Santosh Devi Vs. Union of India & Ors, on 6th May 2016, Supreme Court of India

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

J U D G M E N T

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

(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 1948 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 11th 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