Supreme Court - Daily Orders

Santosh Devi vs Union Of India . on 6 May, 2016

Author:
R. Banumathi

Bench:
R. Banumathi
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4853 OF 2016
(Arising out of SLP (C) No.27545 of 2011)

SANTOSH DEVI ...Appellant

Versus

UNION OF INDIA & ORS. ...Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal is preferred against the judgment dated

13.05.2011 passed by the Armed Forces Tribunal, Chandigarh in T.A.

No.242 of 2009 dismissing the application filed by the appellant

seeking family pension for the death of her husband Ex. Sepoy Raj

Singh.

3. Undisputed facts of the case are as follows:- Raj Singh was

enrolled in the 103 Infantry Battalion (Territorial Army) on

17.05.1995. He was disembodied from service with effect from

31.03.2008 under Rule 20 of the Territorial Army Rules, 1948 and

during disembodiment Raj Singh died at his home on 04.08.2008 due

Signature Not Verified

Digitally signed by

Mahabir Singh

Date: 2016.05.07

10:12:13 IST

to heart attack. Raj Singh rendered a total service of eleven years and

Reason:

two hundred eighty nine days. The family pension was denied to the

appellant vide letter dated 12.12.2008 stating that as per the existing
rules, territorial army personnel who died during disembodied state

without completing fifteen years of embodied service are not entitled

for service pension. The appellant, being the wife of the deceased,

served a legal notice upon the respondents on 05.01.2009 for release

of death-cum-retirement gratuity, service gratuity and family pension.

The department issued a demand draft dated 21.10.2009 for

Rs.1,82,448/- in favour of the appellant on account of service gratuity

and death-cum-retirement gratuity. Aggrieved thereof, appellant

preferred Writ Petition No.16566 of 2009 seeking direction against the

respondents to release the family pension. Upon constitution of Armed

Forces Tribunal, Chandigarh, the writ petition was transferred to the

Armed Forces Tribunal, Chandigarh and renumbered as T.A. No.242

of 2009 before the Tribunal.

4. The Tribunal vide impugned order dated 13.05.2011

dismissed the application inter alia holding that, Raj Singh did not

have the requisite minimum qualifying embodied service of fifteen

years to earn service pension, and hence upon his death while he was

in disembodied state, the appellant was not entitled to family pension.

The tribunal held that persons in territorial army cannot at all times

be treated on par with the army personnel, the territorial army

personnel while in disembodied state does not stand on the same

footing as compared to regular army personnel and thus held that the

appellant was not entitled to family pension. Contention of the

appellant that denial of family pension to ‘next of kin’ of territorial
army personnel who died in harness while in disembodied state is

discriminatory and violative of
Article 14
of the Constitution of India,

was held untenable.

5. Relying upon Regulation 289 of the Pension Regulation for

Army (Part-I) 1961 Edition, Mr. Naresh Kumar learned counsel for the

appellant has contended that the Pension Regulation for Army 1961

apply to the regular army personnel as well as to the personnel of

territorial army in certain contingencies. Learned counsel for the

appellant therefore, submitted that, denial of family pension to the

appellant when her husband admittedly died in harness is not

justified when such a benefit is extended to the widow of a regular

army personnel who died in harness. The Government circular dated

11.06.1985, especially paragraph 3(ii) thereof, read with subsequent

circulars dated 30.10.1987, 03.02.1998 and 12.11.2008 was also

pressed into service by the counsel for the appellant to substantiate

his argument. It was contended that there is no statutory rule

denying family pension to Territorial Army personnel dying at home

and since the territorial army reservists during disembodied state are

liable to be called at any time, failure of which is treated as absence

without leave, denial of family pension in the event of Territorial Army

personnel dying natural death during disembodied state would be

arbitrary and discriminatory. Reliance was also placed upon

judgments of various High Courts and tribunals.

6. Mr. Balasubramanian, learned counsel appearing for
Union of India at the outset fairly submitted that the Pension

Regulations for the army govern the entitlement to various types of

pensions including, family pension to family of deceased regular army

personnel, as well as to family of deceased personnel of the territorial

army, read with various circulars that are issued by the Government

of India from time to time. But it was strenuously canvassed before

us by the learned counsel for the Union of India that, in the case of

family pension to the family of deceased personnel of the Territorial

Army, the entitlement has to flow either from the fact that the

deceased soldier had put in minimum qualifying embodied service of

fifteen years, and thus had become entitled to service pension, in

which case the family pension gets granted to the widow or other

eligible person(s) as per rules, or alternatively, the deceased ought to

have died in harness when he was in an embodied state i.e., while he

was on active duty having been called out or attached to any part of

the regular army. Conversely, it was argued that if the death had

occurred when the deceased was in a disembodied state, and if the

deceased individual had not put in minimum period of qualifying

service of fifteen years, then the entitlement to family pension arising

out of death in harness would not arise. In this regard the counsel for

the Union of India drew our attention to Pension Regulations for the

Army, Part-I (2008) which has superseded the Pension Regulations for

the Army 1961 with effect from 01.07.2008. Our attention was

especially drawn to Section 2 titled ‘Ordinary Family Pension’
Regulation 62, which inter alia lays down that, the regulations shall

not apply to the members of the Territorial Army other than those who

die while rendering ‘embodied service’ or after retirement with pension

under the said Regulations.

7. We have considered the rival submissions and also perused

the impugned order & materials placed on record.

8. The distinctive features of Territorial Army and regular

army are significant in the present case. As per Army Order

77/1984, the Territorial Army is a part of the regular Indian Army.

The role of Territorial Army is to relieve the regular army from static

duties, assist civil administration in dealing with natural calamities

and maintenance of essential services in situations where life of the

communities is affected or the security of the country is threatened,

and to provide units for the regular army as and when required. As

explicit in the Statement of objects and reasons of the
Territorial Army

Act, 1948
, the role of the Territorial Army is:-

(a) to provide a second line to and a source of reinforcement for
the regular army;

(b) to assist in internal defence duties in a national emergency;

(c) to be responsible for anti aircraft and coastal defence; and

(d) to give the youth of India an opportunity of training
themselves to defend their country.

9.
Section 4
of the Act provides that the personnel of the

Territorial Army comprise of two classes–(a) officers and (b) enrolled

persons. As per
Section 6
, any person who is a citizen of India may
offer himself for enrolment and may if he satisfies the prescribed

conditions, be enrolled for such period and subject to such conditions

as may be prescribed. According to
Section 6A
, every person

employed under the government in a public utility service who is

between the age group of 20-40 years, subject to other provisions and

rules, is liable, when so required, to perform service under the

territorial army.
Section 7
provides for liability for military service.

Section 7A
casts a duty on every employer by whom a person who is

required to perform military service under
Section 7
was employed, to

re-instate him in his employment on termination of military service in

an occupation and under conditions not less favourable than those

which would have been applicable to him at his employment. As per

Section 9
, every officer while rendering service as such officer and

every enrolled person when called out, or embodied, or attached to the

regular army shall, subject to suitable adaptation, be subject to the

provisions of the
Army Act
and the Rules or Regulations made

thereunder. In terms of
Section 14(2)(b)
of Territorial Army Act,

Central Government is empowered to make rules prescribing the

manner in which, the period for which, and the conditions subject to

which any person may be enrolled under the Act or may be required to

perform compulsory service in the Territorial Army.

10. The terms and conditions of service of personnel belonging

to the regular Indian Army and the personnel belonging to Territorial

Army are governed by two different Acts. The former is governed by
Army Act
1950 while the latter is governed by the
Territorial Army Act

1948. It is implicit in
Section 9
of the Territorial Army Act that when

the person enrolled in the Territorial Army is not called out during

that period of disembodied state, he is not subjected to the provisions

of the
Army Act
. It is thus clear from the statutory scheme that a fine

distinction is made between regular army personnel and personnel

enrolled in territorial army. Further distinction has to be made

between the Territorial Army personnel who are embodied and those

who are in disembodied state. It is only when the Territorial Army

personnel get embodied, which means that when they are called out

or attached to any portion of the regular army for active duty, that the

provisions of
Army Act
1950 are applied to the Territorial Army

personnel. When the Territorial Army personnel are in a disembodied

state i.e., when they are not called out or attached to any portion of

the regular army for active duty, then the
Territorial Army Act
governs the service conditions and this is the statutory scheme.

11. The only question falling for consideration is whether in the

facts and circumstances of the case, the appellant is entitled to family

pension and whether denial of family pension to the appellant is

justified. It is the admitted position that late Sepoy Raj Singh was

enrolled in the territorial army on 17.05.1995 and he died on

04.08.2008 due to heart attack in his village. It is also admitted by

both parties that Raj Singh had been disembodied on 31.03.2008 and

that Raj Singh died while he was in disembodied state from the
Territorial Army.

12. Learned counsel for the appellant laid emphasis upon

Regulation 289 of the Pension Regulations for Army (Part I) 1961 Edn.

to contend that members of the Territorial Army shall be governed by

the same regulations as applicable to the army personnel. Pension

Regulation 289 reads as under:-

“289. The grant of pensionary award to the members of
the Territorial Army shall be governed by the same
general regulations as applicable to the corresponding
personnel of the Army except where they are inconsistent
with the provisions of Regulations in this Chapter.”

13. A plain reading of the aforesaid provision makes it clear

that the grant of pension award to personnel of the Territorial Army is

governed by same general pension regulation as applicable to regular

army personnel except wherever it is dealt with differently in the said

regulations. Therefore, unless an exception has been carved out in

the case of personnel of the Territorial Army, the Pension Regulations

for the Army 1961 would govern the field in the matter of grant of

various pensionary awards. This is made further clear from

paragraph 3 (ii) of Government of India, Ministry of Defence Circular

No.68699/221/GSITA-3(a)/1131/B/D(GS-VI) dated 11 th June 1985

which reads as under:-

“3.(ii).Death-cum-retirement-Gratuity and ordinary Family
Pension will be admissible, as applicable to the Regular
Army.”

This has also been further reiterated in the circulars dated 03.02.1998

and 12.11.2008 issued by the Government of India, Ministry of
Defence which are made applicable to the Territorial Army amongst

others.

14. Plea urged by the appellant was that while the wife of a

regular army soldier, who dies in harness is entitled to family pension

even if the deceased soldier had not put in the minimum qualifying

service to earn service pension, the same is denied to wife of a

deceased Territorial Army soldier on a specious plea that the deceased

soldier was in disembodied state when the death took place. This

according to the appellant is discriminatory. By elaborate reasoning,

the tribunal held that a regular army person and a person enrolled in

the Territorial Army are governed by different set of terms and

conditions of service. They are not similarly situated and therefore

they do not form part of the same class in the matter of grant of

service benefits and hence, there cannot be a violation of
Article 14
of

the Constitution of India. We concur with the view taken by the

tribunal. It is therefore not necessary for us to refer to number of

judgments relied upon by the learned counsel for the appellant as

those cases were determined in the light of facts and circumstances of

those cases.

15. No doubt, with effect from 01.07.2008, new Pension

Regulations for the Army 2008 have come into operation superseding

the earlier one. In Section 2-Ordinary Family Pension of the new

Regulation of 2008, Regulation 62 lays down that the regulations shall

not apply to members of the Territorial Army other than those who
died while rendering embodied service or after retirement with pension

under these regulations. Learned counsel for the Union of India laid

emphasis upon the Pension Regulations for the Army 2008 to contend

that, as Raj Singh died while in disembodied state, appellant-wife was

not entitled to family pension. In the preface of the said regulations

issued by the Government of India, Ministry of Defence dated

01.07.2008, it is specifically mentioned that it is applicable to army

personnel who are in service as on 01.07.2008. In the present case, it

is an admitted position that the deceased-Raj Singh was disembodied

on 31.03.2008 much before the new regulations came into effect.

Therefore, he was not in service on 01.07.2008 and hence new

regulations cannot be pressed into service. The new regulations are

applicable only to those who were in service as on 01.07.2008 or

thereafter. Therefore, the claim of the appellant cannot be tested on

the new Pension Regulations for the Army 2008.

16. Having said that, we are of the view that the entitlement of

the appellant to family pension has to be examined in the light of the

provisions of the Pension Regulations for the Army 1961 read with

Government of India, Ministry of Defence circulars dated 11.06.1985,

03.02.1998 and lastly circular dated 12.11.2008. As discussed

earlier, in terms of
Section 9
, every officer/ enrolled person when

called out or embodied or attached to the regular army shall, subject

to suitable adaptation, be subject to the provisions of the
Army Act

1950 and the rules and regulations made thereunder. When an
enrolled person is in disembodied state, he is not subject to the
Army

Act
and is not entitled to pay and allowances or other entitlement as

also medical allied benefits. Also their disembodiment period is not

counted as a qualifying service even for service pension. As per the

existing rules, no family pension is payable to the legal heir of a

territorial army personnel who died during disembodied state and who

has not put in pensionable service.

17. As per the rules, no family pension is payable to the legal

heir of a territorial army personnel who died during disembodied state

and who has not put in pensionable service. Contention of

respondents that admissibility of such a relief would be contrary to

the rules in force has led to a patent anomaly. Such anomaly was

pointed out by Major, Addl. Offr./TA-3, TA DTE, GS Branch in his

inputs for VI Pay Commission dated 09.03.2007 (Annexure P-8)

thereby recommending to do the needful to render fair treatment to

Territorial Army personnel. We deem it appropriate to reproduce it as

under:-

“GRANT OF FAMILY PENSION TO NoK OF TA PERS
WHO THOUGH IN SERVICE BUT DIES DURING
DISEMBODIED STATE.

4. Anomaly is:-

(i) Person ‘A’ is in embodied state for the last 10 years, he
gets disembodied today and dies tomorrow, in such case
NoK is not being granted ordinary family pensions.

(ii) Person ‘B’ is in disembodied state for the last 10
years, he gets embodied today and dies tomorrow. In this
case NoK is being granted ordinary family pension.

Note: Point to be noted is both indls are in service and
have not been discharged from service.

18. In response to the above communication relied upon by the
appellant, Mr. Balasubramanian, learned counsel appearing for the

respondents has drawn our attention to the comments on ‘General

Staff Branch’ dated 09.03.2007 (Annexure R-1 series). After referring

to the aforesaid recommendation of Additional Officer/TA-3, TA Dte,

GS Branch it was observed as under:-

“(ae) In view of the above case, though has been referred to
me CGOA to issue instructions to PCDA (Allahabad) to
entertain ordinary family pension to NoK of pers dying
during disembodied state. The same is still under
consideration with CGDA.

(af) It is recommended that the issue be addressed in
recommendations of 6th
CPC
to remove the anomaly for
which no orders to the effect exist.”

Even though the above anomalies have been taken note of by the

concerned authorities, the respondents have not so far taken any

decision to rectify the anomalies to give fair treatment to the

Territorial Army personnel by granting family pension to ‘next of kin’

of Territorial Army personnel who die while in disembodied state.

Territorial Army personnel actually remain on rolls till they are retired

from service and as noticed earlier, they are liable to be called out for

military service at any time. During disembodiment, Territorial Army

personnel wait in reserve. It was contended by the learned counsel for

the appellant that when gratuity and other benefits are paid to the

territorial army personnel dying during disembodied service as a

death in harness, they should also be eligible for service pension.

Learned counsel for the appellant has drawn our attention to Ministry

of Defence Report (Declassified on 18.02.2016) of the Committee of
Experts constituted for Reduction of Litigation, Review of Service &

Pension Matters 2015:-

“Report Page 223, 8th line: …We also find that widows/families of
TA personnel dying in harness but during the period of
‘disembodiment, (demobilized state) are not granted Ordinary
Family Pension. We feel that this issue may be considered
favourably since such pers remain on the strength of the TA and
also on the rolls of their unit while on disembodied state. If the
families of regular military pers who die due to non-service related
causes or while on leave or while on furlough are entitled to
Ordinary Family Pension, then by same logic even families of TA
pers should not be refused the same.”

Inspite of repeated recommendations, it is not known why steps are

not being taken to remove the anomalies to pay family pension to

‘next of kin’ of Territorial Army personnel who rendered long service in

Territorial Army and died while in disembodied state. We hope that

the Union of India considers the issue favourably to remove the

anomalies to pay appropriate family pension to next of kin of

Territorial Army personnel who die while in disembodied state by

giving due weightage to their embodied service.

19. On behalf of the appellant, it was submitted that Raj Singh

had unblemish service record and had rendered a total service of

about twelve years in Territorial Army (11 years and 289 days)

including service in operational area. For quite sometime, the

appellant has been pursuing the litigation seeking family pension.

Considering the peculiar facts and circumstances of the case and the

plight of the appellant, in the interest of justice and in exercise of our

power under
Article 142
of the Constitution of India, we deem it

appropriate to award ex-gratia grant of rupees ten lakhs payable to
the appellant.

20. The impugned order of the tribunal is accordingly modified

with the direction that the respondents shall pay an ex-gratia amount

of rupees ten lakhs to the appellant within a period of three months

from today.

21. The appeal is accordingly disposed of. No costs.

…………………….CJI.

(T.S. THAKUR)

……………………….J.
(R. BANUMATHI)
New Delhi;

May 06, 2016
ITEM NO.1A COURT NO.1 SECTION XVII
(For Judgment)

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Civil Appeal NO.4853 of 2016

(Arising out of S.L.P.(C) No(s).27545 of 2011)

SANTOSH DEVI Appellant(s)
VERSUS

UNION OF INDIA & ORS. Respondent(s)

Date : 06/05/2016 This matter was called on for judgment today.

For Appellant(s) Mr. Naresh Kumar,Adv.

For Respondent(s) Mr. B. V. Balaram Das,Adv.

Hon'ble Mrs. Justice R. Banumathi pronounced the judgment
of the Bench comprising Hon'ble the Chief Justice of India and
Hon'ble Mrs. Justice R. Banumathi.

Leave granted.

In terms of the signed judgment, this appeal is disposed
of:

“19.....Considering the peculiar facts and
circumstances of the case and the plight of the
appellant, in the interest of justice and in
exercise of our power under
Article 142
of the
Constitution of India, we deem it appropriate to
award ex-gratia grant of rupees ten lakhs payable
to the appellant.

20. The impugned order of the tribunal is
accordingly modified with the direction that the
respondents shall pay an ex-gratia amount of rupees
ten lakhs to the appellant within a period of three
months from today.

21. The appeal is accordingly disposed of. No
costs.”

(MAHABIR SINGH) (VEENA KHERA)
COURT MASTER COURT MASTER
(Signed Reportable Judgment is placed on the file)