makes any claim. The family can apply to the concerned
Authority for grant of family pension and DCR Gratuity after one
year from the date of declaration of disappearance of the service

TA No.367/2010
8
personnel in accordance with the procedure for sanction of family
pension and DCR Gratuity. In case the disbursement of DCR
Gratuity is not effected within 3 months of the date of application,
the interest shall be paid at the rates applicable and responsibility
for the delay fixed.
7. This benevolent order of the Government should have
been implemented in letter and spirit when the petitioner has
already produced the Missing Report of the Police Station, Umari,
M.P. and the one year should be counted from the date of
disappearance of the incumbent. It appears that Authorities were
either not aware of this order or they deliberately ignored the
order. This is regrettable act and a responsibility should be fixed
that why so much delay has been caused in the payment to the
petitioner.
8. Accordingly, we allow this petition and set aside the
order passed by the Authorities declaring him deserter and direct
the respondents to release the entire amount which is due to the
petitioner as per the order dated 03.06.1988 and a proper enquiry

TA No.367/2010
9
should be made who is responsible for causing this delay. All the
arrears of the amount should be worked out and paid to the
petitioner within three months from today with interest @ 12%.
Petitioner is also entitled to the cost which is quantified in the sum
of Rs.10,000/-.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 25, 2010.
TA No. 756 of 2009 1
NEW DELHI.
T.A.No. 756 of 2009
Geja Singh …Petitioner
Versus
For the Petitioner : Mr.Sanjay Ghose, Advocate
For the Respondents: Ms.Jyoti Singh, Advocate.
C O R A M:
HON‟BLE MR. JUSTICE A.K.MATHUR, CHAIRPERSON
HON‟BLE LT.GEN. M.L.NAIDU, ADMINISTRATIVE MEMBER
JUDGMENT
1. Brief facts which are arising in this case are that
petitioner was court-martialled for committing murder of
one Sepoy Jagdev Singh of his Unit on 10th September,

TA No. 756 of 2009 2
1992. A Court of Inquiry was followed Summary Evidence
was. Petitioner was charged with Section 302 of I.P.C.
before General Court Martial, which was convened by the
order dated 9th April, 1994.
2. The prosecution examined large number of witnesses and
after that it found petitioner guilty under Section 304 of
IPC and convicted and sentenced for 10 years
imprisonment and the matter went for confirmation of the
sentence, then, same was sent back for revision of the
sentence and on 29th September, 1994 petitioner was
awarded life sentence.
3. Aggrieved against this order petitioner preferred the
present writ petition challenging the General Court Martial
proceedings. The petitioner was contested by the
respondent by filing a reply, and, thereafter, the case was,

TA No. 756 of 2009 3
on formation of this Tribunal, transferred to this Tribunal
for final disposal.
4. Learned counsel for the petitioner made two fold challenge
that the convening of the Court Martial Proceedings was
illegal and without jurisdiction, therefore, petitioner is
entitled to acquittal and alternatively learned counsel
submitted that this was not a case of murder, it was a case
of homicide not amounting to murder, therefore, the
conviction of the accused under Section 302 of IPC is not
correct.
perused the record. So far as the first question, whether
the Court Martial proceedings were rightly convened or
not. In this connection learned counsel for the petitioner
has invited our attention to the fact that the Judge
Advocate was appointed to assess the Court Martial was

TA No. 756 of 2009 4
not competent to be appointed as a Judge Advocate, as he
had not put in three years commissioned service and in this
connection learned counsel for the petitioner has heavily
relied on a decision of the Apex Court in the case of Union
of India & Anr. V. Charanjit S. Gill & Ors. [2000 (5)
SCC 742].
attention to Section 129 of the Army Act, 1950, which
reads as under:
“129. Judge-advocate.- Every general

court-martial shall, and every district or
summary general court-martial may, be
attended by a judge-advocate, who shall
be either an officer belonging to the
department of the Judge-Advocate
General, or if no such officer is
available, an officer approved of by the
Judge Advocate General or any of his
deputies.”
TA No. 756 of 2009 5
As per Section 129 a Court Martial has to be assisted by a
Judge-Advocate, who shall be either an officer belonging
to the department of the Judge-Advocate General or if no
such officer is available, an officer approved of by the
Judge Advocate General or any of his deputies.
7. Section 113 of the Army Act, 1950 provides the
Composition of general court-martial, which reads as
under:
“A general court-martial shall consist of

not less than five officers, each of whom
has held a commission for not less than
three whole years and of whom not less
than four are of a rank not below that of
captain.”
As per this the composition of General Court Martial shall
be not less than five officers, each of whom has held a
commission for not less than three whole years and of

TA No. 756 of 2009 6
whom not less than four are of a rank not below that of
captain.
Learned counsel for the petitioner has submitted that a
person, who is a Judge Advocate, should also have minimum
of three years commissioned service.
8. Rule 102 of the Army Rules, 1954 lays down the
disqualification of Judge-advocate, which reads as
under:
“102. Disqualification of judge-

advocate.- An officer who is
disqualified for sitting on a court-
martial, shall be disqualified for acting
as a judge-advocate at that court-
martial.”
9. A combined reading of Section 113 of the Army Act, 1950
with Rule 102 of the Army Rules, 1954 clearly transpires
that a person who is disqualified for sitting on a court-
martial shall also be disqualified for acting as a judge-

TA No. 756 of 2009 7
advocate in the court martial. Section 113 says that no
person shall be member of a court martial unless he had
put in three years commissioned service. Therefore,
learned counsel for the petitioner has submitted that a
Judge Advocate under Rule 102 is required to have a
minimum of three years commissioned service, for being
qualified to act as a Judge Advocate. In this connection
learned counsel submitted that one Lt. Victor Jeyraj Arun
Raj was appointed as a Judge Advocate in this case and he
was not having commissioned service for three years. In
this connection our attention was drawn to the case of
Charanjit S. Gill (Supra). Their Lordships held that the
Judge Advocate in this case was not equivalent to the rank
of delinquent. Therefore, they set aside the court martial
proceedings. However, in para 27 of the judgment it was
held to have prospective effect and did not apply

TA No. 756 of 2009 8
retrospective to all court martial proceedings. Para 27 of
the judgment reads as under:
“......... the judgments rendered by the Court

Martial which have attained finality cannot be
permitted to be reopened on the basis of law
laid down in this judgment. The proceedings
of any Court Martial, if already challenged on
this ground and are pending adjudication in
any court in the country would, however, be
not governed by the principles of “de facto
doctrine”. No pending petition shall, however,
be permitted to be amended to incorporate
the plea regarding the ineligibility and
disqualification of a Judge Advocate on the
ground of appointment being contrary to the
mandate of Rule 40(2). This would also not
debar the Central Government or the
appropriate authority from passing fresh
orders regarding appointment of the fit
persons as Judge Advocate in pending Courts
Martial, if so required.”
Learned counsel for the respondent has submitted that in
view of the decision laid down by the apex court, it will be
applied prospectively and not to the cases which have

TA No. 756 of 2009 9
already been convened and decided prior to the decision of
the apex court.
10. In this case the Court Martial proceedings were decided
way back in 1994. Therefore, we uphold the objection of
the learned counsel for the respondent that the ratio laid
down in the aforesaid case will not be applicable. Though,
in the present case, it appears that Lt. Victor Jeyraj Arun
Raj was appointed as Judge Advocate did not possess the
qualification, therefore, the convening of the court martial
was not proper, but, the ratio of this decision has been
made prospectively, as such, as per provisions of Rule 103
of the Army Rules, 1954, that this procedure irregularity
will not render it invalid. Aforesaid objection of the
learned counsel is overruled.
11. Now, coming to the merit of the matter. The prosecution
case is that in the night previous to the date of incident

TA No. 756 of 2009 10
i.e.10th September,1992 accused, deceased and other
persons consumed liquor and became highly intoxicant and,
thereafter, it is alleged that many people sodomised him
on the previous night. Next day in the morning when all
the people were fall-in for parade, the petitioner shot
down the deceased point blank by his gun on the ground
that on the previous night when he was drunk he was
sodomised by the deceased and he came to know of it in
the morning, after he woke-up, from one Sepoy Major
Singh who said that you were badly drunk and previous
night many other persons sodomised, that provoked him
and he shot down the deceased. This was supported by the
testimony of PW-9 Hav Gurmet Singh of 13th Battalion. He
has deposed that on 10th September, 1992 at about 0725
hours he was getting the Company fall-in and preparing the
Parade. There were 21 people in the fall-in in seven files

TA No. 756 of 2009 11
and brought the parade to attention position to give
report to Senior Junior Commissioner Officer, suddenly he
heard a sound of shot fired, thereafter, there was a
commotion in the parade. He went forward and saw the
accused in „Taanshastra‟ position. After 1 or 2 seconds the
second round was fired and Sepoy Jagdev Singh had
already fallen down and accused hit him with rifle butt
also. This was corroborated by other witnesses. It is also
deposed that the accused hit deceased Jagdev Singh and
told him that he will not spare him today.
Similarly, PW-11 Sepoy Manjit Singh, who was there in
parade when Havildar Major Gurmet Singh brought the
parade to attention he heard the sound of shot being
fired. When the first shot was fired, commotion in the
parade took place, and nobody could make out as to who
has fired, when the second round was fired by the accused
TA No. 756 of 2009 12
then he saw the accused hitting Sepoy Jagdev Singh with
the rifle butt. Then Sepoy Major Singh caught hold of the
accused and tied him to a tree. It is alleged that the
accused while hitting the deceased uttered that “you have
spoiled my life”.
Similar is the testimony of PW-12. Others are also stated
more or less same thing.
PW-6 Major Shri Chand of 13th Battalion took-up the
investigation has deposed that when he reached the spot
the accused was tied to the tree and he got him untied.
He also stated that accused wanted to speak to him in the
presence of Subedar Major Gurmail Singh so he called
Subedar Major Gurmail Singh and in presence of both of
them the accused stated that Sepoy Major Singh told the
accused that previous night when he was sleeping under
the influence of liquor Sepoy Jagdev Singh made all the

TA No. 756 of 2009 13
jawans of „C‟ company mount on him. PW-6 also deposed
that accused further told him that since he could not
withstand the humiliation he fired two rounds from his
own rifle at Sepoy Jagdev Singh. Same was confirmed by
Subedar Major Gurmail Singh.
12. In this background learned counsel for the petitioner
submitted that petitioner came to know in the morning
that he had been sodomised in the night when he was
drunk. He was so provoked that he could not stand this
humiliation, therefore, in the morning he shot the
deceased. Therefore, it is a case of a grave and sudden
provocation falling under Section 300 exception 1 of IPC,
which reads as under:
“300. Murder.- Except in the cases

hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused
is done with the intention of causing death, or-
TA No. 756 of 2009 14
Secondly.- If it is done with the intention of

causing such bodily injury as the offender knows
to be likely to cause the death of the person to
whom the harm is caused, or –
Thirdly.- If it is done with the intention of

causing bodily injury to any person and the
bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to
cause death, or –
Fourthly.- If the person committing the act

knows that it is so imminently dangerous that it
must, in all probability, cause death or such
bodily injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such injury
as aforesaid.
Exception 1. When culpable homicide is not

murder.- Culpable homicide is not murder if
the offender, whilst deprived of the power of
self-control by grave and sudden provocation,
causes the death of the person who gave the
provocation or causes the death of any other
person by mistake or accident”
However, the exception is followed with certain provisos
that the provocation is not sought or voluntarily provoked

TA No. 756 of 2009 15
by the offender as an excuse for killing or doing harm to
any person. Secondly, provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly, the provocation is not given by anything done in
the lawful exercise of the right of private defence. The
explanation further says that whether provocation was
grave and sudden enough to prevent the offence from
amounting to murder is a question of fact.
In this connection learned counsel has drawn our attention
to a decision of the Apex Court in the case of Hansa
Singh v. State of Punjab [1976 (4) SCC 255] in the
similar circumstances the accused was convicted under
Section 304 Part-II of IPC.
13. In the present case, when the accused came to know in
the morning through one Subedar Major Singh that when

TA No. 756 of 2009 16
he was in intoxicating condition deceased and other
members of the company sodomised him, he could not
contain himself and soon after that he rushed to the place
of parade ground, where all other people, including the
deceased were standing in attention position, and shot the
deceased with his rifle. This is corroborated by Sepoy
Major Singh and Subedar Major Gurmail Singh, who tied
the petitioner to the tree. At the first instance the
accused has given the explanation for killing the deceased
because of the fact that he came to know in the early
morning that he was sodomised in the previous night. The
question of grave and sudden provocation depends upon
the facts of each case and no hard and fast rule can be
laid down. In the present case there is a great proximity
between the provocation and the act of shooting the
deceased. In fact, the accused did not apply his mind

TA No. 756 of 2009 17
that the information received by him was correct or not,
but, he felt so, provoked by the disclosure of Sepoy Major
Singh, he could not resist himself and resorted to the act
of shooting the deceased point blank. It is true that he
could have made certain enquiries and could have verified
it. But the very fact that early morning when he came to
know about he felt so humiliated that he did not apply his
mind to verify the fact and rush to the place where the
entire platoon was in attention position for morning
parade and shot the deceased.
14. Therefore, in these circumstances, we can appreciate that
the provocation was sudden and grave and it was not a
premeditated affair. Had there been a little more gap in
time, then, it would have been different, but, when he
came to know in the morning, that while he was sleeping in
drunken condition, deceased & other members of the

TA No. 756 of 2009 18
company sodomised him that provided him sufficient
ammunition to be provoked and he resorted to this act of
shooting the deceased point blank. This, in our opinion,
falls in exception-I to Section 300, that under a grave
and sudden provocation he fired at fire at the deceased.
While doing so, he himself uttered the words, which were
supported by other witnesses, that „he ruined my life‟.
The time lag was very short between provocative
information and penultimate act. As such, we are of the
opinion that this case will squarely fall in exception-I of
Section 300 of IPC and petitioner should be given benefit
of exception-I. Accordingly, we hold that petitioner is
not guilty of committing murder intentionally. He did it
under the grave and sudden provocation, therefore,
homicide does not amount to murder. Consequently, we
convert the conviction of the accused from Section 302

TA No. 756 of 2009 19
to Section 304 (Part-I) of IPC and reduce the life
sentence to that of 10 years imprisonment. The appeal is
allowed in part and sentence of the accused is reduced to
10 years imprisonment. In case the accused has already
served out the sentence, then, he may be released
forthwith. In case the accused has not served out the
sentence and was on bail, then, he may be sent back to the
jail for serving out remaining part of the sentence. The
appeal is allowed in part. No order as to costs.
______________________

Chairperson
_______________________

Member (A)
New Delhi
29th March, 2010
TA No.419/2009
1

NEW DELHI
T.A. No. 419/2009
Cfn/VM Mahendra Singh .........Petitioner

Versus
For petitioner: Sh.D.S. Kauntae, Advocate.
For respondents: Ms.Rashmi Singh, Advocate for Mr.Mohan

Kumar, Advocate.
CORAM:

ORDER
27.03.2010
2. Petitioner by this petition has prayed that respondents
be directed for early disbursement of provident fund amount i.e.
Rs.18,615/- lying with respondent no.5 with 14% interest per
annum with effect from 03.03.1994 till actual date of payment in

TA No.419/2009
2
his favour in his bank account no.1036, Syndicate Bank, Branch
Dautana, District Mathura, Uttar Pradesh.
present petition are that petitioner was enrolled in EME Corps
Army as a Cfn/VM. He was granted 60 days annual leave from
03.01.1994 to 03.03.1994. While he was on leave, he sustained
injury due to falling of a stone slab on his head at his residence,
as a result of which he lost his memory as well as consciousness
and remained under treatment for a long time and as such he
could not join back his duty. Accordingly, he was dismissed from
services with effect from 20.05.1997 u/s.20 of the Army Act, 1950
without issuing show cause of action to him or without having any
such information from the department. He was found to be
deserter. Thereafter, he requested respondent no.3 for release of
outstanding/balance amount lying with them including the
undisbursed provident fund amount but without any result.
Consequently, he approached the Hon'ble Delhi High Court by
filing present writ petition which was transferred to this Tribunal on
its formation.
TA No.419/2009
3
pointed out that in order to release the provident fund balance to
the petitioner some requisite documents were sent to him for
completion and early return through Zilla Sainik Board vide EME
Records letter dated 07.06.1999 but he did not submit the said
documents in time and instead submitted applications dated
12.12.2003, 02.02.2004 and 16.03.2004 for the desired relief. In
reply to said applications, they again forwarded a set of requisite
documents for completion and early return vide office of EME
Records letters no.07.02.2004, 21.02.2004 and 25.03.2004
addressed to his advocate. It is alleged that on receipt of
contingent bill and mode of payment certificate duly completed in
all respect from the petitioner, the same were forwarded to PAO
(OR) EME, Secunderabad, the audit authority, for pre-audit and
early issue of cheque for Rs.18,615/- in favour of Syndicate Bank,
Mathura (UP) vide office of EME Records letter no.14593331K/
DES/4A/NE-II, dated 22.05.2004. Accordingly, a cheque bearing
no. AS-863269 dated 30.11.2004 for the said amount was issued
by CDA, Secunderabad and forwarded to PDA of the petitioner
i.e. Syndicate Bank, Dautana Branch, PO Dautana, Mathura
District, UP vide PAO(OR) EME (Fund Cell) letter no. IEM/1017/

TA No.419/2009
4
1104 dated 10.11.2004 for crediting the same in the petitioner’s
bank account no.1036. Thereafter, petitioner had never
approached/complained the respondents regarding non-credit of
said amount in his bank till 06.05.2008 and also the said cheque
has not been received back from the bank by CDA
Secunderabad. Hence, on not being received any representation
from the petitioner for above amount, it is presumed that amount
had been received by the petitioner. Thereafter, petitioner filed
the present petition for disbursement of provident fund amount. It
is pointed out that they have already appraised with Syndicate
Bank, Dautana, Mathura and CDA Secunderabad for resolve the
issue by issuing duplicate cheque vide office of EME Records
letters no.14593331/Court Case/Pen dated 24.03.2009 and
14593331/Court Case/Pen dated 12.04.2009 and consequent to it
PAO (ORs) EME has issued a fresh cheque for Rs.18,615/- on
account of AFPP fund balance vide cheque no.011098 dated
19.05.2009 and same was forwarded to PDA of the petitioner i.e.
Syndicate Bank Dautana, Mathura for the payment of same.
According to the petitioner, it was received by him in June, 2009.
Therefore, now the question remains is payment of interest.

TA No.419/2009
5
5. Learned counsel for the petitioner submitted that so
far as the provident fund is concerned, it is brought on credit
balance sheet every year in the month of February. The amount
of Rs.18,615/- was stood when the petitioner was in service i.e. in
the year 1994. Thereafter, petitioner because of head injury could
not report and ultimately he was dismissed from service on
20.05.1997. Therefore, learned counsel for the petitioner submits
that petitioner is entitled to interest on the amount of Rs.18,615/-
for a period of three years i.e. from the date when he was in
service i.e. 1994 till the date of his dismissal and he is also
entitled to interest on the amount in question till June, 2009 when
actual amount has been received by him.
6. After going through the reply filed by the respondents
it appears that it is a case of sheer heartlessness on the part of
the respondents. A man is dismissed from service in the year
1997 and he could not get provident fund till June, 2009, what can
be more sad state of affairs than this. It is the responsibility of the
respondents that they should have ensured that the amount of
provident fund be released to the petitioner forthwith or as far as
possible within three months from the date of order of his

TA No.419/2009
6
dismissal i.e. 20.05.1997. But the respondents did not react and
the petitioner had been writing constantly to the respondents and
requesting for the release of the payment of the provident fund
and they said that the certain papers were sent to the petitioner
for fulfilling the requirements and that was only completed
somewhere in the year 2004. Who is responsible for this delay in
the matter? When a soldier is dismissed from service because he
could not join back on account of injury, there should have been
some responsibility on the part of the respondents to see that the
amount is worked out and immediately given instead of entering
into the unnecessary filling up of some papers. Even if it was
required to be done then it should have been completed within
three months time from 20.05.1997 i.e. up to August, 1997 instead
of entering into an unnecessary correspondence. It is too much to
expect from a poor Sepoy to understand the implications of these
documents. Respondents have many agencies like Sainik Board
etc. One courier could have been sent to his house or the
services of Sainik Board could have been utilised to get all the
necessary documentation completed within three months. But
that was not done. It only shows great apathy on the part of the
TA No.419/2009
7
respondents in dealing with the matters of poor Sepoys.
Therefore, petitioner is entitled to interest.
7. In this situation, we direct that the provident fund of
the petitioner with interest from the year 1994 till 20.05.1997 when
he was dismissed should be worked out. After adding the interest
from 1994 till 20.05.1997, from first September, 1997 i.e. after
three months period given to them to clear all the formalities till he
got the amount i.e. June, 2009, he is entitled to interest @ 12%
per annum. The entire amount should be worked and paid to the
petitioner within a period of three months.
8. The petition is allowed with cost in the sum of
Rs.10,000/- for unnecessary driving the petitioner from pillar to
post.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 29, 2010.
TA No.491/2009
1

NEW DELHI
T.A. No. 491/2009
Ex Nk Jai Prakash .........Petitioner

Versus
For petitioner: None.
For respondents: Sh.Anil Gautam, Advocate for Ms.Saroj Bidawat,

Advocate with Capt Alifa Akbar.
CORAM:

ORDER
27.03.2010
2. Petitioner by this petition has prayed that the
respondents may be directed to grant him service pension on his

TA No.491/2009
2
rendering 15 years of service from the date of his dismissal i.e.
w.e.f. 13.07.1996 along with arrears of pension and gratuity. He
has further prayed that a declaration may be given that he is
entitled to service pension from the date of his conviction i.e. from
13.07.1996 as the District Court Martial has not passed any
further order for forfeiting the pensionary benefits.
3. Petitioner had completed more than 15 years of
service in the Army which is minimum requirement for grant of
pension. However, he was charge sheeted before the District
Court Martial along with two other persons on 29.05.1996 under
section 69 of the Army Act read with Section 34 and 201 of the
IPC. After completion of the Court Martial proceedings, he was
punished along with other two colleagues and he was dismissed
from service with the reduction of rank and to suffer rigorous
imprisonment for six months. This punishment was confirmed by
the confirming Authorities. Against this petitioner filed a petition
before the respondents but the same was rejected. Meanwhile
petitioner also filed a petition before the Hon’ble President of India
for grant of pension as he had put in 15 years of service. The

TA No.491/2009
3
petition filed by him before the Hon’ble President of India appears
to have not been decided till date as per the reply filed by the
respondents.
4. In reply, respondents have only taken the position that
according to Regulation 113 (a), a person who is dismissed from
service, is not entitled to pension but the President of India has
discretion to grant service pension or gratuity at the rate not
exceeding that for which he would have otherwise qualified had
he been discharged from the same date. The petition was filed by
the petitioner before the Hon’ble President of India on 14.02.1998
and the reply was filed by the respondents in this petition on
07.03.2000 but they did not mention that what is fate of the
representation filed by the petitioner invoking the provisions of
Regulation 113 (a) whether petitioner’s petition filed before the
President of India has been considered favourably or not. Today
we are in 2010 still respondents are not in a position to inform
what is the fate of petition filed by the petitioner before the Hon’ble
President of India. Consequently, we direct let the petition filed by
the petitioner before the Hon’ble President of India on 14.02.1998,

TA No.491/2009
4
if not decided, may be decided forthwith and petitioner may be
informed thereof, if not informed so far.
5. Petition is disposed with above observations. No
order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 29, 2010.
TA No.286/2010
1

NEW DELHI
T.A. No. 286/2010
Ex Nk Bhagwana Ram .........Petitioner

Versus
For petitioner: Sh.S.M. Hooda, Advocate.
For respondents: Sh.Anil Gautam, Advocate.
CORAM:

ORDER
30.03.2010
2. Heard learned counsel for parties.
be directed to pay him the service pension for the services
rendered in the D.S.C. with effect from 01.11.1990 and also pay
the arrears along with interest thereon.

TA No.286/2010
2
present petition are that petitioner was enrolled in the Army on
19.06.1954 and he was transferred to pension establishment on
19.10.1969. He was re-enrolled in D.S.C. on 29.03.1976 and he
was discharged from there on attaining the age of superannuation
on 31.10.1990 after rendering 14 years 7 months and 3 days of
service and this is to be computed as 15 years qualifying service
for pension. Therefore, he submitted that he is entitled to two
pensions i.e. one from the spell he served in Indian Army and
second from the spell he served in D.S.C. Therefore, he filed the
present petition before the Hon'ble Delhi High Court which was
have pointed out that petitioner has already exercised his option
long back in the year 1983 wherein he opted that his both services
may be combined together for the purposes of counting qualifying
period for grant of pension. This is apparent on record from the
option certificate dated 12.04.1983. Since the petitioner himself
has exercised his option i.e. his Army service and D.S.C. service
may be counted together for the purposes of pension and same

TA No.286/2010
3
has been counted and that comes to about 29 years of service.
Petitioner had already been granted pension on that basis.
Therefore, it is not open for the petitioner now to withdraw the
option which he exercised way back in the year 1983. In this
connection learned counsel for respondents invited our attention
to the decision of Division Bench of Hon'ble Delhi High Court
dated 24.08.2005 in WP(C) no.5964/2003 titled as ‘Ex Nk Sanwat
Ram vs UOI’ and in WP(C) no.7351/2003 titled as ‘Ex Nk Roshan
Lal vs UOI’ wherein in identical situation, the Division Bench has
declined to interfere in the matter as once the option being
exercised by the incumbent then it is not open for him to revoke
the same. Therefore, there is no merit in the petition. Same is
dismissed with no order as to costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 30, 2010.
TA No.150/2010
1

NEW DELHI
T.A. No. 150/2010
Lt Col Shrawan Kumar Jaipuriyar .........Petitioner

Versus
For petitioner: Sh.S.R. Mittal, Advocate with Sh.G.D. Rustagi,

Advocate.
For respondents: Ms.Jyoti Singh, Advocate.
CORAM:

ORDER
30.03.2010
2. Petitioner by this petition has prayed to quash the
order/letter dated 21.12.2004 issued by the respondents, to the
extent the impugned order excludes from its purview the Lt.
TA No.150/2010
2
Colonels of the Army Medical Corps. He also prayed that
respondents may be directed to extend the benefit of terms and
conditions of promotion of the said order to Lt Colonels in the
Army Medical Corps also with effect from 16.12.2004.
3. Petitioner is a doctor in the Indian Army and
commissioned in the Army on 01.11.1971. He retired on
30.06.2005 on attaining the age of superannuation i.e. 56 years.
He has challenged the order dated 21.12.2004 by which
restructuring of the officers’ cadre of the Army was undertaken
and service conditions for the Army officers of all Arms Services
except AMC were revised and the officers of AMC were not
benefitted by this restructuring. The petitioner has challenged this
order being discriminatory as the other officers in the rank of
Lieutenant, Captain, Major, Lieutenant General and Colonel (Time
Scale) were given the benefit whereas the officers of AMC were
not stand benefitted by this order. Therefore, petitioner grievance
is that he was retired on 30.06.2005 on attaining the age of 56
years whereas the officers from other Rank allowed to continue
beyond 56 years. This anomaly has been corrected by the
respondents by issuing another letter dated 28.10.2005 and by

TA No.150/2010
3
virtue of this restructuring of non-select ranks in officers Cadre of
Armed Forces Medical Services, a sanction has been issued by
the Hon’ble President by giving the benefit to AMC officers i.e. for
rank Lt Colonel and equivalent, the reckonable commissioned
service shall be 11 years and for Colonel (time scale) and
equivalent, the reckonable commissioned service shall be 24
years and likewise the age of superannuation in case of officers of
AMC had been 58 years for Colonel and equivalent. The relevant
Clause 4 (d) reads as under:-
Age of superannuation : The officers of AMC and AD

Corps on promotion to the rank of time scale Colonel
(&Equivalent) shall retire on superannuation on
attaining the age of 58 years which is the age of
superannuating for the rank of Colonel (&Equivalent)
Select grade. Officers of AMC(NT) cadre on
promotion to the rank of time scale Colonel shall retire
on superannuation on attaining the age of 56 years, as
at present.
4. By virtue of this restructuring of age of
superannuation, the grievance of the petitioner is that now all the
Colonels will also be entitled to retire at the age of 58 years
instead of 56 years but this Notification came on 28.10.2005
whereas he stood superannuated on attaining the age of 56 years
on 30.06.2005. This order further says in clause 8 that this order

TA No.150/2010
4
will be applicable with effect from 16.12.2004 and same is
reproduced as under:-
These orders will be applicable with effect from 16 Dec

2004 Revision in pay and pension due to promotion
wherever applicable, to officers who have retired
during the period intervening between 16 Dec 2004
and the date of issuance of this letter, will be reviewed
with retrospective effect from 16 Dec 2004.
5. In consequence to this, on 03.12.2005 the petitioner
was granted substantive promotion to the rank of Colonel (Time
Scale) with effect from 16.12.2004 meaning thereby that he was
notionally promoted from 16.12.2004 and is entitled to benefit upto
the age of 58 years as per order dated 28.10.2005 but
unfortunately on attaining the age of 56 years he was retired on
30.06.2005. While passing the aforesaid order giving him
promotion from 16.12.2004, the respondents have not given him
consequential benefits following therefrom. As it is apparent that
order dated 28.10.2005 has been made retrospective from
16.12.2004, the petitioner has already retried on 30.06.2005.
Therefore, he should have given the benefit of 2 years service as
he retired at the age of 56 years. Respondents are directed to
treat the petitioner as notionally promoted with effect from
16.12.2004 and retired at the age of 58 years. All the arrears of

TA No.150/2010
5
difference of salary and all other benefits following therefrom be
paid to the petitioner within 12% interest. This whole exercise
should be done within 3 months from today.
6. The petition is accordingly allowed. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 30, 2010.
TA No.211/2010
1

NEW DELHI
T.A. No. 211/2010
Maj Gen Mrs. Usha Sikdar .........Petitioner

Versus
For petitioner: Sh.P.D.P. Deo, Advocate.
For respondents: Col. (Retd.) R. Balasubramanian, Advocate.
CORAM:

ORDER
30.03.2010
Hon‟ble Delhi High Court to this Tribunal on its formation.
may be directed to withdraw their letter dated 30th April, 2004 and
restore her status and other Nursing Officers at par with all other
officers of the Indian Army as per laid down orders, rules and
TA No.211/2010
2
regulations of the Indian Armed Forces. She also prayed that
respondents may be directed to restore all the privileges
enshrined in the Army Act, Army Rules, and Army
Order/Regulation for the Army as applicable to various rank. It is
also prayed that respondents may be directed to allow her and all
Brigadiers of the Military Nursing Services to use star plates and
flag on their official vehicle corresponding to their ranks when
using the official staff car while in service which is authorised to
them as per the rules and regulations of the Indian Armed Forces.
present petition are that petitioner was commissioned/appointed
as Lieutenant in the Military Nursing Services (in short MNS) on
21.09.1967. She was appointed under the authority of President
of India and same was presented in the Gazette of India dated
24.07.1968. She continued to serve in Armed Forces and with
passage of time she reached to the position of Major General on
01.07.2003 and she was appointed as Additional Director General
of Military Nursing Services (in short ADGMNS). On her
promotion as Major General and appointed as ADGMNS, she
made her official tour to Indian Naval Hospital Ship (in short
TA No.211/2010
3
INHS), Asvini, Mumbai. The visit was carried out on 17th and 18th
August, 2003. During visit to INHS, Asvini, Mumbai, she was
humiliated and insulted by the Commanding Officer of the
hospital, Rear Admiral V.K. Singh by unceremoniously denying
her authorised staff car i.e. a car with star plate signifying her rank
and a flag signifying her appointment. The matter was reported
to the DGAFMS and DGMS(Army) immediately after the
conclusion of her visit and representation was put up to the
DGAFMS and senior Colonel Commandant, Army Headquarters
vide letter dated 05.09.2003 but no reply has been given to her
representation. The Adjutant General‟s Branch, Army
Headquarters issued a letter dated 28.04.2004, labelling
unfounded and baseless allegations made by her, in addition to
that she was warned without any statutory authority, not to display
stars and fly flag on her official vehicle which is entitled to her
being a commissioned officer. She had no other option than to
implement the directions of Adjutant General‟s Branch and she
had to discontinue displaying star plates and flag on her official
vehicle. As a sequel to this harassment, Adjutant General‟s
Branch again issued a letter on 30.04.2004 and disseminated the
same to all concerned unit. The highlights of the order issued by

TA No.211/2010
4
the Adjutant General‟s Branch are that Indian Military Nursing
Officers are not covered under the definition of „Officer‟ as given in
Section of Army Act 3(XVIII) Army Act, 1950 and it is also
mentioned that MNS was raised vide Indian Military Nursing
Ordinance 1943, in that, MNS officers are appointed as „officers of
Indian Military Nursing Service‟ implying that officers of MNS are
not part of the Armed Forces/Regular Army and therefore, not at
par with rest of the officers of the Indian Army and it was finally
ordered that under the provisions of existing Army
orders/Regulations for the Army, Nursing officers are not
authorized to fly flags or display star plates. Aggrieved by this
discrimination and denying the status of officers of Indian Army
she sought personal interview with the Chief of Army Staff and the
Chief of Army Staff assured her that all grievances of the MNS
officers would be looked into and all the privileges which had been
arbitrarily withdrawn would be restored. However, the assurance
given by the Chief of Army Staff was not adhered to. Petitioner
again filed representation to the Chief of Army Staff on 30.06.2004
drawing his attention to his assurances. Ultimately, having failed
at all levels, she was driven to file the present writ petition before
TA No.211/2010
5
the Hon'ble Delhi High Court with aforesaid reliefs and the same
was transferred to this Tribunal on its formation.
took the position that petitioner was not recruited under Army Act
and Rules and she has been recruited under Indian Military
Nursing Ordinance 1943 and she cannot be treated to be part of
Regular Army. As such she cannot be considered at par with
officers who are regularly recruited under Army Act. Specially
learned counsel for respondents has drawn our attention to
definition of „officers‟ given in Section of Army Act 3(XVIII) Army
Act, 1950.
bestowed our best of consideration.
6. Petitioner was recruited under the Indian Military
Nursing Ordinance, 1943. The Ordinance was issued in exercise
of power conferred by section 72 of the Government of India Act,
1935 and this Ordinance still holds field till date. Section 3 lays
TA No.211/2010
6
down the Constitution of the Indian Military Nursing Service which
reads as under :-
“3. Constitution of Indian Military Nursing

Service.-- (1) there shall be raised and maintained, in
the manner hereinafter provided, as part of the armed
forces of the $$ (Union) and for service with @@@
(the Indian) Military forces an auxiliary force which
shall be designated the Military Nursing Services
(India).”
7. As per Section 3 the force recruited under the Military
Nursing Service shall be part of the Armed Forces and it is an
auxiliary force, which shall be designated the Military Nursing
Services (India).
8. Section 5 says about the members of commissioned
rank which reads as under :-
“5. Members to be of commissioned rank—All

members of the $ (Indian Military Nursing Service)
shall be of commissioned rank and shall be appointed
as officers of the $ (Indian Military Nursing Service)
by the Central Government by notification in the
Official Gazette.”
9. Section 9 says about application of Indian Army Act,
1911 to members of Indian Military Nursing Service which reads
as under:-
TA No.211/2010
7
“9. Application of Army Act and Indian Army

Act, 1911, to members of Indian Military Nursing, to
members of Indian Military Nursing Service.—(1)
The provisions of the Indian Army Act, 1911, shall, to
such extent and subject to such adaptations and
modifications as may be prescribed, apply to members
of the Indian Military Nursing Service as they apply to
Indian commissioned officers, unless they are clearly
inapplicable to women.”
10. Section 10 provides empowers the Central
Government to frame rules to carry out the purposes of this
Ordinance and Section 11 further empowers the Chief of Army
Staff to make regulations consistent with this Ordinance and the
rules made thereunder, providing for all matters to be laid down by
regulations, and generally for all details connected with the
organisation, pay, allowances, duties, discipline, training, clothing,
equipment and leave of members of the Indian Military Nursing
Service.
11. In exercise of power under section 10, Military Nursing
Service (India) Rules, 1944 were framed. In that the definition
given in Rule 2 (c) says “the appropriate Act” means in relation to
an officer of the Nursing Services the Act, whether the Army Act
(44 & 45 Vict. C. 58) or the Indian Army Act, 1911 (VIII of 1911),
as applicable to her by virtue of section 9 of the Ordinance and

TA No.211/2010
8
these Rules. The expression “Commanding Officer” in the
provisions of the appropriate Act relating to courts-martial and to
the powers of a Commanding Officer and in these Rules means
the military officer in command of the hospital or other unit in
which she is serving or to which she is attached. The expression
“regimental” in the Army Act and in these Rules means connected
with the Nursing Services or any corps or other sub-division
thereof.
12. Rule 3 reads „application of appropriate Acts‟. It is
relevant for all purposes which read as under:-
“3. Application of appropriate Act.—In so far as

they are capable of such application but subject
to the provisions of these Rules—
(a) the provisions of the Indian Army Act, 1911, shall
apply to officers of the Nursing Services
mentioned in Sub-section (1) of section 9 of the
Ordinance, as if they were Indian commissioned
officers, and
(b) the provisions of the Army Act shall apply to
officers of the Nursing Services mentioned in
Sub-section (2) of the said section, as if they
were officers of the Regular Forces;
and reference in the said Acts to military ranks shall, in
relation to the Nursing Services, be construed as
references to the corresponding ranks laid down in the
Regulations made under the Ordinance for officers of
the Nursing Services.”
TA No.211/2010
9
13. So far as application of appropriate Act is concerned,
the provisions of the Indian Army Act, 1911 shall apply to the
officers of the Nursing Services mentioned in sub-section (1) of
Section 9 of the Ordinance, as if they were Indian commissioned
officers and the provisions of the Army Act shall apply to officers
of the Nursing Services mentioned in Sub-section (2) of the said
section, as if they were officers of the Regular Forces.
14. Rule 5 says about modification of the Army Act. It
says the provisions of sections 4 to 41 of the Army Act, only
sections 15 and 40 shall apply to offences committed by officers
of the Nursing Services referred to in sub-section (2) of section 9
of the Ordinance and those sections shall have effect in relation to
such offences as if they were modified as follows:-
(i) Section 15—“An officer who absents herself

without leave commits an offence against this
Act”.
15. Further procedure has been given how the
punishment can be awarded and about summary of punishment
and courts martial.

TA No.211/2010
10
16. In this background the recruitment of the nursing staff
is undertaken and by virtue of provisions of the Ordinance, 1943
and rules framed thereunder. One important aspect emerges is
that Military Nursing Services are part of the Indian Armed Forces
and has to be construed as an “auxiliary force” of the Indian
Armed Forces and they are fictionally treated as an Indian
commissioned officers and they are also treated as part of the
regular forces. From this, what emerges is that they will have the
same status and same entitlements as is applicable to the officers
of the Indian Armed Forces. Now, this is amply clear by the
various orders issued from time to time i.e. with regard to relative
Rank mentioned in clause (b) of para 733 of Chapter XVII of
Regulations for the Army and same reads as under :-
“Women officers serving in the Army Medical Corps and

officers in the Military Nursing Service will rank equally
with male officers of the same titular rank e.g., a captain
(woman officer) in the Army Medical Corps, will rank
equally with a captain in the Artillery or Engineers.”
17. Similarly is the Army Order 353/73 under the heading
of „Saluting MNS Officers‟. The relevant portion reads as under :-
“AO 353/73 Saluting—MNS Officers

Military Nursing Service Officers are required to salute
and are entitled to salutes in the same manner as
other commissioned officers.”
TA No.211/2010
11
18. Similarly with regard to the use of National Flag, this
has been given as per the ranks of the officers and same will be
applicable to the petitioner also who has equivalent rank to the
members of the Indian Army.
19. From these provisions of the Acts, Rules and the
Military Orders issued from time to time leave no manner of doubt.
Though petitioner was recruited as per Indian Military Nursing
Ordinance, 1943, she is members of the Military Nursing Service
which is an “auxiliary force” and part of the Indian Armed Forces
and she has also been equated with the same rank and as per the
rank she is authorised to all entitlements which are admissible to
regularly recruited commissioned officers of the Armed Forces.
20. Learned counsel for the respondents has seriously
contested the position and submitted that despite all this,
petitioner was not recruited under the Army Act, 1950 and she
cannot be treated to be an officer as defined under Section of

TA No.211/2010
12
Army Act 3 (XVIII). Section of Army Act 3 (XVIII) defines officers
which reads as under :-
“Officer means a person commissioned, gazetted or in

pay as an officer in the Regular Army, and includes:-
(a) an officer of the Indian Reserve forces.
(b) an office holding a commission in the Territorial
Army granted by the President with designation
of rank corresponding to that of an officer of the
Regular Army who is for the time being subject
to this Act.
(c) an officer of the Army in India Reserve of
Officers who is for the time being subject to this
Act.
(d) an officer of the Indian Regular Reserve of
Officers who is for the time being subject to this
Act.
(e) (Omitted)
(f) in relation to a person subject to this Act when
serving under such conditions as may be
prescribed an officer of the Navy or Air Force.”
21. It is true that the petitioner was not recruited under the
Army Act, 1950 but she was recruited under Military Nursing
Ordinance, 1943 and as per the provisions of the Ordinance as
well as the rules, she has been fictionally treated as regular
member of the Indian Armed Forces, though she was not
recruited directly under the Army Act, 1950 and rules framed
thereunder. But for all purposes she will be treated as a regular

TA No.211/2010
13
member of the Indian Armed Forces and she will be authorised to
the entitlements which are commensurate to the concerned rank.
Simply by a technical objection as per Section of Army Act 3
(XVIII), she cannot be treated not to be a part of Indian Armed
Forces or commissioned officer under the Army Act, that will not
distract from the fact that for all purposes she will be treated at par
with the officers of the Indian Armed Forces. The objection that
she does not fall in Section of Army Act 3 (XVIII) makes no
difference. Once she has been given a status of regularly
recruited officers of Indian Army and she has been specifically as
per Rule 3 given the status of Indian commissioned officer and
officers of the regular force, practically she falls under the
extended definition of an officer of the Indian Armed Forces also.
Simply because she has not been recruited under the Army Act,
that will not in any way reduce her status from commissioned
officer of regular Indian Army. Technically she may not be given
status under the definition of Section of Army Act 3 (XVIII), but
notionally she will be treated to be officer of Indian Armed Forces
and commissioned officer of the Indian Armed Forces. Hence, it
is clear that she is a regular commissioned officer of the Indian
Armed Forces and she is authorised to all entitlements and

TA No.211/2010
14
benefits which a regular officer entitled under the Army Act, 1950
and rules framed thereunder and regulations issued from time to
time. Therefore, we have no hesitation to declare that the
petitioner is entitled to be treated as a commissioned officer and
as a part of the regular force, and she is authorised to all
entitlements which are authorised to the regular recruited army
officers of the Indian Army. In this background, order issued on
30th April, 2004 is quashed and respondents are directed to treat
all the commissioned officers of Military Nursing Service as a part
of the regular force of the Indian Armed Forces and extend all
entitlements which are commensurate with the rank as equal to
commissioned officers of Indian Army to her.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
March 30, 2010.
(PRINCIPAL BENCH)
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OA No. 66 of 2010 | 1
NEW DELHI.
ORIGINAL APPLICATION No. 66 OF 2010
Lt. Gen. Avadhesh prakash (retd.) …Petitioner
Versus
Union of India & others …Respondents
For the Petitioner: Ms. Jyoti Singh, Advocate with Sh.

Ankur Chibber, Advocate
For the Respondents: Ms. Indira Jaising, Addl. Solicitor

General with Mr. Satyakam, Mr. Anil
Gautam, Advocates.
C O R A M:
HON‟BLE MR. JUSTICE A.K.MATHUR, CHAIRPERSON
HON‟BLE LT.GEN. S.S. DHILLON, MEMBER (A)
JUDGMENT
1. Petitioner by this Petition has prayed that the
convening order dated 30th September, 2009 of the

OA No. 66 of 2010 | 2
Court of Inquiry held at Kolkata and its proceedings
along with the Findings and Opinion may be quashed
and the letter/order dated 29th January, 2010,
whereby Section 123 has been invoked against the
applicant for disciplinary purposes may be quashed.
2. Petitioner was commissioned in the Infantry on 20th
December, 1970 and he had participated in many
important military events and was accorded many high
commendations during his tenure of his service.
3. There is a land situated in Chumta Tea Estate
belonging to the State of West Bengal. It was leased

OA No. 66 of 2010 | 3
out by the State Government to four companies which
are as follows:
1. JF Low & Company Ltd.
2. Akshera Vanijya Pvt. Ltd.
3. Mata Vaishno Devi Mercantile Pvt. Ltd.
4. Sheetla Vyapaar Ltd.
4. Out of the 2711 acres of land of the Chumta Tea
Estate, approximately 71.55 acres of land, which was
leased to the aforesaid four companies by the State
of West Bengal was not used for the purpose of
growing tea as the said land was rocky and plantation
on the said land was not possible. Therefore, these
four lessee companies requested to State of West

OA No. 66 of 2010 | 4
Bengal to consider for change of land use from tea
garden to other commercial venture viz. development
for tourism purposes. The State of West Bengal
accepted the said proposal, in principle, in 2005 with
certain conditions in favour of lessees and a long term
lease agreement dated 22nd September, 2006 was
executed between the State Government and the
lessee companies. The lease was for a period of 99
years for the purpose of developing a tourism
complex including facilities like resort, hotel and
retreat housing complex.
5. In 2008 Army (GOC 33 Corps) took up a case with the
Government of West Bengal for cancellation of lease

OA No. 66 of 2010 | 5
due to security implications of the commercial
project coming near Sukhna Military Station. On this
objection, the State of West Bengal issued notices to
four lessee companies about proposed cancellation of
the lease. The matter regarding cancellation of lease
was pending with the State Government.
6. On 4th October, 2008 GOC (33 Corps) again took up
the case with the Government of West Bengal for
cancellation of the lease. At that relevant point of
time, the petitioner was the Military Secretary and
he was one of the Principal Staff Officers to Chief of
Army Staff. He alleges that he has nothing to do
with the grant of lease or for issuing „No Objection

OA No. 66 of 2010 | 6
Certificate‟ for development of this area for
commercial purpose.
7. On 16th October, 2008 the petitioner went on an
official visit to Calcutta, on 17th October, 2008 he
proceeded to Gangtok and in the morning of 18th
October, 2008 he was at Hashimara. Thereafter, on
18th afternoon he proceeded to Sukhna for
addressing the officers. Around 4.30 p.m. one of his
friends namely Mr. Dilip Agarwal met him and
expressed a desire to establish an educational
institute in the land in question, therefore, No
Objection Certificate was required from headquarter
(33 Corps).
OA No. 66 of 2010 | 7
8. It is alleged that the petitioner thought it was a
noble cause and it will be for the welfare of the
civilians as well as for the Army in that area.
Therefore, he suggested Mr. Dilip Agarwal to
approach Military Authorities for that purpose and he
thought it fit to visit personally the land, before
requesting Corps Commander. In the night the
petitioner was invited for dinner by Corps Commander
at his residence and during dinner he made a
recommendation to the Corps Commander to consider
the case of granting No Objection Certificate
without compromising security for establishing an

OA No. 66 of 2010 | 8
educational institution by his friend Mr. Dilip
Agarwal.
9. It is alleged that in November, 2008 the Corps
Commander Lt. Gen. PK Rath apprised the applicant on
phone that the request of Mr. Dilip Agarwal could not
be accepted. Petitioner thought that matter is
closed. Thereafter, 33 Corps Commander then took
up the matter in December, 2008 with the State of
West Bengal and insisted that as per their
communication of October, 2008, the lease issued in
favour of the four companies may be cancelled.
10. An official meeting was called by Government of
West Bengal on 6th February, 2009. The meeting was

OA No. 66 of 2010 | 9
attended by AQMG (Works) and the representatives
of lessees and Mr. Dilip Agarwal, in the chamber of
Additional Chief Secretary of the State of West
Bengal. It is alleged that when AQMG (Works) was
specifically asked with regard to the proposal for
construction of educational institute for area, the
officer replied that Army had no objection for
establishment of an educational institution only.
Then the Memorandum of Understanding (hereinafter
referred to as „MoU‟) was formalized and thereafter
executed on 20th March, 2009 between the Station
Commander, Station HQ, Sukna and the Lessee of the
land in question.
OA No. 66 of 2010 | 10
11. During April, 2009 Lt. Gen. Rath while speaking to
Army Commander Lt. Gen. VK Singh, informed him of
his decision on the subject and there was a
difference of opinion between the two. Thereafter,
the Corps Commander instructed his staff to
rescind/negate all the actions taken till then and
revert to original stance.
12. On 27th May, 2009 the Corps headquarter wrote to
Additional Chief Secretary, Government of West
Bengal that the Army had ex-parte cancelled the
MoU with four lessees and requested that the lease
with four companies be cancelled and land be
transferred to the Army authorities.

OA No. 66 of 2010 | 11
13. Thereafter, a Court of Inquiry was convened on 30th
September, 2009, presided over by Lt. Gen. KT
Parnaik as Presiding Officer and Maj. Gen. RP Dastane
and Maj. Gen SC Jain as Members. It is alleged that
the Court of Inquiry was not properly constituted in
terms of Regulation 518 of the Army Regulations as
the two Members of the Court of Inquiry were in the
rank of Major General, while the petitioner and Lt.
Gen. Rath, both were in the rank of Lt. General and
senior to Lt. Gen. Parnaik. Petitioner also submitted
that this was in violation of Rule 180 of the Army
Rules, 1954.
OA No. 66 of 2010 | 12
14. Thereafter, the petitioner received a show cause
notice on 11th January, 2010, in which certain
allegations, which were completely false and baseless,
were leveled against him and he was required to show
cause why administrative action of Censure be not
taken against him. The petitioner sent his reply on
22nd January, 2010 to the aforesaid show cause
notice. However, on the last working day of his Army
career, he was served with a letter dated 29th
January, 2010, on the same day, in which it was
mentioned that he would be attached for disciplinary
proceedings and the show cause notice was cancelled.
This was also challenged by the petitioner that the

OA No. 66 of 2010 | 13
said action was illegal as in terms of the policy of the
Army itself there could not have been a change of
path from administrative action to disciplinary action.
15. Petitioner retired on 31st January, 2010 and
thereafter, filed this petition challenging the letter
invoking Section 123 of the Army Act, 1950.
16. Learned counsel for the petitioner has seriously
objected to the conduct of the Court of Inquiry and
submitted that petitioner was not given sufficient
opportunity to present and effectively cross examine
the witnesses. Therefore, it is a serious violation of
Rule 180 of the Army Rules, 1954. It is contended
that the order of convening Court of Inquiry is also

OA No. 66 of 2010 | 14
violative of Regulation 518 of Regulations for the
Army, 1987, wherein it says that no person, junior in
rank of person facing the Court of Inquiry, shall
constitute the Court of Inquiry. Regulation 518 reads
as under:
“518. Courts of Inquiry and Station Boards – The

convening officer is responsible that a court
of inquiry or station board is composed of
members whose experience and training best
fit them to deal with the matter at issue.
The personnel detailed to constitute the
Court of Inquiry or Station Board should have
no personal interest or involvement, direct or
indirect, in the subject matter of the
investigation. A Court of Inquiry may consist
of officers only, or of one or more officers
together with one or more JCOs, WOs, NCOs
as may be desirable. When the character or
military reputation of an officer is likely to
be material issue, the presiding officer of the
court of inquiry wherever possible, will be
OA No. 66 of 2010 | 15
senior in rank and other members at least

equivalent in rank to that officer.
When investigating damages to service

equipment, the evidence of a technical officer
who is experienced and fully conversant with
the technical details of the equipment should
be recorded. A station board may consist of
any person selected by the convening officer.
The members of a mixed civil and military
board will take precedence in accordance with
any general or special instructions issued by
the Central Government. The stationery and
forms required by a board will be supplied by
the unit which applies for it.”
17. In this connection learned counsel for the petitioner
submitted that the petitioner was in the rank of Lt.
Gen. and likewise, PK Rath was also in the rank of Lt.
Gen., whereas, the Court of Inquiry constituting of Lt.
Gen. KT Parnaik as Presiding Officer and Maj. Gen. RP
Dastane and Maj. Gen. SC Jain. Therefore, Court of

OA No. 66 of 2010 | 16
Inquiry stands vitiated. Petitioner also submitted
that Lt. Gen. Parnaik was junior to the petitioner. It
was further submitted by the petitioner that as per
the Army policy once a show cause notice was issued
to the petitioner for taking administrative action,
then, as per the Army Policy dated 11th May, 1993,
the course should not have been changed and order
for Court Martial should not have been ordered
against the petitioner.
18. Learned counsel for the petitioner has taken us to
the evidence and submitted that petitioner has not
been given fair treatment by the Court of Inquiry and
he was not given sufficient opportunity before the

OA No. 66 of 2010 | 17
Court of Inquiry to defend himself, when his
reputation and his character was assassinated, which
is in serious violation of Rule 180 of the Army Rules,
1954.
19. Before we proceed to examine the argument of the
petitioner, let us see the things in the chronological
order. The Court of Inquiry was convened for Inquiry
into the change of stance for granting No Objection
Certificate to the four lessees for building
educational institution. Whereas, the consistent
request of the authorities was that the State of
West Bengal should be approached to cancel the lease
of the four companies and handover this land for use

OA No. 66 of 2010 | 18
of the Army. But, that stance was changed and „No
Objection Certificate‟ was granted. Therefore, the
Court of Inquiry was convened. The convening order
reads as under:
---------------------------------------------------
“CONVENING ORDER
1. A C of I composed as per para 2 below, shall

assemble at the place, date and time to be fixed by
the presiding Officer to inquire into the
circumstances resulting in the following:-
(a) Undertaking given by Lt. Col Joseph Verghese,

AQMG (Wks) Hq 33 Corps, on 06 feb 09, at the
hearing held by Addl Chief Secy and commissioner
General Land Reforms, Govt. of West Bengal
stating that Army has “no objection” if an
educational institution with residential facility is
set up in the proposed land measuring about 71
acres instead of tourism/ housing or commercial
project, whereas, the said stance was contrary to
earlier projection made by HQ 33 Corps vide their
OA No. 66 of 2010 | 19
letter No 230100/ Land/Gen/Q3 dt 03 Dec 08, to

HQ Eastern Command Stating:-
(I) To Pursue case with State Govt. for

cancellation of lease, and
(II) Land to be acquired/transferred to Army
from the State Govt.
(b) MoU was signed and notarised on 20 Mar 09

between the Stn Cdr, Sukha and Director, M/s J.
F. Low & Company Ltd, M/s Sheetala Vyapar Pvt
Ltd, M/s. Mata Vaishonodevi Mercantile Pvt. Ltd.
And M/s. Akshara Vanijya Pvt. Ltd. in furtherance
of the undertaking given on 06 Feb 09 as
mentioned at Ser (a) supra without recourse to
making reference to HQ Eastern Command.
(c) The requirement of cancellation of MoU dated 20

Mar 2009, in case the copies thereof were not
supplied/provided to the second party to the MoU
and/or Govt of West Bengal.
(d) Circumstances leading to and the

necessity/justification for change in the stand
taken by HQ 33 Corps vide their letter No.
230100/Land/Gen/Q3 dt 03 Dec 08 and the MoU
dt 20 Mar 09.
2. Composition
OA No. 66 of 2010 | 20
(a) Presiding Officer - IC-25901X, Lt Gen KT

Parnaik, YSM, GOC, 4
Corps
(b) Members (i) - IC-30392N, Maj Gen

RP Dastane, VSM,
GOC, Bengal Area
(ii) – IC-34648H, Maj Gen SC

Jain, MG EME, HQ
Eastern Cmd.
3. The C of I shall pinpoint responsibility and apportion

blame based on its finding.
4. Provision of Army Rule 180 shall be complied with,
wherever necessary and certificate of compliance
rendered at the relevant places by the Presiding
Officer and the witnesses concerned.
5. The C of I proceedings duly complete in all
respects, in quadruplicate, shall be submitted to
HQ Eastern Command by 30 Oct 09.
Case File No.:305971/CTE/Q3(Land)(PC) (SS Dasaka)

Maj Gen
HQ Eastern Comd MGOL
Fort William for GOC-in-C
Kolkata-21
30 Sep 09
Distr
OA No. 66 of 2010 | 21
HQ4 Corps Q (Wks).

HQ 33 Corps Q (Wks).
HQ Bengal Area (Q)
Stn HQ, Sukna
Internal
EME Branch
AG‟s Branch
JAG Branch
Office Copy”
-----------------------------------------------------------------
20. PW-1 Lt. Col. Jiji Varghese was examined. He was
Assistant Quartermaster General (Works) Headquarters
33 Corps. He stated that in February, 2008 through
newspaper report they came to know that a commercial
complex was being developed on approximately 80 acres
of barren Chumta Tea Estate land located adjacent to
Headquarters 33 corps. Due to security implication of
such a project in the midst of Sukna Military Station, a

OA No. 66 of 2010 | 22
case was taken up with the government of West Bengal
for cancellation of lease to the four companies who had
taken on lease this piece of land from the Government of
West Bengal. Accordingly, a letter was written by the
erstwhile General Officer Commanding 33 Corps on 29th
February, 2008, 15th March, 2008 and 18th May, 2008, to
the Chief Secretary, Government of West Bengal. Then,
on 4th October, 2008 the present General Officer
Commanding 33 Corps also wrote to the Chief Secretary,
Government of West Bengal for the further progress in
the matter and Col. NK Dabas met District Magistrate,
Darjeeling to pursue the case. Then, on 29th December,
2008 a proposal was received from a trust named

OA No. 66 of 2010 | 23
Geetanjali Education Trust for establishment of
educational institution in barren portion of Chumta Tea
Estate land and on this a meeting took place in the office
of Brigadier Administration (now Brigadier
Quartermaster General) Headquarters 33 Corps on 1st
January, 2009. A letter was also received on 1st
February, 2009 from four lessee companies that they
intend to establish an educational institution and then a
meeting took place in the chamber of Dr. PK Agarwal,
IAS, Additional Chief Secretary of Government of West
Bengal on 6th February, 2009, wherein, a request was
made to send a representative from the Army. In the
meeting of 3rd February, 2009 he was deputed to give an

OA No. 66 of 2010 | 24
conditional No Objection Certificate and Memorandum of
Understanding may be finalised. Accordingly, he
attended the meeting and conveyed no objection to the
proposal for establishment of an educational institution
only. These directions were given to him by erstwhile
Brigadier Quarter Master General 33 Corps, based on
the notings and he produced the notings. Thereafter,
Memorandum of Understanding was prepared and
incorporated in the lease deed.
In an answer to a question PW-1 categorically stated that
when Brigadier PC Sen, erstwhile Brigadier
Quartermaster General called in the presence of Col. NK

OA No. 66 of 2010 | 25
Dabas, Colonel Quartermaster General (works) and gave
directions for change of the stance.
PW-1 has deposed that no Memorandum of Understanding
was sent to Additional Commissioner, Land Reforms,
Kolkata and he was told by the erstwhile Brigadier
Quartermaster General, Brigadier PC Sen in the morning
of 04/05 April, 2009 to dispatch the Memorandum of
Understanding by hand.
21. On 15th October, 2009, after the statement of Jiji
Verghese (PW-1) the Army Rule 180 was invoked
inrespect of Lt. Gen. PK Rath (PW-2), GOC 33 Corps
and the statement of Lt. Col. Jiji Varghese (PW-1) was
read out to Lt. Gen. PK Rath (PW-2) and was requested to

OA No. 66 of 2010 | 26
cross examine PW-1. Thereafter, Lt. Gen. PK Rath cross
examined Lt. Col. Jiji Varghese (PW-1).
Additional questions were also asked to Lt. Gen. PK Rath
(PW-2) and ultimately Lt. Gen. PK Rath (PW-2) signed his
detailed statement, running into more than 15 pages. In
an answer to one of the questions Lt. Gen. PK Rath (PW-
2) stated that he changed the decision, as against an
offer of building a tourist resort/commercial complex,
the changed offer was to build an educational institution
of the reputation of Mayo College. PW-2 also submitted
that there was no ammunition dump in the vicinity and
even a state highway passes right through that area.

OA No. 66 of 2010 | 27
PW-2 has deposed that on 29th December, 2008 an
application was received from Gitanjali Education Trust,
which put forward a proposal for establishment of a good
educational institute with a Mayo College franchise.
Therefore, he thought that the purpose is noble and he
decided to examine the same. He also thought that
ultimate decision lay with the Government of West
Bengal and he decided to give a conditional no objection
to an educational institute being proposed.
Lt. Gen. PK Rath (PW-2) was asked certain question by
the Court. PW-2 admitted that Mr. Dilip Agarwal met
him on 31st January, 2009 for No Objection Certificate.
PW-2 also deposed that he doesn‟t remember to have

OA No. 66 of 2010 | 28
met Mr. S. Bajoria. PW-2 deposed that in long years of
service he has taken decisions judiciously. Granting of a
conditional no objection was not a carte blanche to the
construction of an educational institution, but, with
certain conditions to ensure security.
22. PW-3 Brigadier AA Ramchandani (erstwhile Brigadier
Administration of Headquarters 33 Corps). He has
deposed about the past decision that the previous
General Officer Commanding 33 Corps Lt. Gen. Deepak
Raj, who raised the concern about the security point and,
therefore, made request for cancellation of the lease
deed. PW-3 was cross examined by Lt. Gen. PK Rath (PW-
2).
OA No. 66 of 2010 | 29
23. PW-4 Lt. Gen. R Halgali (erstwhile Chief of Staff of
Headquarters 33 Corps) has deposed that the earlier
communication was sent by Lt. Gen. Deepak Raj to the
Chief Secretary for cancellation of the lease in favour of
the private lessees and same line was pursued by Lt. Gen.
PK Rath, but, PW-4 proceeded on leave from 3rd
December, 2008 to 15th January, 2009 and during this
interim period the decision for issue of conditional No
Objection Certificate was taken and on his return he
discussed the matter during the morning conference and
it was felt that no good school exists in the vicinity of
Sukhna due to which large number of houses are
unoccupied by officers and staff. On 22nd January,

OA No. 66 of 2010 | 30
2009, a letter was received from Special Secretary to
West Bengal addressed to General Officer Commanding
asking for deputing a representative for the hearing on
the cancellation of the lease. Then, General Officer
Commanding directed Brigadier Administration to detail a
representative and Lt. Col. Jiji Varghese was detailed and
Memorandum of Understanding was finalized. General
Officer Commanding directed that the draft
Memorandum of Understanding be prepared in
consultation with Deputy Judge Advocate General and
the draft was amended as per directions of the General
Officer Commanding.
OA No. 66 of 2010 | 31
PW-4 also deposed that the Memorandum of
Understanding was prepared by the Brigadier
Administration, in consultation with the Deputy Judge
Advocate General. PW-4 also deposed that a lot of
water had flown during his absence when he was on leave.
He was cross examined by Lt. Gen. PK Rath.
24. PW-5 Major General PC Sen (erstwhile Brigadier
Quartermaster General of Headquarters 33 Corps). He
was at that time Brigadier Administration. PW-5
deposed that the issue of educational institution was
referred to him by General Officer Commanding after
his joining the duties. The Memorandum of
Understanding was to be prepared to address security

OA No. 66 of 2010 | 32
concern of the station. The process of making of
Memorandum of Understanding was completed on 20th
March, 2009 and same was perused and approved on 1st
April, 2009 by General Officer Commanding and he had a
discussion with Chief of Staff and he also spoke to
General Officer Commanding to apprise Eastern Command
before forwarding it to Government of West Bengal.
PW-4 further deposed that as advised by the Chief of
Staff the General Officer Commanding informed
Headquarters Eastern Command. PW-4 also deposed that
he is not sure whether Mr. Dilip Agarwal met General
Officer Commanding on 29th December, 2008. He met
him only once more on 31st January, 2009 and Mr. S.

OA No. 66 of 2010 | 33
Bajoria met General Officer Commanding on 31st January,
2009. PW-4 also deposed that he was asked to make a
progress in the matter expeditiously. PW-4 further
deposed that Colonel Quartermaster General (Works),
Asistant Quartermaster General (Works) and he also put
in his bit. Deputy Judge Advocate General was also
consulted. Colonel NK Dabas, Colonel Quartermaster
General (Works) got few Memorandum of Understanding
samples to prepare the draft Memorandum of
Understanding. PW-4 also deposed that change of stance
was decided at the level of General Officer Commanding.
PW-4 thought that General Officer Commanding must
have informed higher authorities at the appropriate level.

OA No. 66 of 2010 | 34
PW-4 recommended to the Chief of Staff to advise the
General Officer Commanding to inform the Headquarters
Eastern Command. PW-4 deposed that Chief of the
Staff gave a direction for preparation of Memorandum
of Understanding.
Lt. Gen. PK Rath cross examined the witness (PW-4) at
length.
25. PW-6 Brigadier Sunil Chadha. His duty was to review
station security and internal functioning of the station
headquarters. He recommended the proposal so that
they could bid for seats for wards of personnel serving
at Sukhna. He doesn‟t have much role to play in the
matter, except to push the files.

OA No. 66 of 2010 | 35
Lt. Gen. PK Rath and Maj. Gen. PC Sen, both were present
and both cross-examined this witness.
26. PW-7 Colonel NK Dabas. He was performing duties as
Colonel Quartermaster General (Works). He has deposed
that all the events which has taken earlier, as deposed by
other witnesses and he has deposed that he was on
temporary duty and on leave from 13th December, 2008
to 15th January, 2009 and during this time he was
informed by Lt. Col. Jiji Varghese on telephone about
giving the No Objection Certificate and meeting with Mr.
Dilip Agarwal. PW-7 told him to avoid it till he come back
from leave. It is alleged that during this time the
decision was taken to change the stance for giving No

OA No. 66 of 2010 | 36
Objection Certificate. By and large, he has also repeated
the same story, trying to pass the responsibility from one
person to another. This witness was also examined by Lt.
Gen. PK Rath and Maj. Gen. PC Sen.
27. PW-8 Colonel Javed Iqbal. He was a Deputy Judge
Advocate General. He has come into the picture
regarding preparation of draft agreement. He was also
cross-examined by Lt. Gen. PK Rath and Maj. Gen. PC Sen.
28. PW-10 Naib Subedar KS Vishwakarma. This witness
was Liaison Officer to the Staff Officer (Colonel Rajeev
Ghai) of the Military Secretary Lt. Gen. Avadhesh
Prakash when Col. Rajeev Ghai visited HQ 33 Corps in
early October 2008 (specific date not known). The

OA No. 66 of 2010 | 37
witness escorted Col. Rajeev Ghai during his stay of two
days at HQ 33 Corps, which included a visit to Chumta
Tea Estate.
At this juncture, i.e. on 7th November, 2009, Lt. Gen. PK
Rath (PW-2), after examining the witness PW-10), made a
request to give further additional statement to the Court
and the request of Lt. Gen. PK Rath was acceded to and
on 7th November, 2009 Lt. Gen. PK Rath brought into the
picture facts about the involvement of Lt. Gen. Avadhesh
Prakash, Military Secretary.
29. Lt. Gen. PK Rath (PW-2) has deposed that alternative
proposal for setting up of an educational institution was
received in his office. During the visit of Lt. Gen.

OA No. 66 of 2010 | 38
Avadhesh Prakash he asked him to look into the matter
and mentioned the name of his friend Mr. Dilip Agarwal
to him. Mr. Dilip Agarwal met him twice in his office in
the presence of others. The first time on 31st January,
2009 in the presence of Brigadier Administration and
later on, on the first/second of February, 2009. He has
also deposed that Lt. Gen. Avadhesh Prakash visited
officially in October, 2008. Lt. Gen. PK Rath also
deposed that Lt. Gen. Avadhesh Prakash told him that his
friend is likely to make an alternate educational institute
proposal and have a look at it. He also deposed that as
far as his personal interest is concerned he had no
knowledge. In a question that whether his decision was

OA No. 66 of 2010 | 39
influenced by the recommendation of Lt. Gen. Avadhesh
Prakash, he answered that his decision was solely on the
merit of the case. Lt. Gen. PK Rath further mentioned
that since the name of Military Secretary was not
required to be mentioned as he has taken the decision on
the merit of the matter. He further deposed that he is
a very straight forward General and education & welfare
of his men are very close to his heart and changed his
stance for the benefits of troops. He also deposed that
because of newspaper publicity of land grabbing mafias,
he was completely shaken up. He also deposed that he
had no inkling of this kind of design, otherwise, he would
have never acceded to this.

OA No. 66 of 2010 | 40
Therefore, from this stage, i.e. from 7th November, 2009
the problem of the petitioner starts, because his name
had figured for the first time in the additional statement
given by Lt. Gen. PK Rath.
30. Additional statement was also given by Lt. Gen. Halgali
(PW-4). He has deposed that Military Secretary
(Petitioner) spoke to him on two occasions. First, around
second week of October, 2008 and he telephoned to him
and enquired about the Chumta Tea Estate. Then, he
told him that for security reasons it has been rejected.
He told him that a school is going to be established there
and it will be a good and beneficial institution for persons
below officer rank and children. Then he told me that

OA No. 66 of 2010 | 41
Mr. Dilip Agarwal will come and explain. I informed him
that General Officer Commandig is not here he can talk
to him later. Next morning he reported this conversation
to General Officer Commanding. Next day Mr. Dilip
Agarwal also came and repeated the same aspect of an
educational institution being established. I informed the
Corps Commander of this meeting with Mr. Dilip Agarwal.
Lt. Gen. Avadhesh Prakash again called him in March,
2009 and asked about the Chumta Tea Estate. He told
him that he was not dealing with the subject, he should
speak to General Officer Commanding. He again
emphasized the beneficial effect of establishment of an
educational institution.
OA No. 66 of 2010 | 42
Lt. Gen. Halgali was cross-examined by Lt. Gen. PK Rath
and Maj. Gen. PC Sen.
31. PW-11 Col. BL Das was also examined. He was posted
to 6 Engineer Regiment, West Bengal. Nothing of any
substance was given by him and similarly by PW-12
Colonel Gopal Singh also.
32. PW-14 Naib Subedar Surjit Singh was examined. He was
a liaison officer and he conducted the visit of Military
Secretary. He accompanied Lt. Gen. Avadhesh Prakash to
Chumta Tea Estate also.
33. PW-15 Lt. Col. PC Pathak was examined. He was
posted at Headquarters 33 Corps and he was Commanding
Officer for Bengal (Girls) Battalion National Cadet Corps

OA No. 66 of 2010 | 43
at Siliguri. He deposed that he met Col. Rajiv Ghai, Staff
Officer to Military Secretary, who accompanied the
Military Secretary on his visit to Sukhna.
34. PW-17 Lt. Gen. Deepak Raj. He deposed about earlier
events that he did not approve of granting of No
Objection Certificate in the matter.
35. Again, Lt. Gen. PK Rath, made one statement, in addition
to the statement given by him on 7th November, 2009
expressing his anguish.
36. Some additional questions were asked to Maj. Gen. PC
Sen and in response to that he answered that in
February, 2009 he received an enquiry about this issue

OA No. 66 of 2010 | 44
from a Staff Officer from the office of the Military
Secretary.
37. Court also made certain questions to Col. NK Dabas and in
response to that he has deposed that Military Secretary,
during his visit to headquarters, in October, 2008, made
enquiries about the progress of the Chumta Tea Estate.
He avoided to answer the same.
38. After the end of this evidence on 12th November, 2009
Rule 180 of the Army Rules, 1954 was invoked inrespect
of Col. NK Dabas. He was given opportunity to present
himself and to cross-examine any witness. Col. NK Dabas
declined to cross examine any witness.

OA No. 66 of 2010 | 45
39. Certain additional questions were also asked to Lt. Gen.
Halgali. He has deposed that Military Secretary or
General Officer Commanding called Brigadier
Administration to amend the document, because Mr. Dilip
Agarwal seems to have spoken to Military Secretary.
Finally General Officer Commanding called him and asked
him to make the amendments the way Mr. Dilip Agarwal
wanted.
40. PW-18 Col. Rajiv Ghai, Staff Officer to Military
Secretary, was also examined and he admitted to have
met Mr. Dilip Agarwal and deposed about the event. He
admitted that Mr. Dilip Agarwal met him in Chumta Tea

OA No. 66 of 2010 | 46
Estate. PW-18 was also cross-examined by other
witnesses.
41. PW-19 Lt. Gen. Avadesh Prakash was examined. Lt.
Gen. Avadesh Prakash, petitioner, has denied that he has
any role whatsoever in grant of No Objection Certificate
to concerned parties. He admitted that Mr. Dilip
Agarwal is his friend and he has asked Lt. Gen. PK Rath to
look into the request of Mr. Dilip Agarwal, without
compromising on the security. When he received a call
back from Lt. Gen. PK Rath that for security reasons it is
not possible to accede to the request insofar as he was
concerned the matter stood closed. He admitted that he
had visited this land along with Mr. Dilip Agarwal and he
OA No. 66 of 2010 | 47
also deposed that before asking for No Objection
Certificate, he thought he should see the location,
therefore, he visited the site. At this stage he was
cross-examined by Col. NK Dabas and Maj. Gen. PC Sen.
42. All the witnesses cross-examined Lt. Gen. Avadesh
Prakash, including Lt. Gen. PK Rath, at length. On 18 th
November, 2009, for the first time, on the basis of the
detailed cross-examination of Lt. Gen. Avadesh Prakash,
Rule 180 of the Army Rules, 1954 was invoked and he was
directed to be present throughout the Court of Inquiry
and cross-examine any witness, make any statement,
produce any evidence he may wish to make or give,
produce any defence witness of his character and

OA No. 66 of 2010 | 48
military reputation. Lt. Gen. Avadesh Prakash did not
sign the minutes and objected to invocation of Rule 180
of the Army Rules, 1954. According to his understanding
of Rule 180 of the Army Rules, 1954, when all the
statements have been recorded in his absence and court
did not find it appropriate to invoke Rule 180 against him.
Now, based on his statement and questions by certain
witnesses, his character and military reputation is
impeached it is not proper to invoke Rule 180 at belated
stage. Providing an opportunity to cross-examine the
witness in such manner will be a formality as he does not
know what these witnesses have deposed earlier. He
argued that when certain witnesses deposed against him

OA No. 66 of 2010 | 49
and court wanted to invoke Rule 180 he should have been
called on 7th November, 2009 when his name appeared
for the first time and, therefore, he objected that he
has not been given a fair chance to hear the statement of
witnesses and question them at that stage. He also
alleged that when all other witnesses, whose character
and military reputation is questioned, they were present
and they are given chance to cross-examine and he has
been now asked to cross-examine them at the conclusion
of Court of Inquiry. Therefore, he said that invocation
of Rule 180 is not warranted. This objection was
recorded and signed on 18th November, 2009.

OA No. 66 of 2010 | 50
Then, again on 19th November, 2009, despite objection
recorded by Lt. Gen. Avadhesh Prakash, he was directed
to be present and an opportunity was given to cross-
examine each and every witness and read the proceedings
of the Court. This was not signed by Lt. Gen. Avadhesh
Prakash and he reiterated his objection.
Then, in his additional statement, Lt. Gen. Avadhesh
Prakash recorded that he was asked to sign a certificate,
which says that he has been given an opportunity to cross
examine witnesses here or to peruse the statements,
which were already recorded in his absence. He also
submitted that, after statement of all the witnesses
have been recorded and the Court of Inquiry has all of a

OA No. 66 of 2010 | 51
sudden become conscious of applying Rule 180 at a
belated stage and asked him to sign the proceedings. He
further submitted that when a witness makes a
statement affecting character and military reputation of
other witness, the concerned person has to be present
throughout the Court of Inquiry and all the statements
are to be recorded in his presence and he pointed out
that this is the legal position. Therefore, he objected
that this is not the proper implementation of Rule 180.
This statement was signed by him on 19th November,
2009.
43. Certain more questions were asked to Lt. Gen. PK Rath in
the Court of Inquiry.

OA No. 66 of 2010 | 52
44. On 20th November, 2009, Colonel Hunny Bakshi was
examined. Then, again on 20th November, 2009, Lt. Gen.
Avadesh Prakash was given an opportunity to cross-
examine this witness, but, he declined to do so.
45. Some more witnesses were examined on 26th November,
2009 and all other witnesses were present except Lt.
Gen. Avadesh Prakash.
46. PW-21 Mr. S. Bajoria of JF Low & Company was also
examined but the petitioner did not cross-examine him
and was not present.
47. Then, again on 27th November, 2009 petitioner was
present & protested and said his earlier objection stands.

OA No. 66 of 2010 | 53
48. At close of all the witnesses a report was submitted by
the Court of Inquiry of its findings and on that basis a
show cause notice dated 11th January, 2010 was issued to
the petitioner giving an opportunity to show cause as to
why suitable administrative action should not be taken
against him. Petitioner filed his reply and protested
that he has no role to play in the matter. After receiving
the reply to show cause notice, the respondent, Chief of
Army Staff, invoked Section 123 of the Army Act, 1950
and directed to report to Headquarter Eastern Command
for disciplinary action. In this background, this petition
was filed challenging the order of invocation of Rule 180,

OA No. 66 of 2010 | 54
notice of convening inquiry and order under Section 123
of the Army Act, 1950.
49. It may be relevant to mention here that Rule 180 of
Army Rules, 1954 provides an opportunity to the
incumbent whenever the military reputation of the
incumbent is questioned. The Rule 180 reads as under:
“180. Procedure when character of a person

subject to the Act is involved – Save in
the case of a prisoner of war who is still
absent whenever any inquiry affects the
character or military reputation of a person
subject to the Act, full opportunity must be
afforded to such person of being present
throughout the inquiry and of making any
statement, and of giving any evidence he
may wish to make or give, and of cross-
examining any witness whose evidence in his
opinion, affects his character or military
reputation and producing any witnesses in
defence of his character or military
OA No. 66 of 2010 | 55
reputation. The presiding officer of the

court shall take such steps as may be
necessary to ensure that any such person so
affected and not previously notified
receives notice of and fully undetstands his
rights, under this rule.”
The Rule 180 contemplates that whenever the character
or military reputation of the person is involved, he must
be given full opportunity of being present throughout the
inquiry and making of any statement and giving any
evidence he may wish to make or give and of cross-
examining any witness whose evidence in his opinion,
affects his character or military reputation and
producing any witnesses in defence of his character or
military reputation.
OA No. 66 of 2010 | 56
50. Therefore, the key word in this rule is that the person
should be given full opportunity of being present
throughout the inquiry and make any statement and to
cross-examine the witnesses.
51. Though, this Court of Inquiry is a preliminary inquiry and
final inquiry which has yet to take place, but,
nonetheless, the law has emphasized that the incumbent
should be given full opportunity and should be present
throughout. However, Court of Inquiry is not necessary
for Court Martial. In this connection reference may be
made to a decision of the Apex court held in the case of
„Lt. Col. Prithi Pal Singh Bedi etc. etc. v. Union of

OA No. 66 of 2010 | 57
India & Ors. [1982 (3) SCC 140] their Lordships have
observed as under:
“When an offence is committed and a trial by

a general court martial is to be held, there is
no provision which requires that a court of
enquiry should be set up before the trial is
directed. To ensure that such a person whose
character or military reputation is likely to be
affected by the proceedings of the court of
enquiry should be afforded full opportunity so
that nothing is done at his back and without
opportunity of participation, Rule 180 merely
makes an enabling provision to ensure such
participation. But it cannot be used to say
that whenever in any other enquiry or an
enquiry before a commanding officer under
Rule 22 or a convening officer under Rule 37
or the trial by a court martial, character or
military reputation of the officer concerned
is likely to be affected a prior enquiry by the
court of enquiry is a sine qua non.”
OA No. 66 of 2010 | 58
52. Therefore, it is true that the Court of Inquiry is a
preliminary inquiry and it is always not necessary for a
court martial under Rules 22 or 37. But, if Court of
Inquiry is initiated, then, it should be ensured that
principles of natural justice are followed.
53. The contour of principles of natural justice has been
summed-up in the Maneka Gandhi‟s case. In that case
their Lordships very clearly summed-up the contours of
principles of natural justice which reads as under:
“Since the life of the law is not logic but

experience and every legal proposition must in
the ultimate analysis be tested on the touch-
stone of pragmatic realism, audi alteram
partem rule would, by the experiential test,
be excluded, if importing the right to be
heard has the effect of paralyzing the
administrative process or the need for
OA No. 66 of 2010 | 59
promptitude or the urgency of the situation

so demands. But the rule is sufficiently
flexible to permit modifications and
variations to suit the exigencies of myriad
kinds of situations which may arise. It would
not, therefore, be right to conclude that the
rule is excluded merely because the power to
impound a passport might be frustrated if
prior notice and hearing were given to the
person concerned. The passport authority
may impound the passport without giving any
prior opportunity to the person concerned but
as soon as the order impounding the passport
is made, an opportunity of hearing, remedial in
aim, should be given to him so that he may
present his case and controvert that of the
authority and point out why his passport
should not be impounded and the order
impounding should be recalled. A fair
opportunity of being heard following
immediately upon the order impounding the
passport would satisfy the mandate of natural
justice and a provision requiring giving of such
an opportunity should be read by implication
into the Act. And if so read, the procedure
prescribed by the Act would be right, fair
and just and would not suffer from the vice
of arbitrariness or unreasonableness.
OA No. 66 of 2010 | 60
Therefore, the procedure established by the

Act for impounding the passport is in
conformity with the requirements of Article
21 and does not fall foul of that Article.
54. The contours of principles of natural justice cannot be
put in a straight jacket it varies from case to case.
Hon‟ble Supreme Court in various decisions has laid down
that concept of fair hearing is an “elastic one and is not
susceptible of easy and precise definition” [AIR 1960
SC 468].
In other decisions (2000 [5] SCC 65, 1996 [11] SCC 404,
1998 [6] SCC 538) Hon‟ble Supreme Court also observed
that components of fair hearing are not fixed but are

OA No. 66 of 2010 | 61
flexible & variable and their scope and applicability
differ from case to case and situation to situation.
55. Therefore, the principles of natural justice depends upon
variable factors and it also varies from situation to
situation. But, the concept of the fair hearing is
ingrained in our system, be it administration or in our
judicial system. The attempt should be to promote
justice and fair play in all adjudicatory functions.
56. Not only in India, but, in England also where in the earlier
case of Ridge v. Baldwin [1964 AC 40] their Lordships
observed that „essential requirements of natural justice
at least include that before someone is condemned he is
to have an opportunity of defending himself‟.

OA No. 66 of 2010 | 62
57. Similarly, in the case of Board of Education v. Rice
[1911 AC 179, 182] their Lordships observed that
„they(the Board of Education) must act in good faith and
fairly listen to both sides, for that is a duty lying upon
every one who decides anything, but I do not think they
are bound to treat such a question as though it were a
trial … … … They can obtain information in any way they
think best, always giving a fair opportunity to those who
are parties in the controversy for correcting or
contradicting any relevant statement prejudicial to their
views.‟
58. In the case of „Major G.S. Sodhi v Union of India‟
[1991 (2) SCC 382] their Lordships held that:

OA No. 66 of 2010 | 63
“… … …the Court of Inquiry and participation

in the Court of Inquiry is at a stage prior to
the trial by court-martial. It is the order of
the court-martial which results in deprivation
of liberty and not any order directing that a
charge be heard or that a summary of
evidence be recorded or that a court-martial
be convened. Principles of natural justice are
not attracted to such a preliminary inquiry.
Army Rue 180, however, which is set out
earlier gives adequate protection to the
person affected even at the stage of the
Court of Inquiry. … … …” .
59. Delhi High Court had also an occasion to examine the
similar provision in the case of „Lt. Gen. Surendra
Kumar Sahni v. Chief of Army Staff and Ors.‟
[2008 (3) SLR 39] and also took the view that holding of
Court of Inquiry is not necessary. However, their

OA No. 66 of 2010 | 64
Lordships observed that requirement under Rule 180
would be mandatory.
60. Similar matter came before this Tribunal. This Tribunal
also had an occasion to examine this rule in the case of
„Lt.Gen. Surender Kumar Sahni v. Union of India &
Ors [T.A. No. 34 of 2009] and took the view that the
holding of Rule 180 clearly stipulates that throughout the
Court of Inquiry full opportunity should be given to
incumbent including the right to cross-examine or
examine any witness.
61. So far as Rule 180 is concerned there is no two opinion.
It is a mandatory provision and it has to be complied with
once the authority has resorted to start the Court of

OA No. 66 of 2010 | 65
Inquiry. Therefore, in this legal background we have to
examine, whether in the present case, the norms of Court
of Inquiry were followed or not. It is a fact that initially
the Court of Inquiry was not ordered against the
petitioner. It is during the course of Court of Inquiry it
came to the light that the change of earlier stance of
the authorities for permitting the construction was on
account of certain extraneous forces. Therefore, the
Court of Inquiry was convened to find out that what were
the factors for which the earlier stance of acquiring the
land in question were changed and No Objection
Certificate was granted for construction of an
educational institution.
OA No. 66 of 2010 | 66
62. In this connection the statements of Lt. Col. Jiji
Varghese (PW-1), Lt. Gen. PK Rath (PW-2) and some more
witnesses were examined. It appears that certain
realization dawn upon Lt. Gen. PK Rath that establishment
of education institute will be in the interest of region and
Army. But, after sometime his conscience pricked him
and admitted in his additional statement that he was
approached by Lt. Gen. Avadesh Prakash for granting No
Objection Certificate for construction as Mr. Dilip
Agarwal was said to be his close friend (7th November,
2009). But, at that time also no notice under rule 180
was given. It is only on 17th November, 2009 it struck to
the presiding officer of Court of Inquiry that there is

OA No. 66 of 2010 | 67
something which needs to be enquired from Lt. Gen.
Avadesh Prakash and he was summoned as a witness (PW-
19).
63. On 18th November, 2009 Rule 180 was invoked against Lt.
Gen. Avadesh Prakash and he was permitted to cross-
examine all witnesses who were present. Then, he was
asked to sign, to which he protested that this is not the
stage to invoke Rule 180 as most of the witnesses have
been examined in his absence and, therefore, he
submitted that invocation of Rule 180, at this juncture, is
not at all warranted as his reputation is at stake and all
the statements have been recorded in his absence.

OA No. 66 of 2010 | 68
64. Thereafter, some more witnesses were examined to
which he took the similar stand, that this is not fair
conduct of Court of Inquiry. He must be given an
opportunity, which is warranted under the law.
65. Though, petitioner was given an opportunity on 19th, 20th
November, 2009 and then thereafter also, but, he
protested that this is not a fair opportunity.
66. What is a fair opportunity and what is not fair
opportunity that depends upon the facts of the each
case. In the present case the manner in which this Court
of Inquiry had been held looks little strange that some
witnesses appeared before Court of Inquiry and gave
their statements. Then, again witnesses came and depose

OA No. 66 of 2010 | 69
something more which was not deposed by them in main
statement. This kind of rumbling carried on, witnesses
were coming and going. Lt. Gen. PK Rath changed his
statement thrice, likewise, Lt. Gen. R Halgali twice, Maj.
Gen. PC Sen twice, and Col. NK Dabas twice. They all
cross-examined Lt. Gen. Avadesh Prakash when he came
in witness box. This manner of conducting Court of
Inquiry appears to us to be very strange. We can
understand that statements of all the witnesses
recorded in order, but, we fail to understand in manner
the Court of Inquiry has been conducted. Be that as it
may, this is a preliminary inquiry and we can ignore the
manner of conducting of Court of Inquiry, because the

OA No. 66 of 2010 | 70
whole attempt is to find out the truth of the matter,
but, when it concerns the military reputation of another
officer, then, in that case that officer should get proper
opportunity.
67. Similarly in the Code of Criminal Procedure, 1973,
Section 309 provides that during the trial it appears to
the Court from the evidence that any accused has
committed an offence and he has not been sent to trial,
the court may proceed to take cognizance and try the
accused. But, accused in that case is given fair
opportunity to call witnesses & cross-examine or lead
evidence. In the present case, the cognizance against Lt.
Gen. Avadesh Prakash was taken at the end of the trial,

OA No. 66 of 2010 | 71
therefore, he protested that he should have been given a
proper opportunity. He was immediately called upon to
cross-examine the witnesses present there and go
through the earlier proceedings. This was not a fair trial.
The Rule 180 clearly contemplates that the incumbent
should get fair opportunity and fair opportunity means
that in normal course all the witnesses should have been
examined in his presence so that the person, whose
reputation is at stake, should get an opportunity to cross-
examine the witnesses. This is the normal rule. But, in
the present case, the cognizance against Lt. Gen.
Avadesh Prakash was taken on 18th November, 2009. By
this time almost 18 witnesses were already examined and

OA No. 66 of 2010 | 72
the manner of examination of witnesses was in haphazard
way. He did not know what has been deposed against him.
He was immediately asked to go through the proceedings
and to cross-examine the witnesses. This was not a
substantial compliance of the principles of natural justice
and it is a serious violation of Rule 180 of the Army Rules,
1954. The proper course was that the inquiry should
have been stayed back and copies of the depositions of
witnesses should have been given to him, he should have
been permitted to cross-examine those witnesses and
given opportunity to lead evidence if he so wishes.
68. The normal rule is that the witness should depose in
presence of the person whose reputation is under stake.

OA No. 66 of 2010 | 73
But, in the present case, since it came to the light at the
end of the Court of Inquiry that there is something to be
inquired from Lt. Gen. Avadesh Prakash, he was
summoned as a witness and submitted to cross-examine
by all the witnesses, who were facing inquiry, they have
already deposed prior to him before the Court of Inquiry.
But, at the end of his examination on 18th November,
2009, he was asked to cross-examine the witnesses. This
was nothing but mockery of principles of natural justice.
69. Normally, during the trial in a criminal case also the
witness comes to the Court to depose in the trial, the
accused is given statement recorded by the police under
Section 161 of the Code of Criminal Procedure, 1973, well

OA No. 66 of 2010 | 74
in advance, so that they know that what is prosecution
case.
70. Since it is a Court of Inquiry and it is Preliminary Inquiry,
a fact finding inquiry, but, still norms of principles of
natural justice requires to be followed in the
proceedings. Since the Court of Inquiry has commenced,
as many as 18 witnesses examined and the Court of
Inquiry found that there is something to be explained by
Lt. Gen. Avadesh Prakash, then he appeared in the
witness box and cross-examined by Lt. Gen. PK Rath, Maj.
Gen PC Sen and other witnesses who have already
deposed. But, he did not get an opportunity to cross-

OA No. 66 of 2010 | 75
examine these witnesses as he did not know what they
have deposed against him.
71. Therefore, it was necessary that before the Court of
Inquiry took cognizance against Lt. Gen. Avadesh Prakash,
they could have deferred the inquiry and should have
supplied all the depositions made by all other witnesses
and then he should have been given an opportunity to
cross-examine the witnesses.
72. But, when 18 witnesses have been deposed, he was the
19th witness. At the end of his statement cognizance is
taken against him and he was asked to cross-examine
other witnesses. This, in our opinion, cannot be said to be
fair and this is breach of principles of natural justice.

OA No. 66 of 2010 | 76
73. In order to do justice with parties and looking to security
angle, we asked learned counsel for the petitioner to give
names of witnesses whom the petitioner wants to cross-
examine. She gave the names of seven witnesses namely
Lt. Col. Jiji Varghese (PW-1), Lt. Gen. PK Rath (PW-2),
Lt. Gen. R Halgali (PW-4), Maj. Gen PC Sen (PW-5), Col.
NK Dabas (PW-7), Nb. Sub. Surjit Singh (PW-14) and
Mr. S. Bajoria (PW-21).
74. Since the Court of Inquiry has already proceeded thus
far and many other persons are involved, in the facts and
circumstances of this case, instead of directing all the
witnesses to depose over again in the Court of Inquiry, in
the presence of the petitioner, we deem it just and

OA No. 66 of 2010 | 77
proper so that principles of natural justice is complied
with following witnesses depositions viz. Lt. Col. Jiji
Varghese (PW-1), Lt. Gen. PK Rath (PW-2), Lt. Gen. R
Halgali (PW-4), Maj. Gen PC Sen (PW-5), Col. NK Dabas
(PW-7), Nb. Sub. Surjit Singh (PW-14) may be given to
the petitioner and he may be permitted to cross-examine
them in the witness box. So far as Mr. S. Bajoria (PW-
21) is concerned, petitioner was given an opportunity to
cross-examine him as he was examined much after 18th
November, 2009, but, he declined to do so. Therefore,
we are not inclined to permit the petitioner to cross-
examine Mr. S. Bajoria (PW-21) now.

OA No. 66 of 2010 | 78
75. Therefore, in order to meet the principles of natural
justice we permit Lt. Gen. Avadesh Prakash to cross-
examine the aforesaid witnesses, but, the depositions of
all the aforesaid witnesses should be given to the
petitioner, 15 days in advance, so that he can go through
them and cross-examine them in Court of Inquiry.
76. The next it was submitted by learned counsel for the
petitioner that there is a serious violation of regulation
518 of the Regulation for the Army, 1987 (supra), which
lays down that when the character or military
reputation of an officer is likely to be a material
issue, the presiding officer of the court of inquiry,
wherever possible, shall be senior in rank and other

OA No. 66 of 2010 | 79
members at least equivalent in rank to that officer.
The expression that „wherever possible‟ makes this rule
to be directive and not a mandatory. But, normally, a
presiding officer will be senior in the rank and other
members, atleast equivalent to that of rank of officer.
77. Therefore, so far as presiding officer, in the present
case is concerned, was equivalent in rank i.e. Lt. General
and other members were Major General. Therefore, the
Regulation 518 has been substantially complied with. It is
irrelevant that whether Lt. Gen. Parnaik was junior to the
petitioner that doesn‟t make any difference. But, he is
not lower in rank to the petitioner.

OA No. 66 of 2010 | 80
In this connection our attention was invited to a decision
of Hon‟ble Supreme Court in the case of Union of India
& Anr. V. Charanjit S. Gill [2000 (5) SCC 742]. This
was a case in which Court Martial Proceedings were
challenged and in that context their Lordships observed
that the Judge Advocate must be higher rank holder
than of accused except in the situation where no such
Senior Judge Advocate is available. But, in the present
case, we are still at the stage of Court of Inquiry and
this is a fact finding inquiry. Therefore, this case is
distinguishable on this ground. However, as and when
Court Martial is initiated against the petitioner, it is open

OA No. 66 of 2010 | 81
for them to raise this objection before the concerned
authority.
78. Next it was submitted by learned counsel for the
petitioner that as per the Army Policy dated 11th May,
1993, which says that once the competent authority
applied his mind to the full facts of the case and decides
to initiate administrative action and such action has
commenced, trying the officer summarily or by court
martial for the same offence subsequently is inequitable.
Letter/Army Policy No. 32908/AG/DV-1 dated11th May,
1993 reads as under:
“FINALISATION OF ADMINISTRATIVE/ DISCIPLINARY ACTION
1. Reference this Headquarters Letter No. 35418/AG/DV-1 dated

18th Aug 83 and No. 32908/AG/DV-1 dated 05 Jan 89.
OA No. 66 of 2010 | 82
2. In a recent case the issue of initiating disciplinary /administrative

proceedings against an officer has brought out certain legal
lacunae.
3. To make the essence of the legal requirement more transparent, it
is clarified that once the competent authority after having applied
his mind to the full facts of the case decides to initiate
administrative action and such action has commenced, trying the
officer summarily or by court martial for the same offence
subsequently is inequitable. In this case the summary of evidence
was recorded and the competent authority having known all the
facts of the case decided to issue a show cause notice to the
officer. The officer replied to the show cause notice thereby
disclosing his defence to the charges contained in the show cause
notice. At this stage to revert to disciplinary action is not only
unjustified but also legally unsustainable.
4. However, the legal requirement outlined above does not in any way
impose restrictions on the discretionary power of the competent
authority to chose an administrative mode of action, instead of a
disciplinary mode initially contemplated against the accused, in for
some reason or the other competent authority feels that the
process of disciplinary action as contemplated initially by way of
trial by court martial or summary trial is found to be inexpedient
or impracticable.
5. It is once again emphasized that initiating disciplinary action after
issue of a show cause notice for administrative action is not only
legally unsustainable but also undermines the principles of natural
justice and fair play. You are therefore requested to bring the
contents of this letter to the notice of all concerned for
compliance.
Sd/-
(SM Chand]
Brig
Dy DG(B) D&V
For Adjutant General”
OA No. 66 of 2010 | 83
This is only a general guidance and this is not of binding
nature. It is always open for a competent authority, if it
is satisfied on the complete facts brought to the notice
that the administrative action will not meet the ends of
justice, then, in that case he can resort to Court Martial
or any other mode subsequently. But, in the present
case, no action has been initiated on the basis of Court of
Inquiry, only notice was given to the petitioner that show
cause why administrative action be not taken against him.
Administrative action was not taken. It is only a show
cause notice stage and at the time of show cause notice
the competent authority realize that it is a case in which
Court Martial should be initiated. Then, in that case,

OA No. 66 of 2010 | 84
there is no prohibition for resorting to Court Martial in
the present case. No administrative action was taken
against the incumbent.
79. Ms. Indira Jaising, Additional Solicitor General of India,
very strenuously urged before us that the petitioner has
been given a substantial opportunity to cross-examine the
witnesses and she has taken us to the proceedings to
show that a substantial compliance of the principles of
natural justice was followed. But, we regret we could not
felt persuaded for reasons stated above.
80. As a result of our above discussion, we allow this petition
in part and direct that copies of depositions [Lt. Col. Jiji
Varghese (PW-1), Lt. Gen. PK Rath (PW-2), Lt. Gen. R

OA No. 66 of 2010 | 85
Halgali (P-4), Maj. Gen PC Sen (PW-5), Col. NK Dabas
(PW-7), Nb. Sub. Surjit Singh (PW-14)] shall be given to
the petitioner 15 days in advance and they be called back
before Court of Inquiry to be cross-examined by the
petitioner. Court of Inquiry should be completed within
two months from today and, in case, petitioner does not
wish to cross-examine the witnesses, then, it will be open
for the Court of Inquiry to record reason. It will be
open to the petitioner to lead any evidence by calling
witness or producing any documentary evidence. After
completion of the Court of Inquiry, it will be open for the
Court of Inquiry to give its finding qua petitioner. The
authorities will free be to decide the fate of the case,

OA No. 66 of 2010 | 86
whether to send it for Court Martial or not to send it for
Court Martial. The whole exercise should be done within
two months from today. No order as to costs.
______________________

Chairperson
_______________________
[Lt. Gen. S.S. Dhillon]

Member (A)
New Delhi
22nd February, 2010
TA No.458/2010
1
AT NEW DELHI
TA No.458/2010
Ex. Nk. W/man Balbir Singh .........Petitioner
Versus
For petitioner: Col. (Retd.) S.R. Kalkal, Advocate.

For respondents: Sh. Anil Gautam, Advocate.
CORAM:

ORDER
11.02.2010
Hon’ble Delhi High Court to this Tribunal on its constitution.
2. Petitioner by this petition has prayed that by a writ of
certiorari the order dated 25th June, 2000 being arbitrary and
TA No.458/2010
2
illegal may be quashed and respondents may be directed to
release 50% disability pension to the petitioner with interest.
3. Brief facts which are necessary for disposal of the
present petition are that petitioner was enrolled on 24th December,
1983 as a Sepoy and he was discharged on 31st December, 2003
on the medical ground being suffering 40% disability and
consequently he was released disability pension to the extent of
40%. But the petitioner submits that he is entitled to 50%
disability pension as per the letter dated 19th January, 2010.
4. The respondents has contested the matter and
submitted that the petitioner has been discharged not on account
of medical disability but he has been discharged after full
engagement of his period. We are not going into this issue as
learned counsel for the petitioner has invited our attention to the
recent order of Ministry of Defence dated 19th January, 2010
where they have said that by Memo dated 31.01.2001 stands
modified and all persons would be entitled to benefit of 50%
disability pension who are having disability and war injury pension
above 20%. Therefore, learned counsel for the petitioner submits

TA No.458/2010
3
that he will be entitled to 50% disability pension. Since the policy
has already been revised in view of the letter dated 19th January,
2010, we remit back the matter to the Government to consider it in
the light of the policy and take appropriate action in accordance
with law. Petition is disposed of accordingly. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
February 11, 2010.
TA No.115/2010
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW DELHI

TA No.115/2010
[WP (Civil) No.487/2004 of Delhi High Court]
Disabled War Veterans (India) Regd. .........Petitioner
Versus
For petitioner: Ms. Ashwarya Bhati, Advocate.

For respondents: Sh. Ankur Chibber, Advocate.
CORAM:

ORDER
19.01.2010
1. The present petition has been transferred from Hon’ble
Delhi High Court to this Tribunal on its constitution.
2. This writ petition was filed by Disabled War Veterans India
Regd. through its President Capt. N.K. Mahajan. This writ petition was
filed initially before Hon’ble High Court and after formation of this
Tribunal this has been transferred to this Tribunal. In this petition the
petitioner has prayed for following reliefs :-

TA No.115/2010
2
(a) issue a appropriate writ, order or direction in the nature of
certiorari to delete the relevant provisions of MOD letter No. PC 1
(2)/97/D (Pen-C) dated 16 May, 2001, which places an embargo by
saying that in no case the aggregate of the service element and war
injury element should exceed the reckonable emoluments calculated
on the minimum pay in the revised scale of pay introduced w.e.f. 1 Jan
96 of the rank, rank and group held by the individual.
(b) issue a appropriate writ, order or direction in the nature of
certiorari directing the respondents to pay maximum pension to the war
disabled soldiers, sanctioned by the letter No. 200847/Pen-C/71 dated
24.2.1972; by calculating war injury pay on the upper limit of pay scale
at the time of disablement.
(c) issue appropriate writ, order or direction in nature of writ of
certiorari directing respondents to pay death cum retirement gratuity to
short service commissioned officers as sanctioned by letter No.
200847/Pen-C/71 dated 24.2.1972.
(d) issue appropriate writ, order or direction in the nature of writ of
mandamus directing respondents to revise constant attendant
allowance to the reasonable rate in the consonance with the steeping
inflation rates, adhering to the minimum wages under the Minimum

TA No.115/2010
3
Wages Act, 1948, or alternatively, provide an attendant in view of the
special needs of the disabled soldiers.
3. So far as the prayer (a) is concerned that has already
been redressed by the Government and the Government has already
granted a revised scale of pay as introduced on 01st January, 1997 of
their rank. So far as prayer (d) is concerned, the respondent has
revised this constant attendant allowance of reasonable rate in
consonance with inflation rates adhering to the minimum wages under
the Minimum Wage Act, 1948. This grievance has already been
redressed as the Government has revised the attendant allowance @
Rs. 3000/- p.m. Therefore, out of these aforesaid four prayers, two
prayers have already been acceded to by the Government. Learned
counsel for the petitioner has specially pressed for the remaining two
prayers as a social measure for the benefit of these War Veterans who
had been boarded out because of the war injuries, that is prayer (b)
and (c).
4. So far as the prayer (b) is concerned, we think that the
Government needs to reconsider the matter. It is alleged that the
Government takes a minimum of the pay scale of rank for a disabled

TA No.115/2010
4
soldier for calculation of war injury pay to them. It is alleged that the
maximum of the rank pay scale should be taken for determining the
question of war injury pension. Learned counsel for the petitioner has
elaborated his point by giving example that suppose a Captain who has
been disabled during the war injury and is boarded out then for
determination for war injury pensions, his minimum of pay scale is
taken. Learned counsel for the petitioner has submitted that in that
case injured officer should be given the maximum of the pay of the
rank i.e. Captain. It is because of the war injury the service of the
incumbent has been cut short and he has to retire from the service
prematurely. Therefore, the war injury which has prevented him from
going to the maximum of his pay scale or in rank, taking minimum of
the scale of the rank would be harsh and unfair to incumbent. The
cause of short cutting his service career is not his doing but
circumstances beyond his control that he was unfortunate victim. The
cause of shortening of his career is accountable to third party. The
officers sacrifice their life or career while safeguarding the border of the
nation should be treated fairly and with respect. Therefore, we strongly
feel that it is a matter which requires a serious consideration of the
Government that a person whose career has been sacrificed for
safeguarding the Indian border and he is to be treated in such a poor
way that he is being paid war pension on the basis of minimum of the
TA No.115/2010
5
scale of that rank. Therefore, looking yeoman service rendered by
incumbent, he should be given a fair treatment. His maximum scale of
that rank should be considered for determining the amount of war injury
pension. We strongly feel that cause warrants serious consideration of
the Government.
5. Likewise in grant of Death-cum-Retirement Gratuity (in
short DCRG), there also a distinction has been made between a
person who is commissioned officer and short commissioned officer.
For the purpose of short commissioned officer, the DCRG is differently
valued than the regularly commissioned officers. Once the Short
Service Commission officers and the Permanent Service Commission
officers fight on the border shoulder to shoulder, they form same class
and no further distinction can be made. No micro classification can be
made between commission and non commission officer. Once they
form same class and they are fighting shoulder to shoulder against
enemy and if unfortunately both of them receive an injury and they are
disabled then no distinction can be made in payment of DCRG. This is
highly discriminatory and violative of Article 14 of the Constitution.
Therefore, this is a serious matter which requires urgent consideration
of the Government that both persons should be treated similarly as
they are similarly situated. A bullet coming from the other side of the
TA No.115/2010
6
border does not make a distinction between the Short Service
Commission and Regular Service Commission officers, therefore, to
make a distinction after the discharge on account of war injury and
discriminate them with regard to the DGRC is highly discriminative and
no rationale whatsoever. Therefore, we strongly feel that this is the
case which requires a review by the Government as a policy. We
cannot give them benefit but we can only request the Government that
this payment of DGRC on the basis of distinction between Short
Service Commission and Regular Service Commission is highly
discriminatory. We hope and trust that the Government will remove this
discrimination which is apparent on the face of it. Consequently, we
dispose of this petition with the above directions to the Government.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
January 19, 2010
TA No.771/2009
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT NEW

DELHI
TA No.771/2009
Lt. Col. I.K. Talwar .........Petitioner

Versus
For petitioner: Sh. M.L. Chawla with Sh. G.D. Chawla, Advocates.
For respondents: Dr. Ashwani Bhardwaj, Advocate.
CORAM:
ORDER
18.01.2010
1. The present petition was transferred from Hon’ble Delhi
High Court to this Tribunal on its constitution.
2. Petitioner by this writ petition has prayed that Annexure-A-
1 and A-7 may be quashed and respondents may be directed to grant
him the benefits flowing from Annexure-A-2, A-6 and A-8 by virtue of
which petitioner is entitled to One Time Measure in the pay scale of Lt.
Colonel or equivalent on completion of 21 years of commissioned
service with all consequential benefits including the arrears of pay and
TA No.771/2009
2
allowances with penal interest. It is also prayed that the respondents
may be directed to grant proper pension @ 50% of last pay drawn.
3. The petitioner initially joined service under the Station
workshop of EME, Delhi Cantt. on 19.08.1965 as Telecom Mechanic.
During the service of the Workshop of EME, Delhi Cantt., petitioner
was commissioned in Territorial Army on 14.08.1965 as Second
Lieutenant by the order dated 28.08.1965. He has also produced a
copy of Presidential Notification dated 10.11.1971. The petitioner was
Second Lieutenant from 24.08.1965. The petitioner while serving as
Second Lieutenant was promoted to the rank of Major from 03.06.1981
and ultimately he was promoted to the rank of Lt. Colonel w.e.f.
15.03.1990. The petitioner after serving as Lt. Colonel retired on
attaining the age of superannuation on 31.12.1997 after rendering 28
years 6 months and 14 days embodied service. It is alleged that after
his retirement the petitioner came to know that 5th Central Pay
Commission has recommended as a One Time Measure to those who
became substantive Majors or equivalent before 01.01.1996 will be
granted the scale of Lt. Colonel or equivalent on completion of 21 years
of commissioned service i.e. in their 22nd years with the rank pay of
Majors. The petitioner submitted a representation for One Time
Measure after his completion of 21 years of commissioned service as

TA No.771/2009
3
he is entitled to aforesaid benefits. No action was taken and his
representation was rejected on 08.09.2000.
4. It is submitted by the petitioner that whenever beneficial
orders were passed, the benefits were denied to the petitioner by the
Government authorities. He has pointed out that pensionary benefits
given to commissioned officers of Army are not given to the officers of
Territorial Army which have now been extended to Territorial Army
officers. He has submitted that he was not given 50% pension of the
last pay drawn, when the same benefit was extended to the Armed
Forces personnel. It is also prayed that since the benefits have been
given to the Armed Forces personnel, the Territorial Army is also
governed by the same provisions of the Indian Army as per the order
dated 30.10.1987 in which the clarification has been issued that these
pensionary benefits will be applicable to all commissioned officers
including MNS and Territorial Army personnel, therefore, he may be
given the same benefit. Likewise concept of One Time Measure as
recommended by the 5th Central Pay Commission and lastly his entire
period should be counted for the purpose of pension not embodied
service only but the break which have taken place when he was sent
to the EME from time to time. In the rejoinder, he has submitted break
up period served by him in EME Station Workshop of Army.

TA No.771/2009
4
5. In this background, the grievances of the petitioner are
three folds. One is all the service rendered by him in EME Workshop
should be counted for service pension as per note 4 of Clause 5 of
Government order dated 30.10.1987. He should be given One Time
Measure as given to the other Armed Forces personnel in terms of
Government Order dated 21.11.1997. He should be paid 50% of the
pension on the basis of last pay drawn by him in terms of the
Government Order dated 07.06.1999.
respondents have taken the position that the petitioner is entitled to
count 28 years, 6 months and 14 days service i.e. embodied qualifying
service and the break up for going back to the EME Workshop, cannot
be counted. Therefore, he has been paid pension admissible for 28-
1/2 years and other benefits associated with that.
perused the record. It is true that the Territorial Army is also governed
by the pension regulations pertaining to the Indian Army as it has been
clarified by the Notification of Government dated 30.10.1987. The
relevant portion reads as under :-
“I am directed to refer to the Government decisions on

the recommendations of the Fourth Central Pay
TA No.771/2009
5
Commission as notified vide Government of India,

Ministry of Personnel, Public Grievances and Pensions,
Department of Pension & Pensioners’ Welfare Resolution
No.2/13/87-PIC dated 18th March, 1987 and to convey
the sanction of the President to the modifications, to the
extent specified in this letter, in the rules/regulations
concerning pensionary benefits of the Commissioned
Officers (including MNS and Territorial Army Officers)and
personnel below officer rank (including NCs (E) of the
three Services, Defence Security Corps and the
Territorial Army) (hereinafter collectively referred to as
Armed Forces personnel).”
8. Therefore, once the Territorial personnel has been treated
at par with Armed Forces personnel and consequently all the rules and
regulations pertaining to pension of the Armed Forces personnel have
been made applicable to the personnel of the Territorial Army, Clause
5 deals with qualifying of the service which read as under :-
5. Qualifying service
(a) The term ‘Qualifying Service’ (QS) shall mean:-
Qualifying service reckonable for
Category Pension Death-cum-Retirement Gratuity Retiring/Service/

Invalid/Terminal
Grauity
Officers Actual qualifying Retirement Grauity Death gratuity Actual qualifying

service rendered by the service
officer plus a weightage Actual qualifying Actual rendered.
(in yrs) appropriate to service plus a qualifying
the last rank held as weightage of 5 service
indicated in (b) below years subject to the rendered plus
subject to the total total qualifying a weightage of
qualifying service service including 5 years
including weightage not wieghtage not subject to total
exceeding 33 yrs. exceeding 33 years. qualifying
service not
exceeding 33
years. In case
actual service
is less than 5
years, no
TA No.771/2009
6
weightage
shall be given.
Personnel Actual qualifying Same as above. Same as Same as above.

below officer service rendered by the above.
rank (including individual plus a
NCs (E) and weightage of 5 years
Honorary subject to the total
Commissioned qualifying service
Officers. including weightage not
exceeding 33 years.
(b) Weightage for the purpose of calculation of pension of Commissioned Officers will be as given
below:- (i) Service Officers (other than MNS)
Rank (Army) Rank (Navy) Rank (Air Force) Weightage in years
Subaltern Sub Lt. Plt. Offr/Flg. Offr. 9

Captain Lt. Flt. Lt. 9
Major Lt. Cdr. Sqn. Ldr. 8
Lt. Col. (TS) Cdr. (TS) Wg. Cdr. 5
Lt. Col. (S) Cdr. (S) Wg. Cdr. (S) 7
Col. Captain (with Gp. Capt. 7
less than 3 yrs.
10 mnts
service.
Brig. Cap. (with 3 Air Cmde. 5
yrs. 10 mnths
service & more
Maj. Gen. Rear Admiral AVM 3
Lt. Gen. Vice Admiral Air Marshal 3
Lt. Gen. (Army Vice Admiral Air Marshal (AOC-in- 3
Commander/VCOAS) (FOC-in- C/VCAS)
C/VCNS)
COAS CNS CAS 3
(ii) MNS Officers
Captain 7
Major 6
Lt. Col 5
Col. 5
Brig: 5
Maj. Gen. 3
Notes : (1) There will be no weightage for officers and personnel below officer rank who retire
prematurely for permanent absorption in public sector undertakings and autonomous bodies.
(2) There will be no weightage for officers and personnel below officer rank of the Territorial
Army.
(3) The above weightage shall not be reckoned for determining the minimum qualifying service
specified for admissibility of Retiring/Service Pension i.e. 20 years for service officers (15 years for late
entrants), 15 years for personnel below officer rank and 20 years for NCs(E).
(4) Full pre-commissioned service rendered under the Central Government whether in a civil
Deptt. or in the Armed Forces, shall be taken into account for working out the qualifying service for
earning pensionary benefits subject to fulfilment of other conditions. This will also be counted for
determining the minimum qualifying service indicated in Note 3 above for earning Retiring/Service
Pension.
(5) In calculating the length of qualifying service, fraction of a year equal to three months and
above but less than 6 months shall be treated as a completed one half year and reckoned as qualifying
service.
TA No.771/2009
7
9. Therefore, pension rules and regulations of the Armed
Forces personnel are applicable to the petitioner. Now question is
whether his 28-1/2 years is to be counted or 32 years and 4 months is
to be counted for qualifying service. As per the Note 4 as reproduced
above clearly says that full pre-commissioned service rendered under
the Central Government whether in a civil department or in the Armed
Forces, shall be taken into account for working out the qualifying
service for earning pensionary benefits subject to fulfilment of other
conditions. In the present case, petitioner’s embodied service of 28-1/2
years has been counted whereas the petitioner alleged that he has put
in 32 years qualifying service, including 3 years, 9 months and 28 days
in EME Workshop. While serving in Indian Army he was sent back to
EME Workshop from time to time and he was serving in EME
Workshop under the Indian Army. Therefore, as per Note 4 when a
pre-commissioned service can be counted for the purpose of qualifying
service, we fail to see why the service rendered by the incumbent
under the EME Workshop cannot be counted. Once the decision has
been taken that all the pensionary benefits which are admissible to the
Army personnel being applicable to the Territorial Army then to make a
further distinction that embodied service shall be counted and not other
service, there is no justification. Note 4 of the same order clarifies that
a pre-commissioned service of Central Government is to be counted

TA No.771/2009
8
then there is no reason why a service under the EME Workshop which
is part of the Army can be ignored. There is no justification to ignore
the aforesaid service rendered by the incumbent while working under
the EME Workshop. Therefore, we direct that service rendered by him
in EME Workshop should be counted for the purpose of qualifying
service for pension.
10. When the Government has already decided and extended
the benefits of Pension Regulation applicable to Indian Army personnel
to personnel of Territorial Army then there is no reason why the benefit
of One Time Measure as recommended by the 5th Pay Commission
can be denied to the petitioner. The One Time Measure has been
given to the persons who have stagnated and who could not get benefit
for a long time. Therefore, this One Time Measure was adopted and it
was clearly laid down that those who become substantive Majors or
equivalent before 01.01.1996 will be granted the scale of Lt. Colonel or
equivalent on completion of 21 years of commissioned service i.e. in
their 22nd year with the rank of pay of Major. There is no reason to
deny him the benefit under Sub-clause (a) of the Government Order
dated 21.11.1997.
TA No.771/2009
9
11. Similarly in the letter dated 07.06.1999 of Ministry of Defence for
implementation of recommendations of 5th Pay Commission it has been
decided that w.e.f. 01.01.1996 pension of all Armed Forces pensioners
irrespective of their date of retirement shall not be less than 50% of the
minimum pay in the revised scale of pay introduced w.e.f. 01.01.1996
of the rank and rank and Group (in case of PBRO) held by the
pensioner, therefore, he is entitled to 50% of the last pay drawn by him
with revised pay scale on 01.01.1996. Consequently, we allow the
petition and direct that petitioner’s 32 years and 4 months and 7 days
service should be counted for his pension. Arrears should be worked
out and that should be paid to the petitioner. He should be given 50%
of the last pay drawn in pay scale on 01.01.1996 and thirdly he is also
entitled to the benefits of One Time Measure in terms of the Order
dated 21.11.1997. Consequently, all these three benefits should be
worked out and arrears should be calculated and same shall be paid to
the petitioner with 12% interest. The petitioner shall be entitled to
pension in future also. Petition is accordingly allowed. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
January 18, 2010
TA 413 of 2010 | 1

NEW DELHI.
T.A.No. 413 of 2010

L/Nk. Sanjeev Kumar …Petitioner

Versus
For the Petitioner : Sh. D.S. Kauntae, Advocate

For the Respondents: Ms. Barkha Babbar, Advocate
C O R A M:

JUDGMENT
1. Petitioner by this Writ Petition has prayed that by writ of
mandamus quash or set aside the impugned movement

TA 413 of 2010 | 2
order dated 6th March, 2006, 31st March, 2006 as well
as order dated 15th March, 2007 and direction may be
given to the respondent to reinstate the petitioner from
the date of discharge i.e. 31st March, 2006.
2. Petitioner was enrolled in the Army as a Soldier
General Duty in the JAT Regiment. Petitioner served in
the Army for almost eight years. The petitioner while
serving in JAT Regiment was threatened by Col.
Rajesh Tyagi, Commanding Officer, 4 JAT Regiment,
and forced to write an application for premature
discharge from service. The petitioner refused to do so,
then, Col. Rakesh Tyagi directed Subedar Major Pusa
Ram from the same Unit that if he is not tendered his
resignation, he will have to face Court Martial.

TA 413 of 2010 | 3
3. It is alleged that thereafter petitioner wrote an
application for discharge on 21st February, 2006, under
threat and coercion by Col. Rajesh Tyagi and Subedar
Major Pusa Ram, in order to satisfy their personal
whims and ill-will against the petitioner.
4. The petitioner submitted his application for voluntary
discharge on 22nd February, 2006 on the ground of old
age of his parents and the exercise for discharge was
undertaken and he was actually discharged on 31st
March, 2006 from his Unit. Petitioner was also asked to
file an affidavit before Tinsukhia Courts that he is
voluntarily submitting the letter of discharge and he will
not agitate the matter in any court.

TA 413 of 2010 | 4
5. Thereafter, the petitioner was detained at Bareilly from
6th March, 2006 to 31st March, 2006 and petitioner’s
name was finally struck off from the strength of Army.
6. It is further alleged that Col. Rajesh Tyagi was on 30
days leave and his leave was to start after 22nd
February, 2006. He availed his undue influence and
presence and took personal interest to throw out the
petitioner as expeditiously as possible from army
service.
7. During his stay at Bareilly petitioner was forced to go on
three days leave w.e.f. 14th March 2006 to 16th March,
2006 to his home for obtaining the signature of his wife
on certain documents. However, petitioner filed an
application for revocation of discharge and he gave a
long telegram also but without any result. Thereafter,

TA 413 of 2010 | 5
petitioner filed a statutory complaint dated 13th/14th
March, 2006, which was rejected.
8. Petitioner filed a Writ Petition in High Court and High
Court vide its order dated 30th March, 2006 directed the
respondent to dispose of expeditiously the petitioner’s
statutory complaint, which was filed on 13th/14th March,
2006. Ultimately the statutory complaint was disposed
of on 15th March, 2007.
9. In his statutory complaint as well as in his telegram,
given for revocation, petitioner has given details that
under what circumstances he was forced to file an
application for voluntary discharge on 21st February,
2006.
10. The authorities, in pursuance of the earlier Writ Petition
filed in Delhi High Court in the case of W.P.(C)No.

TA 413 of 2010 | 6
4234/2006 and CM 3575/2006, High Court directed that
a Statutory Petition under Section 26 of the Army Act is
pending for consideration of the respondent that should
be disposed of expeditiously by the respondent while
exercising their discretion in open mind without being
influenced by any observation made in the order.
11. This order was finally passed on 15th March, 2007.
Aggrieved against this order petitioner filed present Writ
Petition before Delhi High Court, which was transferred
to this Tribunal on its constitution.
12. Learned counsel for the petitioner has submitted that
the conditions governed for discharge is given in
detailed memorandum of policy dated 26th May, 2000
that how the officer will be discharged and detailed

TA 413 of 2010 | 7
discharge drill has been given, but, that drill was not
undertaken properly.
13. Petitioner has also submitted that Hon’ble the Supreme
Court in series of cases has held in matters of
resignation and revocation thereof if before acceptance
of resignation incumbent revokes the same then such
resignation should not be accepted viz. Balram Gupta
v. Union of India & Anr. [1987 (Supp) SCC 228], J.N.
Srivastava v. Union of India & Anr. [1998 (9) SCC
559], Shambhu Murari Sinha v. Project and
Development India & Anr. [ JT 2000 (6) SC 358] and
State of West Bengal & ors. v. Sushil Kumar Sharma
[JT 2000 (6) SC 361].
14. Learned counsel submitted that before his request for
discharge is accepted, he has revoked the same,
therefore, in view of the law laid down in the aforesaid

TA 413 of 2010 | 8
judgment, the petitioner should not have been
discharged on 31st March, 2006 as he has already
revoked the request and he has submitted that he had
to write this request for discharge under the personal
influence of Col. Rajesh Tyagi and it was not voluntary
one. Petitioner also submitted that he was discharged
without following the guidelines of memorandum and he
has not filed all the necessary bank accounts and other
papers with the signature of his wife, which were given
to him. Therefore, his pension and other benefits may
not be determined. He has also assailed the order of
the disposal of the Statutory Complaint.
15. Learned counsel for respondents has submitted that
petitioner’s allegation is that he sought voluntary
retirement not because of his own volition but under the
coercion and pressure of Col. Rajesh Tyagi and it is
also submitted that all the necessary exercise for

TA 413 of 2010 | 9
completion of the discharge formalities was done post
haste.
perused the record. It is correct that petitioner did file
the application for voluntary retirement on 21st
February, 2006 and an affidavit to this effect, but, in
fact, he revoked it on 13th March, 2006 by sending
revocation application followed by a detailed telegram
and a statutory complaint that his voluntary order of
discharge was taken under the undue pressure of Col.
Rajesh Tyagi, whether it was done under the pressure
of Col. Rajesh Tyagi or other officers, but, the fact
remains that before the exercise for discharge could be
acted upon the incumbent has already withdrawn the
same. He has also revoked the same on 13th March,
2006, which is evident from the order dated 15th March,
2007 on the rejection of his statutory complaint by the

TA 413 of 2010 | 10
Chief of the Army Staff. Chief of the Army Staff has
only disposed of the petition in a mechanical way
without proper application of mind. When the petitioner
is making assertion that his request for voluntary
discharge was extracted under the pressure then, in
that case, the proper course was to investigate the
matter by a proper enquiry. This kind of casual
disposal of the statutory complaint is not at all
warranted. If the statutory complaints are disposed of
in the light hearted fashion, then purpose of filing the
complaint would loose its significance. So far as law is
concerned, it is well settled by series of decisions of
apex court that in case a person voluntarily gives letter
for resignation, but, before it can be acted upon, it is
revoked, then, in that case, the request for resignation
cannot be implemented.
TA 413 of 2010 | 11
In the case of Balram Gupta (supra) the appellant, after
completing more than 20 years of service, offered his
letter dated 24th December, 1980 to voluntarily retire
from the service w.e.f. 31st March, 1981 by treating the
notice period w.e.f. 1st January, 1981. The government,
vide its letter dated 20th January, 1981 allowed the
appellant to do so. However, in the mean time, the
appellant stated that on account of persistent and
personal requests from the staff members, he had to
change his mind and accordingly by his letter dated 31st
January, 1981 sought to withdraw his notice of
voluntary retirement. But the authority disallowed the
appellant’s request and precluded the government
servant from withdrawing his notice. Apex Court, while
allowing the petition of the petitioner held “In the facts of
the instant case the retirement from the government
service was to take effect at a subsequent date

TA 413 of 2010 | 12
prospectively and that withdrawal was long before that
date. Therefore, the appellant had locus poenitentiae.
The dissolution of the contract of employment would be
brought about only on the date indicated i.e. March 31,
1981; upto that the appellant was and is a government
employee. There is no unilateral termination of the
same prior thereto. He is at liberty, and entitled
independently without sub-rule (4) of Rule 48-A of the
Pension Rules, as a government servant, to withdraw
his notice of voluntary retirement. In this respect it
stands at par with letter of resignation.”
17. This view has been followed in all the subsequent
decisions, which have been referred hereinabove.
Referring to the present facts of the case, the petitioner
is suppose to have tendered a letter for voluntary
discharge on 21st February, 2006, though, under
pressure, but, he was to be discharged on 31st March,

TA 413 of 2010 | 13
2006, but before that he has already moved an
application for revocation of letter of discharge on 13th
March, 2006. Petitioner should not have been
discharged on 31st March, 2006. This action of
respondent is prima facie bad in law and equally wrong
disposal of the statutory complaint by the Chief of the
Army Staff on 15th March, 2007. Consequently, we
allow this petition and set aside the order of discharge,
petitioner should be reinstated and he shall be entitled
to all back wages. No order as to costs.
______________________
Chairperson
_______________________

Member (A)
New Delhi
08th February, 2010
TA 318 of 2010 | 1

NEW DELHI.
T.A.No. 318 of 2010

Ex. Rect. Sunil Kumar Sharma …Petitioner

Versus
For the Petitioner : Col. S.R. Kalkal (Retd.), Advocate

For the Respondents: Mr. Gaurav Liberhan, Advocate
C O R A M:
JUDGMENT
1. Petitioner by this Writ Petition has prayed that by writ of
mandamus directing the respondents to release

TA 318 of 2010 | 2
disability pension which consists of disability element of
pension and service element of pension from the date
of discharge of petitioner. He has also prayed that the
order dated 30th July, 1984 and the order dated 6th
October, 2008 may be quashed being arbitrary and
illegal.
2. Petitioner was enrolled in the regular Army as a
combatant soldier on 26th March, 1983, after having
been found medically and physically fit in all respects.
3. Petitioner during tough physical training of the Army in
Madras Engineering Group started having a health
problem. He was treated at Air force Hospital,
Bangalore but could not be cured.

TA 318 of 2010 | 3
4. The petitioner was brought before Medical Board and
authorities recommended that the petitioner be
invalidated out of service and placed the petitioner in a
Low Medical Category EEE by assessing disability @
20%. The petitioner was diagnosed as a case of
neurosis.
5. Petitioner was discharged from Army on 18th April, 1984
and he was not given any shelter of appointment.
Petitioner made constant correspondence with his
record office from 1986 to 2003 without any benefit.
Petitioner was informed that since his disability is not
attributable to the military service therefore he was not
given any pension. Petitioner continued his process of
correspondence and filed Writ Petition No. 1266 of
2006 before Hon’ble Delhi High Court and Hon’ble
High Court vide order dated 30th April, 2008 disposed

TA 318 of 2010 | 4
the same with the direction to hold appeal Medical
Board.
6. In pursuance of the direction given by the Hon’ble Delhi
High Court the appeal Medical Board was held and
detailed reasons were given by the appeal Medical
Board for his discharge, that why this neurosis could
not be detected at the time of his initial recruitments.
The observation given by the Medical Board reads as
under:
“The ID is a disorder which has genetic and

developmental mechanisms. Other factors like
neurodevelopmental organisation, neurocognitive
architecture, critical social transition and repeated
stress episode have a role to play in the
occurrence of the disorder. In view of the above
and in the instant case as no obvious triggers
were evident and the ID being predominantly a
genetic/developmental disorder is not attributable
to mil. service. The ID cannot be detected when
the indl. Is asymptomatic. The service related
aggravating factors as mentioned in para 54,
TA 318 of 2010 | 5
chapter VI, GMO Mil Pens-2002 & amendment –

2008 did not exist in the instant case, hence the
ID is conceded as neither attributable nor
aggravated by mil. service.”
7. A detailed order was given that this was a genetic
and it cannot be detected at the time of initial
recruitment and detailed factor mentioned in para
54 Chapter VI, GMO Mil Pens-2002 & amendment
2008 did not exist in the case of petitioner. The
matter was discussed, in detail, in the judgment
delivered by us in the case of ‘Nakhat Bharti etc.
etc. V. Union of India & Ors.‟, in that the matter
was discussed at length that in order to deal with
the subject detailed instructions have been given to
the medical board and especially in case of a
mental behaviour and psychiatric disorders they
can occur in certain conditions like

TA 318 of 2010 | 6
counterinsurgency or high altitude area service,
deployment at extremely isolated posts, diving or
submarine accidents etc. But, those conditions in
case of petitioner did not exist as he was not posted
in such a condition. Therefore, the medical board
held that the psychological disorder of the petitioner
is not attributable to military service.
8. Learned counsel for the petitioner referred to
various decisions of the apex court in the case of
„S.R. Bhanrale v. Union of India & Ors. [AIR 1997
SC 27], S.K. Mastan Bee v. The General
Manager, South Central Railway & Anr. [ JT 2002
(10)SC 50], Union of India v. Tarsem Singh [2009
(1) All India Service Law Journal 371] and Basanti
Prasad v. The Chairman, Bihar School Examination

TA 318 of 2010 | 7
Board & Ors. [2009 (3) SCT 761] to support his
contention that delay in such matter is not fatal.
9. It is true that question of delay varies from case to
case and the courts can modulate the relief. But, in
this case the delay was from 1984 to 2006 when
petitioner woke up and filed a petition before Delhi
High Court and obtained order for re-examination
by medical board. Such unexplained delay cannot
be condoned and the correspondence will not
extend the time. Be that as it may, but the fact
remains that in the present case medical board was
convened and given observations, according to the
directions given by the Hon’ble High Court, a
detailed reason has been passed by the medical
board that the petitioner’s disability was not
attributable to military service. Therefore, there is

TA 318 of 2010 | 8
no ground to interfere in this petition and the same
is dismissed. No order as to costs.
______________________
Chairperson
_______________________
Member (A)
New Delhi
08th February, 2010
TA No.367/2009
1

NEW DELHI
TA No.367/2009
[WP (Civil) No.2185/1997of Delhi High Court]
Ex. Cpl. Ram Avtar .........Petitioner

Versus

For respondents: Flt. Lt. Vishal Chopra.
CORAM:

ORDER
07.01.2010
1. The present petition was transferred from Hon’ble
Delhi High Court to this Tribunal on its formation.
2. Petitioner by this writ petition has prayed that
respondents may be directed to release pensionary benefits to the
petitioner.
TA No.367/2009
2
3. Brief facts which are necessary for disposal of present
petition are that petitioner was recruited as Airman on 20th May,
1982 after due medical examination. Petitioner after recruitment
served the Indian Air Force with best of his ability. He was
recommended for promotion also. But unfortunately in the year
1994 Medical Board examined the petitioner and came to the
finding that he was suffering from colour blindness which
disenables him from job in the trade of Instrument Fitter in the
Indian Air Force. Petitioner was again re-examined and the
Medical Board confirmed their opinion. Therefore, Commanding
Officer recommended that his trade may be changed. The
Authorities offered him lower trade which he was not willing to
accept and he objected for changing his trade. Despite his
protest, petitioner was directed to join the lower trade which
petitioner refused to accept. Therefore, respondents discharged
him service. He was discharged by the order dated 06th April,
1995 and it was clearly mentioned that petitioner was discharged
from service “being medically unfit for Instrument/Fitter duties and
unwilling to remuster to any other lower trade”. Therefore,
petitioner was found medically unfit to work as an Instrument Fitter

TA No.367/2009
3
and he was discharged from service under Rule 52 Clause 2 (h)
of the Air Forces Rules. Petitioner had put in 12 years and 350
days service. Petitioner of course was paid gratuity and other
benefits but he was deprived of regular pension. Therefore,
petitioner filed present petition before Hon’ble Delhi High court.
4. Respondents in their written have admitted that
petitioner was discharged because he was not prepared to accept
the lower grade and he was found medically unfit. It is pointed out
that since petitioner was unable to discharge duties with the post
of Instrument Fitter, he was offered a lower post which he was not
willing. Therefore, respondents had no choice other than to
discharge him from service.
5. Petitioner is not present but we have heard Flt. Lt.
Vishal Chopra appearing for respondents and perused the reply
filed by the respondents. It is true that minimum qualifying service
for pension is 15 years and in the present case petitioner has less
than 15 years of qualifying service, therefore, he was not paid
service pension.
TA No.367/2009
4
6. After going from the record it appears that this case is
covered under Rule 153-A of Air Force Rules, 1961 which reads
as under :-
“153-A. If individuals who are placed in a

lower medical category (other than „E‟) permanently
and who are discharged because no alternative
employment suitable to their low medical category
could be provided, shall be deemed to have been
invalided from service for the purpose of entitlement
rules laid down in Appendix II to these regulations.”
In this case, it appears that the order dated 06th April, 1995
clearly says that petitioner is colour blind therefore, he is medically
unfit to discharge duties of Instrument Fitter and he was not willing
to accept lower trade and therefore, he was discharged from
service which virtually amounts to invalidating out from service
being a lower medical category.
7. Since petitioner was medically found unfit to discharge
his duties as such he will be entitled to pension as per Rule 172
which says that in such cases the person would be entitled to

TA No.367/2009
5
pension after putting 10 years of service. The Rule reads as
under :-
“172. The minimum period of qualifying

service required for an invalid pension is 10 years.”
In the present case the incumbent has already put 12
years and 350 days. For persons who have been going out on
medical ground and not inclined to accept lower trade, for such
persons 10 years of service will be qualifying service. In view of
this, we are of the opinion that petitioner has wrongly been denied
the pension. Petitioner is entitled to pension as per Rule 172 as a
result petition is allowed and petitioner shall be paid pension as
per Rule 172. This should be worked out within a period of three
months from today. All the arrears should be paid to the petitioner
and arrears will carry interest @ 12% p.a. No order as costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi
January 7, 2010.
TA No.601/2009
1

NEW DELHI
TA No.601/2009
Sub. Jagtar Singh .........Petitioner

Versus

For respondents: Ms. Swatee Singh Sachan, proxy for Dr.
Ashwani Bharadwaj, Advocate.
CORAM:

ORDER
06.01.2010
2. Petitioner by this writ petition has prayed to issue a
writ of certiorari to quash the orders dated 20.05.2006 and
03.10.2006 passed by respondents No. 2 and 3 and release the

TA No.601/2009
2
entire sum of arrears of salary, other pensionary benefits including
the service gratuity to be sanctioned w.e.f. 30.09.2006 by
deeming petitioner’s discharge w.e.f. 30.09.2006 in the light of
initial discharge order dated 19.04.2006 declaring the petitioner is
entitled to receive and draw service pension as applicable to the
petitioner in the rank of Subedar which was actually held by the
petitioner at the time of passing the said impugned orders by the
respondents.
3. Brief facts which are necessary for the convenient
disposal of present petition are that petitioner was enrolled in the
Army as a Soldier/General Duty on 20th June, 1978 in the Bengal
Engineer Group and after having rendered almost 28 years
service, the petitioner was elevated to the next higher ranks of
Havildar w.e.f. 27.07.1994, Naib Subedar w.e.f. 01.08.2003 and
Subedar w.e.f. 21.02.2006 and the petitioner was actually holding
the rank of Subedar till he retired. The petitioner’s services were
extended by two years till 30.06.2008 but due to cancellation of
extension, petitioner was further ordered to be discharged w.e.f.
30.09.2006 vide BEG Records letter dated 19.04.2006. It is
further alleged that as per order dated 15th April, 2006, petitioner
TA No.601/2009
3
was required to be discharged from 30.09.2006 but again
respondent no. 2 passed an impugned order dated 20.05.2006
stating that petitioner shall be discharged from 30.06.2006 without
indicating any reason or reasonable grounds for amending the
date of retirement of petitioner. Finally petitioner was discharged
from regiment strength by the order dated 30.06.2006. Petitioner
was not granted pension of Subedar but granted pension of Naib
Subedar. The grievance of the petitioner is that since he has
retired as Subedar, he should have been given the pension of
Subedar and not of Naib Subedar which causes him great
monetary hardships. Therefore, petitioner approached Hon’ble
Delhi High Court by filing present writ petition which has been
have taken the position that since petitioner did not complete
more than 10 months mandatory service on the rank of Subedar
and he has only completed four months and eight days which
disentitles him to draw the pension on the rank of Subedar.

TA No.601/2009
4
5. We have considered the submissions made on behalf
of parties and perused the record.
6. Normally the principle which now emanates from the
various decisions of Hon’ble Supreme Court as well as High
Courts and the Government’s orders bearing on the subject that
incumbent shall be given pension benefits on the basis of last pay
drawn. In this case, petitioner was holding the rank of Subedar
when he superannuated. The qualification of having minimum
period passed has no relevance. Since the incumbent has retired
as a Subedar, therefore, he is entitled to a pension on the basis of
last pay drawn and no qualification can be put on the period to be
spent on the last rank held by him. We don’t think it proper or
rational principle to qualify the period or holding the post for grant
of pension as the principle which has been accepted is the last
pay drawn basis for grant of pension. Therefore, we are of the
opinion that the qualification put up by the respondents in denying
the pension on the last rank held by him is not justified and
accordingly same is set aside by these aforesaid orders and direct
that let the pension of the petitioner may be determined on the

TA No.601/2009
5
basis of last rank held by him irrespective of period held by him.
Arrears on the rank of Subedar shall also be released. Arrears
will carry interest @ 12% p.a. The whole exercised shall be
conducted within three months from today as incumbent has
already been retired. Consequently petition is allowed and orders
dated 20.05.2006 and 03.10.2006 are set aside. No order as to
costs.
A.K. MATHUR
(Chairperson)
M.L. NAIDU
(Member)
New Delhi.
January 06, 2010.
TA 19 of 2010 1

NEW DELHI.
T.A.No. 19 of 2010
Rfn. Rakesh Panwar …Petitioner
Versus
For the Petitioner : Col.(Retd.) K. Digamber Singh, Advocate

For the Respondents: Ms. Jyoti Singh, Advocate
C O R A M:
JUDGMENT
1. Petitioner by this Writ Petition has prayed that by an
appropriate writ or direction the impugned order dated 6 th
March, 2000 of the summary general court martial of the
petitioner may be quashed and petitioner may be

TA 19 of 2010 2
acquitted of all the charges and be reinstated with full
back wages.
2. The petitioner Rakesh Panwar was employed as a Rifle
Man being No. 288707-N in the year 1989. Three years
ago the petitioner was posted to Buddal, near Rajouri in
Jammu & Kashmir.
3. According to prosecution story in the intervening night of
29 and 30 April, 1999 there was a blast in the living tent
of 12 platoon causing injuries to Hawaldar Udaibir Singh
and Lance Nayak Satish Kumar. Hawaldar Udaibir
Singh was later on succumbed to injuries. Petitioner
was also sleeping in the same tent where the deceased
was sleeping at the time of the blast of the hand
grenade.
4. The petitioner was arrested by the army authorities on
30th April, 1999 at about 7.15 a.m. and was locked inside
the room and, thereafter, petitioner was kept in the said
locked room continuously and was tortured with all the

TA 19 of 2010 3
methods by Captain Shahid Hussain, Lt. Sachin Sawant
Ramachandra, Major Brijender Singh and policemen of
the local police station. They brought up a plain paper
and directed the petitioner to copy the statement,
prepared by them, and to sign in his own handwriting.
The petitioner was threatened that the torture will be
continued until he reduce that statement from the
statement prepared by them treating it to be of voluntary
confession.
5. Thereafter, on 13th December, 1999 the petitioner was
charged commiting a civil offence that is to say murder
under Section 302 of Ranbir Penal Code at thefield on
30th April, 1999 by intentionally causing the death of
deceased Hawaldar Udaivir Singh. The Court Martial
was convened and the petitioner pleaded not guilty and
prosecution examined 17 witnesses in support of their
case. The petitioner did not examine any witness.
Petitioner was examined as a defence witness and three

TA 19 of 2010 4
persons viz. Maj. Brijender Singh, Col. Daljir Kumar and
Lt. Col. AS Sehgal were examined as court witnesses.
6. On 3rd March, 2000 the court martial gave its finding
guilty against the petitioner and found him guilty under
section 302 of Ranbir Penal Code and he was convicted
for life imprisonment and was dismissed from service.
That order of court martial was confirmed by the
authorities.
7. Aggrieved against the order dated 3rd March, 2000 the
petitioner preferred a criminal writ before the Hon’ble
High Court of Delhi. On formation of Armed Forces
Tribunal, the case has been remitted by the Delhi High
Court for disposal before us.
perused the record.
9. The case of prosecution was that on the intervening
night of 29th – 30th April, 1999 petitioner surreptitiously
put the hand grenade under the beddings of deceased. It

TA 19 of 2010 5
is alleged that that hand grenade belongs to one
Rifleman Neeraj Kumar as the same was found missing
and that exploded and certain safety pins and other
remaining of the hand grenade (HE 36) were also
recovered from the tent. The case of prosecution was
that this hand grenade was placed by the petitioner
under the beddings of the deceased Hawaldar Udaibir
Singh and it got exploded, which ultimately caused
death of Hawaldar Udaibir Singh.
10. PW-1 is Havildar Daulat Singh prepared the site plan,
PW-2 Major Nikhil Kumar Suryavanshi, Company
Commander of Delta Company of 12th Battalion of
Rajputana Rifles. He has deposed as soon as he heard
the blast he reached tent and found that somebody has
fired on the camp and he thought that it must have some
terrorists attacked, subsequently, it came to the light that
hand grenade blasted inside the tent, which caused
serious injuries to Hawaldar Udaibir Singh and Lance
Naik Satish. Lance Naik Satish was given first aid and
TA 19 of 2010 6
Hawaldar Udaibir Singh was shifted to hospital but he
died on the way.
11. PW-3 is Havildar Om Prakash has deposed about the
defence of the accused and he has stated that Havildar
Udaibir Singh told that Rakesh Panwar is not carrying
out sentry duties as instructed by him and he told Udaibir
Singh that you mind your business otherwise he will sort
him out. PW-3 also said that on the night of 29-30
April, 1999 when he was sleeping in the tent heard a
loud blast he thought that it must have done by some
militants. Later on he came to know that it was not by
militants, but, it was the blast of the hand grenade which
has caused fatal blast to Havildar Udaibir Singh and
injured Lance Naik Satish Kumar.
12. PW-4 Rifleman Neeraj Kumar was also in 12 Platoon,
Delta Company of 12th Batallion, the Rajputana Rifles,
has also deposed that Havildar Udaybir Singh told him
that the accused has refused to attend the class despite

TA 19 of 2010 7
he went and met the accused. It is alleged that accused
told Havildar Udaybir Singh ‘do not talk nonsense,
otherwise I will sort you out’. PW-4 also said about the
blast and sending the victim to the hospital.
13. PW-5 Lance Naik Satish Kumar, who was also sleeping
along with the accused in the same tent and he received
injuries as a result of blast. He also said about some
dispute between deceased and accused on the issue of
liquor. It is alleged that accused hit the deceased with
the wooden part of shovel and the matter was reported
to the Commanding Officer. PW-5 also supported that
the blast took place in the tent and he received injuries
and one Rifleman Rajvir Singh put a bandage on him.
Havildar Udaybir Singh also received serious injuries,
the accused tore his vest and tried to use it as bandage
on the injuries of Havildar Udaybir Singh. PW-5 also
deposed that the accused was of a stubborn nature and
the persons of his platoon rarely communicate with him.

TA 19 of 2010 8
He also said that his shirt got torn due to splinters of
exploded grenade.
14. PW-6 Naik Pratap Singh is witness of recovery of some
part of hand grenade.
15. PW-7 Havildar Lal Singh was also sleeping inside the
living tent when the blast took place. He also deposed
that he along with Havildar Om Prakash put bandage on
the injuries of Havildar Udaybir Singh, thereafter,
Havildar Udaybir Singh was immediately shifted to the
hospital.
16. Other witnesses were also examined but the relevant
witnesses who were at the time were the aforesaid
witnesses.
17. PW-10 Dr. Bashir Ahmed, Assistant Surgeon, District
Hospital, Rajouri, was also examined, he deposed that
cause of death of the deceased was due to missile of
substance like grenade may cause injuries and these are
the injuries of grenade blast as a result of splinters.

TA 19 of 2010 9
18. PW-12 Captain Shahid Hussain who has come in
witness box and stated that the accused confessed
before him that he is solely responsible for explosion of
grenade in which Havildar Udaybir Singh was killed.
Accused narrated the sequence how the grenade was
exploded by him. Accused told him that he took out the
grenade of Rifleman Anil Kumar from his pouch and put
it under the bed of Havildar Udaybir Singh. After about
approximately 10 minutes time, he took out grenade
from the pouch of Rifleman Neeraj Kumar and put it
inside the pouch of Rifleman Anil Kumar and confessed
his guilty in his own handwriting in Hindi and signed it,
which was admitted in evidence before the court as ‘R’.
PW-12 also identified the signature of the accused on
the statement written by him.
19. PW-13 Lt. Sachin Sawant Ramchandra, he also
deposed that he along with Captain Shahid Hussain
went to the room in which the accused was kept and
when they entered the room accused stood up and

TA 19 of 2010 10
wished them. The accused disclosed the whole story
regarding the crime he committed and confessed his
guilty. He also deposed that accused was given the
statement out of his free will and voluntarily.
20. PW-15 Major Virinder Singh deposed that he has
prepared the record of summary of evidence and that the
accused gave the statement voluntarily and he signed
the statement in the presence of independent witness
Subedar Sumer Singh and summary of evidence passed
on to Colonel Daljit Kumar.
21. PW-16 Shri RS Ahluwalia, a Private Investigator for
Insurance Companies, before him also accused
confessed of putting hand grenade in the bedding of
Havaldar Udaybir Singh, which blasted.
Thereafter, the statement of the accused was recorded.
DW-1 (Rifleman Rakesh Panwar), he in his statement
said that 4 to 5 persons of 12 Platoon used to gamble.

TA 19 of 2010 11
Havildar Om Prakash, Naik Pratap Singh, Havildar Lal
Singh, Lance Naik Satish and Company Quarter Master
Havildar, Havildar Karam Singh used to buy rum from
the market through locally employed civilians and he
reported this fact to the higher authorities. It is alleged
that Havildar Udaybir Singh also used to gamble in the
night. They used to quarrel with the jawans over the
money.
Havildar Udaybir Singh, Rifleman Neeraj and Rifleman
Maharaj Singh had illicit relations with a girl. It is
alleged that earlier to the fatal day, that was happened,
Havildar Udaybir Singh started abusing him as he was
drunk. Havildar Udaybir Singh pushed him and his food
fell on the ground. He narrated the whole incident to
Subedar Vikram Singh and Subedar Chhotu Singh. His
statement was also recorded and it was sent to the
higher authorities. The matter was enquired
subsequently and Major Nikhil Kumar Suryavanshi called
Havildar Udaybir Singh and himself and enquired from

TA 19 of 2010 12
both of us. Major Nikhil Kumar Suryavanshi called a
clerk and told him that he should prepare the charge
sheets for both of us. Thereafter, Major Nikhil Kumar
Suryavanshi told the clerk, Rifleman Ibrahim Ali Khan
that he will be marched up alone on a charge sheet
before the Commanding Officer.
Major Nikhil Kumar directed me to sign the charge sheet,
but, I refused to sign the charge sheet. However, he
obtained the signature of Subedar Chhotu Singh and
Subedar Samunder Singh on the charge sheet. He told
Major Nikhil Kumar Suryavanshi that he had come for
interview by the Commanding Officer, whereas, I have
been asked to sign the charge sheet against myself.
Thereafter, he was marched up before the Commanding
Officer, Colonel Daljit Kumar, and he narrated all the
events to Commanding Officer about Havildar Udaybir
Singh regarding his habit of drinking liquor and creating
problems. Thereafter, the summary of evidence was
recorded and Havildar Udaybir Singh was found sitting

TA 19 of 2010 13
weeping in his tent. Havildar Udaybir Singh was tried to
seek leave but his leave was refused.
He deposed that on 29th April, 1999 he was on sentry
duty at MMG post from 1600 hrs. to 1800 hrs. He was
relieved by Rifleman Anil Kumar, then, enquiry was
conducted statement of Havildar Udaybir Singh was
recorded and he was also cross examined. On the night
he took his dinner at 2030 hrs and at about 2100 hours
he collected Rum Allowance from Havildar Karan Singh.
Havildar Udaybir Singh and others also took their Rum
Allowance. At about 2130 hrs. he went to the store tent
to get drinking water. He saw Havildar Udaybir Singh,
Havildar Om Prakash, Naik Pratap Singh and Havildar
Karan Singh were gambling and drinking liquor in the
store tent. He came back and slept on his bed in the
living tent.
After some time, he heard a loud blast inside the living
tent where he was sleeping during the night. He woke

TA 19 of 2010 14
up by the blast and found smoke inside the living tent.
He immediately rushed out of the tent. The whole
company came out from the tent. He saw Havildar Om
Prakash was telling Havildar Udaybir Singh to get out of
the tent. Havildar Udaybir Singh was not speaking, and,
thereafter, Subedar Vikram Singh told Havildar Om
Prakash to check what had happened to Havildar
Udaybir Singh. Havildar Udaybir Singh was bleeding
from his back side near the waist. Subedar Vikram
Singh told Havildar Om Prakash to put a bandage on the
injuries of Havildar Udaybir Singh. Since Havildar
Udaybir Singh was bleeding profusely, he tore off a vest
which was kept nearby in the living tent and used as
bandage on the injuries of Havildar Udaybir Singh.
He deposed that he was not issued with any grenade.
He collected his belongings from the living tent. He
accompanied the body of the deceased to the hospital
and then came back to the Battalion Headquarter

TA 19 of 2010 15
At about 0715 hrs. on 30th April, 1999 he was locked up
inside a room. A guard was also placed on him. On 30 th
April, 1999 in the evening Major Brijender Singh, Captain
Shahid Hussain and Lt. Sachin Sawant Ramchandra
came to his room and enquired from him what had
happened. He told the whole incident as he knew on the
night of 29th/30th April, 1999.
On 1st May, 1999 in the morning Captain Shahid
Hussain, Major Brijender Singh and Lt. Sachin Sawant
Ramchandra again came to his room and removed his
guard. He was beaten up by them after tying his hands
behind his back. He was given blows on his face by
them.
On 2nd May, 1999 they again came to his room with 2 to
3 civil policemen and he was beaten by civil police after
removing the sentry from the room. He was beaten by
policemen by a stick on his legs and sole of his feet.
They also pricked pins below his nails.

TA 19 of 2010 16
On 3rd May, 1999 again Lt. Sachin Sawant Ramchandra,
Captain Shahid Hussain, Major Brijender Singh and
policemen shoved a piece of cloth in his mouth after
making me blind folded. They tied his hands behind his
back. Thereafter, they forcibly took my trouser and gave
electric shock on his penis. The above treatment
continued for some days. One day they applied chilli
powder and petrol into his anus. This ordeal continued
for 10 to 12 days. They threatened him that they will kill
me and will show it as an encounter with militants. He
started passing blood in his stool and bleeding from the
nose as a result of injuries sustained by the blows. They
forced him that he should write whatever they asked him
to write. One day Major Brijender Singh, Captain Shahid
Hussain and Lt. Sachin Sawant Ramchandra and police
personnel took his finger prints of all ten fingers and also
his thumb impression on 8 to 10 blank pages and his
signature on blank papers.

TA 19 of 2010 17
Other day Colonel Daljit Kumar, Commanding Officer
also came and told him that unless he writes whatever
they wanted him to write, he will continue to get the
aforesaid physical torture. He got fed up and depressed
due to continuous beating. He told them that whatever
you want he will do it. Captain Shahid Hussain, Lt.
Sachin Sawant Ramchandra, Major Brijender Singh and
policemen brought a written statement on a piece of
paper and he was told to copy the same in his own
handwriting. He did not copy the same because his
fingers were swollen at that time. Then, he handed over
the statement after copying the same. Again, on the next
day, with two pre-written statements on two piece of
papers, asked him to copy the same. He copied the
same and handed over to them. Captain Shahid
Hussain gave him the medicine and about two or three
injections. Thereafter, they stopped beating me after
they extracted my statements.

TA 19 of 2010 18
Thereafter, he was taken in a room by sentry after
handcuffing him by a nylon rope. Major Virinder Singh
recorded the statements of three witnesses in rough with
a pencil. Petitioner cross-examined Rifleman Maharaj
Singh, Rifleman Neeraj Singh and Havildar Om Prakash,
when he was given a copy of summary of evidence at
later stage, he found the questions asked by him in
cross-examination were omitted altogether. On the
same night, he was beatn-up again for asking such
absurd questions.
He was again called by Major Virinder Singh regarding
the incident of 7th April, 1999 and Major Virinder Singh
recorded the same with a pencil. He deposed that he
did not give any other statement in the summary of
evidence. Whenever he tried to cross-examine the
witness, they used to beat me. Major Virinder Singh and
Major Brijender Singh got his signatures on 10 to 12
pages of summary of evidence

TA 19 of 2010 19
They used to censor the incoming letters from my home.
They told me to write to my home that everything is
alright.
In October, 1999 Major Lewellyn Nott, Major Nikhil
Kumar Suryavanshi and Head Clerk Subedar Major
Birbal came to his room and told him that he had to give
a statement in writing regarding the case. They again
started beating him and obtained a written statement
from him. Whatever they had written, he copied the
same on a piece of paper in his own handwriting.
Thereafter, he saw the statement only on 12 th February,
2000 when the witnesses produced the same before the
court. He had never seen in his life Shri RS Ahluwalia,
before he produced in the court.
22. In short, petitioner disowned his so called confession
and deposed that he was beaten by using all kinds of 3 rd
degree methods and it was not voluntarily given by him.

TA 19 of 2010 20
He deposed that he informed his Commanding Officer
before commencement of the Court Martial.
23. On the basis of this evidence the Court Martial found that
on the basis of the testimony of eye witnesses and after
carefully scrutinizing the evidence on record, found the
petitioner guilty and summarized five circumstances
appearing against the petitioner viz. (i) that accused was
present in the tent at the time of blast; (ii) he had
sufficient motive to eliminate the deceased, in order to
save himself from a likely court-martial or incurring a red
ink entry and statements of PWs 2, 3, 4, 5 and 9; (iii)
accused slept just opposite direction of the deceased;
(iv) a safety pin of the grenade was found at about one
or one and half meters outside the living tent just behind
the place where the accused slept on the night of the
incident; and (v) accused actively participated in tying
the bandage to the deceased. And, his extra judicial
three confessional statement to different persons at
different dates, and, his confessional statement given to

TA 19 of 2010 21
Captain Shahid Hussain, Lt. Sachin Sawant
Ramchandra and Shri RS Ahluwalia. From this the
Court has concluded that on the basis of the
confessional statements given voluntarily by the accused
and the circumstances against the accused stand fully
established and accordingly accused was convicted
under Section 302 of Ranbir Penal Code and sentenced
to life imprisonment and dismissed from service.
24. Petitioner filed the Writ Petition challenging this Court
Martial Proceedings before Delhi High Court, which has
been transferred to this Tribunal, after constitution of this
Tribunal.
perused the record. All the evidence which has been
reviewed by us was clearly shows that there is no direct
evidence of any witness to show that the hand grenade
was put by the accused under the beddings of the
deceased Havildar Udaibir Singh, which ultimately

TA 19 of 2010 22
proved to be fatal. All the evidence which has been
produced only show the past incidents of souring
relations of the accused with the deceased but that is not
sufficient to hold the accused guilty. The whole case
hinges on the so called extra judicial confession given
before insurance agent PW-16 and the confession
recorded by the Lt. Sachin Sawant Ramchandra,
Captain Shahid Hussain and Major Brijender Singh by
putting pressure on the accused. The accused has very
categorically disowned the so called confession made
before them under his signature. In sum total the
accused has totally retracted from his so called
confession. Basic evidence which has been produced
connecting accused of the commissioning of crime is the
so called confession or the extra judicial confession.
But, the accused has denied of giving such confession
and has deposed that it was extracted after beating and
it was never a voluntary. If this evidence is taken out
then nothing remain except suspicion on account of so

TA 19 of 2010 23
called strained relations between the deceased and
accused.
attention to various decisions of the Apex Court . In the
case of ‘Parmananda Pegu v. State of Assam’ [AIR
2004 SC 4197] it has been clearly held that retracted
confession cannot be acted upon unless corroborated in
material particulars. This proposition of law is settled
and any number of decisions of Apex Court can be
multiplied for this purpose. We do not think it necessary
to refer all the decisions, which have been referred by
the learned counsel for the petition. Suffice it to say that
legal proposition is settled in beyond doubt and no
confession or extra judicial confession can be acted
upon unless it is of voluntary and out of free will and not
extracted by pressure or third degree methods. Even
the Courts had gone to the extent that even in case of
voluntary confession it need to be corroborated so as to
rule out any possibility of miscarriage of justice. In the

TA 19 of 2010 24
present case petitioner has retracted so called
confession which has been obtained by beating and
maltreating the petitioner. Therefore, this confession
was not voluntary and it cannot be acted upon.
Likewise, extra judicial confession made before the
various deponents cannot be accepted as same was not
corroborated by independent evidence.
27. In this view of the matter we are of the opinion that in the
present case confession and so called extra judicial
confession are taken out, nothing remains in this case,
as there is no direct evidence. Consequently, we are of
the opinion that the retracted confession cannot be acted
upon to convict the accused of murder under Section
302 of Ranbir Penal Code, likewise, extra judicial
confession which is not corroborated by independent
evidence. We are of the opinion that the view taken by
the Court Martial for convicting the accused under
Section 302 of the Ranbir Penal Code cannot be
sustained. Consequently, we allow this appeal, set

TA 19 of 2010 25
aside the judgment of the Court Martial and confirmation
by the higher authorities and acquit accused of all the
charges. Consequently Writ Petition is allowed and
Court Martial orders are set aside. Petitioner may be
released forthwith, if not required in any other case.
______________________
Chairperson
_______________________
Member (A)
New Delhi
01st February, 2010

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Cause List WP(Civil)No. CASE No. CASE TITLE

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WP(Civil)No. CASE No. CASE TITLE

Armed Forces Tribunal.......(Principal Bench)

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WP(Civil)No. CASE No. CASE TITLE

Armed Forces Tribunal.......(Principal Bench)

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IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT

O.A. No. 62/2009

Ex Sgt Jitendra Kataria .........Applicant

Union of India & Others .......Respondents

For applicant: Mr.J.S. Mann, Advocate

1. Applicant by the present original application has

prayed that respondents may be directed to release remaining

retiral benefits such as individual running ledger account balance

and amount of leave encashment to him. It is also prayed that

respondents may be directed to pay interest @24% per annum

on the amount of DCRG (Rs.1,33,013), capitalized value of

pension (Rs.2,83,375/-) and on amount of leave encashment and

individual running ledger account balance.

2. The applicant after putting 20 years of service was

discharged on 31.10.2008 but he could not get his retiral benefits.

He protested and ultimately a PPO was issued on 03.08.2009

giving him retiral benefits in incomplete manner that means it took

almost one year for respondents to release his retiral benefits.

Thereafter, he filed this original application. Leave encashment

and other benefits were released on 12.02.2010, therefore, he

prays that for this kind of inordinate delay he should be

3. Learned counsel for the respondents has tried to

justify that the matter has been pursued at different levels,

4. We have been given to understand that normally in

benefits are released to him forthwith. But in the present case it

appears that it has taken inordinate delay in clearing the retiral

lend in the Court to get his retiral benefits. This is definitely a

serious harassment. Therefore, in these circumstances, we direct

that applicant is entitled to interest @ 12% from the date of his

retirement till he got the PPO on 03.08.2009 and he is also

entitled to the interest @ 12% on the balance payment which was

determined on 12.02.2010 like leave encashment etc. Authorities

should wake up and see that the incumbent whoever retires

caused. However, applicant is entitled to interest at the rate as

aforesaid and he is also entitled to cost of Rs.10,000/- for being

harassed for going pillar to post and resort to litigation.

5. The present original application is disposed of

accordingly with costs.

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT

T.A. No. 653/2009

Anil Kumar .........Petitioner

Union of India & Ors. .......Respondents

T.A. No. 665/2009

Ex Rect Ashok Ahlawat .........Petitioner

Union of India & Ors. .......Respondents

1. The both petitions have been transferred from Hon’ble

Delhi High Court to this Tribunal on its formation.

2. Both these two petitions involve identical question of

law, therefore, both are disposed of by the common order.

3. For convenient disposal of both petitions facts given in