Smt Raj Kanwar wo Late Sep Lal Singh (Army) vs UOI & Others on 1 August 2025

1. 1. UOI, through the Secretary to the Govt of India, Ministry of Defence, New Delhi – 110 011

2. 2. The PCDA (P), Draupadi Ghat, Prayagraj, UP

3. 3. The OIC, Records The Kumaon Regiment, PIN 900 473, c/o 56 APO

**मन्त्रिसेव प्रचलन****.... Respondents****For Applicant****: Mr RS Bhadauria, Advocate****For Respondents****: Mr Pradeep Mathur, Advocate****CORAM:**

**HON'BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER (J) HON'BLE MR. SANJIV MITTAL, MEMBER (A)**


1. Under Section 14 of the Armed Forces Tribunal Act 2007, the applicant has filed this OA praying for directing the Respondents to quash and set aside the impugned order dated 16/5/2015, Annexure A/1 and any other order brought on records by the Respondents rejecting the claim of pension and that the deceased husband of the applicant be granted Mustering Out pension till his death on 28/12/1990 or regular pension, as the case may be, and, thereafter, the Applicant be granted Family Pension.

2. Brief facts of the case as enunciated by the applicant are that the husband of the applicant was enrolled in the State Force Indore Infantry on 06/6/1941 and was released in Class A on 04/7/1946 being surplus to the Establishment. He had rendered five years and 48 days of exemplary service. Thereafter, husband of the applicant was re-enrolled in the Kumaon Regiment on 01/4/1951 and from there he was discharged from service 04/5/1955 on becoming surplus to the Arcade, after rendering four years and 34 days of service in the second spell. The total combined service rendered by the husband of the applicant in both the spells works out to be nine years, two months and 21 days. Husband of the applicant was not granted any pension and he died a natural death on 28/12/1990. The applicant further submits that in terms of Regulation 316 of Pension Regulations for the Army 1940, that he was entitled for grant of mustering out pension. Also, in terms of Govt of India, Ministry of Defence letter dated 36/4/1951 service rendered ex State is to be counted double for the purpose of qualifying service for pension. The applicant after finding that similarly situated personnel have been granted pensionary benefits sent a Notice dated 15/1/2015 to IHQ of MoD (Army) calling upon them to release the relief. In response to the said petition, IHQ of MoD (Army) vide their letter dated 31/3/2015, the contents of which were intimated to the applicant by the Respondent No 3 vide their letter dated 16/5/2015 that the service documents in respect of the deceased husband of the applicant has been destroyed by burning during 1981 on expiry of its mandatory retention period and that the late husband of the applicant had rendered a total service of six years and 303 days only. Therefore, late husband of the applicant was not eligible for any kind of pension. It was also stated in the reply statement that the service rendered by the late husband of the applicant during world war II was not counted towards service pension. In response to the impugned Order dated 16/5/2015, Annexure A/1, the applicant submitted a petition dated 19/29-6-2015 wherein it was pointed out that as per their impugned Order the service of the deceased husband of the applicant in the State Force is shown two years and 270 days which is factually incorrect. As per discharge certificate issued by the OC Demobilization Centre (Indian) A Borne Force Training Unit), the service rendered with the State Force is shown to be five years and 48 days and given benefit of count of double service rendered with the unit during World War II would work out to be 10 years and 6 months which places the husband of the applicant in the bracket of pensionary service. After adding four years and 34 days service with the 15 Kumaon Regiment in the second spell, it would work out to be 14 years and 7 months. Either way, the deceased husband of the applicant was and is entitled to mustering out/service pension after condoning the shortfall of five months as per existing rules. If the husband of the applicant was eligible for mustering out/service pension, the applicant being a lawful wife becomes entitled to ordinary family pension as per existing rules. However, despite all out efforts, the applicant was not granted any relief entitled to her late husband. Having been aggrieved, the applicant has filed this OA, praying for relief.

3. Respondents have filed a detailed reply statement and at the outset submitted that the service documents of the late husband of the applicant have been destroyed in the year 1981 after stipulated period of its retention period, Annexure CA/1. However, as per details culled from the Long Roll, name of the Applicant has been mentioned as "**Raj Bai**" only as the wife of the deceased soldier. Further, husband of the applicant was enrolled in the Army on 01/4/1951 with two years and 270 days of former service allowed to count towards pension rendered with Madhya Bharat Force and was discharged from service on 04/5/1955 being surplus to the State including War Service for the period from 14/9/1952 to 15/9/1954. He was not granted any type of pension. Respondents further submit that though the late husband of the applicant had rendered his service during Second World War, but it is not counted as double service. Therefore, after counting of former service of two years and 270 days and Army service of four years and 33 days, thus the total service rendered by the late husband of the applicant comes to 6 years and 303 days. Since the late husband of the applicant had not rendered minimum qualifying service of 15 years of service, which is mandatory to earn minimum pension, he was not granted any pensionary benefits, nor the applicant has produced any documents which establishes that her husband was in receipt of any kind of pension at the time of his discharge/death. Respondents have further stated that as per Rule 316 and 318 (ix) of Pension Regulations for the Army 1940, Part II, Annexure R/II & III, Sepoys and those ranking as such were discharged on account of reduction of establishment and have rendered 10 years and over but under 15 years are entitled to mustering out pension. Since late husband of the applicant had rendered less than 10 years of service, he was not granted mustering out pension. In support of their arguments, the Respondents have placed reliance on the Order dated 28/3/2001 of the Hon'ble Delhi High Court in CWP No 1285/01 in the case of Smt Ashani Begum Vs UOI & Ors, in which it was held that, " where the service documents are not available and no steps were taken for a period extending 25 years, no relief for pension could be granted to the petitioner merely as a charity or bounty in the absence of relevant facts being determinable and relevant documents available:

4. During the course of hearing, counsel for the applicant has placed on record a copy of the Judgment passed by the Hon'ble Apex Court in the case of Smt Sajjan Kanwar Vs UOI & Ors, decided on 21/3/2005 as also Order dated 29/5/2013 passed by this Tribunal in OA No 298 of 2010 in the case of Smt Uchhab Kanwar, widow of late Shri Ladhu Singh, in support of his arguments.

5. We have heard the counsels for the parties and perused the material placed on record.

6. Perusal of record reveals that late husband of the applicant was enrolled in the Army on 01/4/1951 and was discharged from service on 04/5/1955 being surplus to the State. He had rendered four years and 33 days in the Army. Since his former service of two years and 270 days was allowed to be counted towards his previous service with the Madhya Bharat Force, thus, the total service rendered for both the spell of service rendered by the late husband of the applicant comes to an aggregate of 6 years and 303 days. Even if additional two years pus service on account of the War Service, as War Service period is counted as double, the total number of years rendered by the late husband of the applicant stands at eight years and 303 days only and not more than that as has been claimed by the Counsel for the Applicant. As regards grant of Mustering Out Pension, Para 316 of Pension Regulations for the Army, 1940, which was in force at that time, reads as follows :- *"316. Viseroy's Commissioned Officer and other Ranks of the Indian Army and similar rank holding combatant status in ancillary services, including Reservist.*

The Governor General may, at his discretion, sanction the grant of mustering out the pension and gratuity to the individuals of above categories in the following circumstances:-

- (a) Discharge on account of disbandment of a unit and consequent elimination of its reserve.

- (b) Discharge on account of reduction of establishment.

- (c) Discharge on becoming unsuitable for retention owing to change of class composition, provided that the individual cannot be absorbed in another unit.

- (d) In any other circumstances approved by the Governor General."


7. As far as grant of Mustering out Pensions and gratuities, Para 318 of Pension Regulations for the Army 1940, Part I, that stipulates qualifying service for grant of the same, reads as follows :-

318. Scale of Mustering out pensions and gratuities :- The following is the scale on which mustering out pension or gratuity may be sanctioned.

I – Other than the Indian Hospital Corps.

(i) to (viii) x x x x

(ix) Sepoys and those ranking as such – 10 years and over but under 15 Years, entitling lowest rate of Ordinary Pension admissible for their rank and grade 

यतो न्यायः ततो जयः

8. The Judgements relied upon by the Counsel for Applicant during the course of final hearing, and a copy each of which has been placed on record, have been perused. These Judgments reveal that these are distinctive and are of no relevance to the case of the applicant herein, in that, the Judgment of Hon'ble Apex Court in the case of Smt Sajjan Kanwar, her late husband had rendered an aggregate of 14 years, two months and 22 days for both the spell of his career in the Army. Also, the Order dated 29/5/2013 passed by this Tribunal in OA No 298 of 2010 in the case of Smt Uchhab Kanwar, her late husband had also rendered more than ten years of service.

Therefore, in both these cases, the Hon'ble Apex Court and this Tribunal had rightly granted relief of Mustering Out Pension to the applicants therein.

9. We also find that the Application stands barred by inordinate delay and laches of more than six decades with no cogent reason for the inexplicable delay and it does not deserve to be entertained on this count too. In view of the above and in the light of the principles laid down by Hon'ble Apex Court in the case of C. Jacob Vs. Director of Geology and Mining & Anr., reported in (2008) 10 SCC 115, wherein it was held that a stale claim cannot be revived. The case is also squarely covered by the judgment of the Hon'ble Apex Court in the case of UOI Vs Rajwanti, in Civil Appeal No 583-584 of 2017, decided on 16/1/2017.

सत्यमेव जयते

10. In fine, we find no merit in the OA.

11. The OA is dismissed accordingly. No order on costs.

12. Pending application, if any, also stands disposed off.

(SANJIV MITTAL) MEMBER (A)

cda/-

(GOVERDHAN BARDHAR) MEMBER (J)

यतो न्यायः ततो जयः