Ravindran. K (EX. NK-10358331 H) v Union of India; Rajan M (EX. NK-10289856 Y) v Union of India

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS ``` ## **`&`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945 WP(C) NO. 41863 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT OA 372/2017 OF ARMED FORCES ``` ``` TRIBUNAL,REGIONAL BENCH,KOCHI ``` ## **`PETITIONER/S:`** ``` RAVINDRAN. K (EX. NK-10358331 H), AGED 64 YEARS S/O.KRISHNAN NAIR, DSC RECORDS, KANNUR , RESIDING AT "SURYODAM", ALACHERY P.O., CHITTARIPARAMBA (VIA), KANNUR, PIN - 670650 BY ADVS. B.HARISH KUMAR ANJALY JOSEPH ``` ## **`RESPONDENT/S:`** ``` 1UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (DEFENCE), MINISTRY OF DEFENCE, NEW DELHI, PIN - 110011 2THE DEPUTY DIRECTOR GENERAL, DIRECTOR GENERAL DSC, GENERAL STAFF BRANCH INTEGRATED HQ OF MOD (ARMY) WEST BLOCK- III, R K PURAM, NEW DELHI-, PIN - 110066 3SENIOR RECORD OFFICER, DSC RECORDS, MILL ROAD, KANNUR, KERALA-, PIN - 670013 ``` ## **`OTHER PRESENT:`** ``` SRI. S.MANU-DSGI ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945 ``` ``` WP(C) NO. 41866 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENTOA 318/2018 OF ARMED FORCES ``` ``` TRIBUNAL,REGIONAL BENCH,KOCHI ``` ## **`PETITIONER/S:`** ``` RAJAN M (EX. NK-10289856 Y) AGED 61 YEARS DSC RECORDS, KANNUR, NOW RESIDING AT MEENOTH HOUSE, MALAPPATTAM P.O., TALIPARAMBA, KANNUR., PIN - 670631 BY ADVS. B.HARISH KUMAR ANJALY JOSEPH ``` ## **`RESPONDENT/S:`** ``` 1UNION OF INDIA SECRETARY TO GOVERNMENT (DEFENCE), MINISTRY OF DEFENCE, NEW DELHI-, PIN - 110011 2CHIEF RECORD OFFICER DSC RECORDS, MILL ROAD, KANNUR, KERALA, PIN - 670013 3THE DIRECTOR GENERAL CONTROLLER OF DEFENCE ACCOUNTS, (PENSION), ALLAHABAD, U.P, PIN - 210014 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. ================== ## WP(C) No.41863/2022 (Arising out of the order dated 18.08.2022 in OA No.372/2017, Armed Forces Tribunal, Regional Bench, Kochi) WP(C) 41866/ 2022 (Arising out of the order dated 1008.2022 in OA No.318/2018, Armed Forces Tribunal, Regional Bench, Kochi) ================== Dated this the 31[st] day of July, 2023 ## J U D G M E N T ## ALEXANDER THOMAS, J These writ petitions, viz, WP(C) No. 41863/ 2022 & WP(C) 41866/ 2022 are directed against the impugned final order dated 18.08.2022 in OA No.372/2017 and final order dated 10.08.2022 in OA No.318/2018 rendered by the Armed Forces Tribunal, Regional Bench, Kochi, respectively. 2. Heard Sri.B. Harish Kumar, learned Counsel appearing for the petitioners in these two cases and Sri.S.Manu, learned Deputy Solicitor General of India appearing for the respondents in these cases. 3. The prime argument raised by Sri.B.Harish Kumar, learned Counsel appearing for the petitioners is that the Kochi Bench of the Armed Forces Tribunal, while rendering the abovesaid impugned verdicts have completely ignored the binding verdict of the Armed Forces Tribunal, Principal Bench, New Delhi, which has been rendered as per order dated 25.07.2022 in MA WP(C) No.41863/2022 `&` WP(C) 41866/ 2022 - : 2 :- No.2063/2022 in OA No.1667/2020, wherein an almost similar and identical matter in the matter in the matter of claim for second service pension after condoning the short fall have been allowed by the Principal Bench of the Armed Forces Tribunal. Paragraph 44 of the abovesaid verdict of the Principal Bench of the Armed Forces Tribunal reads as follows: “(a) The aspect has been discussed in full detail in our discussion above on merits. It needs no further emphasis that the DSC is a part of the Army and is also treated as a "Corps" under Rule 187(1)(r) of the Army Rules, 1954, read with Section 3(vi) of the Army Act, 1950. Further the same pensionary provisions as applicable to the three defence services are applicable to the DSC and all such personnel taken together are referred as "Armed Forces Personnel" as becomes clear from the opening paragraphs of Letter No. 1(5)87/D(Pension/Services) dated 30.10.1987, Letter No. 1(6)/98D(Pension/Services) dated 03.02.1998, Letter No. 17(4)/2008(2)/D(Pen/Pol) dated 12.11.2008 and Para 3.1 of Letter No. 17(02)/2016-D(Pen/Pol) dated 04.09.2017 issued by the Ministry of Defence after the 4th, 5th, 6th and 7th Central Pay Commissions respectively. (b) The matter has already been decided by Constitutional Courts and this Tribunal and implemented by the Respondents, especially in the decision of the Hon'ble Punjab & Haryana High Court in Union of India v. LNK DSC Mani Ram LPA No. 755 of 2010decided on 05.07.2010), the Hon'ble Delhi High Court in ExSep Madan Singh v. Union of India (W.P(C) No. 9593 of 2003), this Bench in Bhani Devi v. Union of India and others(O.A No. 60 of 2013 decided on 07.11.2013) and the kochi Bench in Mohanan T v. Union of India(O.A No. 131 of 2017 decided on 12.10.2017). The letters purportedly amending the relevant provisions have also been held contrary to law vide the above. In light of this, coupled with the merits of the matter discussed in the instant judgment, there can be no scope of any doubt that DSC personnel are fully entitled to condonation of deficiency of service for their second spell of service at par with other Army personnel. In fact, as discussed in - the main body of this judgment, DSC personnel re enrolling themselves by opting not to count their past military service have WP(C) No.41863/2022 `&` WP(C) 41866/ 2022 - : 3 :- ## no connection at all with their past service as far as pension is concerned and their service in DSC is fresh service delinked from their past service. (emphasis supplied) (c) Further, the Respondents have themselves stated before the Hon'ble Supreme Court in Chatter Pal (supra) that condonation upto one year is possible, and once Constitutional Courts, including the highest Court of the land, have upheld the proposition, it is beyond the scope of any bench of this tribunal to hold or comment otherwise. We hence answer this question in the above terms.” 4. In a similar case, we have rendered judgment dated 07.07.2023 in WP(C) No.1862/2023, whereby the impugned 0rders of the Tribunal has been set aside and the OA has been restored to the Tribunal for fresh decision after hearing the parties and after taking due note of the abovesaid verdict of the Principal Bench of the Armed Forces Tribunal. Accordingly we would observe that the directions and orders passed by this Court in the judgment dated 07.07.2023 in WP(C) No.186/2023 will regulate this case as well. In the result it is ordered that Ext.P4 verdict of the Tribunal in OA No.372/2017 and OA No.318/2018 will stand set aside and the said OA will stand restored to the file of the Tribunal for fresh decision after hearing both sides and after taking note of the abovesaid verdict of the Principal Bench of the Armed Forces Tribunal and any other applicable case laws that governs the field. The contentions of the WP(C) No.41863/2022 `&` WP(C) 41866/ 2022 - : 4 :- petitioner based on Ext.P5 verdict of the Division Bench of the Tribunal should also be duly adverted to and considered by the Tribunal while rendering decisions on the above OAs after the remit. Further,we would request the Tribunal to consider the early hearing and disposal of the main matter in these two OAs without much delay, preferably within two months and if feasible, these two OAs may be heard along with OA No.88/2015 which is the subject matter of the judgment in WP(C) 18612/2023. The Registry will forward copies of the judgment in these WP(C)s to the Registry of the AFT, Regional Bench, Kochi for necessary information and appropriate direction. With these observations and directions, the above WP(C)s will stand disposed of. sd/- ALEXANDER THOMAS, JUDGE sd/C. JAYACHANDRAN, JUDGE Nsd ## **`APPENDIX OF WP(C) 41863/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A3`|`A TRUE COPY OF THE OFFICE ORDER DATED 07-11-`| ||`17 ISSUED BY THE THIRD RESPONDENT.`| |`Annexure A1`|`A TRUE COPY OF THE DISCHARGE CERTIFICATE`| ||`ISSUED BY THE 3RD RESPONDENT`| |`Annexure A2`|`A TRUE COPY OF THE DISCHARGE CERTIFICATE`| ||`DATED 19/9/14 ISSUED BY THE 3RD RESPONDENT.`| |`Annexure R1`|`A TRUE COPY OF PARA 6 OF PENSION REGULATION`| ||`FOR THE ARMY PART-I (2008).`| |`Annexure R2`|`A TRUE COPY OF THE ORDER OF THE ARMED FORCES`| ||`TRIBUNAL, REGIONAL BENCH KOCHI IN`| ||`O.A.NO.88/2015 DATED 17/10/2016.`| |`Annexure R3`|`A TRUE COPY OF THE PARA 23 OF THE PENSION`| ||`REGULATION FOR THE ARMY 2008 (PART-1)`| |`Exhibit P1`|`A TRUE COPY OF THE ORIGINAL APPLICATION NO.`| ||`372/2017 FILED BEFORE THE AFT, KOCHI AND`| ||`DELAY PETITION DATED 24/11/17.`| |`Exhibit P2`|`A TRUE COPY OF THE REPLY STATEMENT DATED`| ||`14/02/2018 FILED BY THE RESPONDENTS.`| |`Exhibit P3`|`A TRUE COPY OF THE REJOINDER FILED BY THE`| ||`PETITIONER DATED 3/11/2021`| |`Exhibit P4`|`A TRUE COPY OF THE ORDER DATED 18/08/2022 IN`| ||`O.A. NO. 372 OF 2017 PASSED BY THE ARMED`| ||`FORCES TRIBUNAL REGIONAL BENCH, KOCHI`| |`Exhibit P5`|`A TRUE COPY OF THE ORDER PASSED BY THE`| ||`HON'BLE PRINCIPLE BENCH, NEW DELHI IN O.A.`| ||`NO. 1660/2019 DATED 25/07/2022`| ## **`APPENDIX OF WP(C) 41866/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A3`|`A TRUE COPY OF THE OFFICE ORDER DATED 11-07-`| ||`18 ISSUED BY THE 2ND RESPONDENT.`| |`Annexure A1`|`A TRUE COPY OF THE DISCHARGE CERTIFICATE`| ||`ISSUED BY THE 2ND RESPONDENT.`| |`Annexure A2`|`A TRUE COPY OF THE REPRESENTATION DATED`| ||`21/06/2018 SUBMITTED BY THE APPLICANT`| |`Annexure R1`|`TRUE COPY OF THE JUDGMENT IN O.A 88/15`| |`Annexure R2`|`TRUE COPY OF THE LETTER OF THE MINISTRY OF`| ||`DEFENCE DATED 20/6/2017`| |`Exhibit P1`|`A TRUE COPY OF ORIGINAL APPLICATION O.A. NO.`| ||`318/2018 DATED 24/07/18 FILED BY THE`| ||`PETITIONER BEFORE THE AFT, KOCHI.`| |`Exhibit P2`|`A TRUE COPY OF THE REPLY STATEMENT DATED`| ||`30/11/2018 FILED BY THE RESPONDENTS.`| |`Exhibit P3`|`A TRUE COPY OF THE REJOINDER FILED BY THE`| ||`PETITIONER DATED 24/06/22`| |`Exhibit P4`|`A TRUE COPY OF THE ORDER DATED 10/08/22 IN`| ||`O.A. NO.318 OF 2018 PASSED BY THE ARMED`| ||`FORCES TRIBUNAL REGIONAL BENCH, KOCHI`| |`Exhibit P5`|`A TRUE COPY OF THE ORDER PASSED BY THE`| ||`HON'BLE PRINCIPLE BENCH, NEW DELHI IN O.A.`| ||`NO. 1660/2019 DATED 25/07/2022.`|