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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  1

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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,  

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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  

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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  

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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  

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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  

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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  

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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     

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