In the case of Brijlal Kumar and ors. v. UOI and ors., Justice Asha Menon and Justice Rajiv Sahai Endlaw ruled that officers of defense forces who are non-commissioned are entitled to pro-rata pension, which was only given to commissioned officers.
There were a total of 40 petitions filed, the petitioners, in each petition, impugned the letter/circular No. 8(3)/86/A/D(Pension/Services) dated 19th February 1987 issued by the Ministry of Defence (MoD) and claimed pro-rata pension. The petitioners argued that exclusion from the benefit of pro-rata pension is of arbitrary nature and discriminatory, which violates fundamental rights given under articles 14, 19 and 21 of the Constitution.
Submissions Before the Court
Learned counsel for the petitioner contended that AFT was not entertaining challenges, reliance was placed on an order of AFT, principal bench, which held that challenges to circular could not be entertained by AFT under section 14 of AFT Act as it did not give the power of issuance of writ to the AFT.
Learned counsel for the respondents objected to the maintainability thereof for the reason of availability of alternate remedy before AFT (Armed Forces Tribunal). Reliance was placed on L. Chandra Kumar Vs. Union of India (1997) 3 SCC 261, to contend that AFT was empowered to test the vires of subordinate legislations and Rules.
The court made reference to All India Judges Association Vs. Union of India (1993) 4 SCC 288; State of Mizoram Vs. Mizoram Engineering Service Association (2004) 6 SCC 218 and State of Rajasthan Vs. Mahendra Nath Sharma (2015) 9 SCC 540 which held that the State cannot take a plea of financial burden to deny the legitimate dues and observed that rejection of representations made by petitioners, done by IAF before filing of these petitions for grant of pro-rata pension, were quashed and the court issued mandamus to respondent IAF.
The mandamus directed IAF to pay each petitioner pro-rata pensions within the duration of 12 weeks, from the date of discharge, till the date of payment. It was also directed that with effect from March 2021, IAF has to start payment of future pro-rata pension to each of the petitioners. If it is found that the arrears are not paid within 12 weeks, then said amount will be increased by 7% p.a. interest laid on it, from the expiry of twelve weeks, till the date of payment. Accordingly, the petitions were disposed of.
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