Cdr Ak Srivastava (Retired) vs Union Of India And Ors.
- Court
- Delhi High Court
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 28 October, 2026
# CNR No. DLHC010349472026
+ W.P.(C) 10863/2026
CDR AK SRIVASTAVA (RETIRED) .....Petitioner
Through: Mr. K.R. Verma, Advocate.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Dr. Vijendra Singh Mahndiyan,
CGSC with Mr. Krishna Chaitariya, GP with Mr.
Vaibhav Singh, Advocates for UoI.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
HON'BLE MR. JUSTICE GURVINDER PAL SINGH
JUDGEMENT
JYOTI SINGH, J. (ORAL)
1. This writ petition is filed on behalf of the Petitioner under Article 226
of the Constitution of India laying challenge to impugned order dated
27.02.2023 in OA 1483/2021 and order dated 30.03.2026 in RA.31/2025
passed by the Armed Forces Tribunal, Principal Bench (Tribunal) to the
extent arrears of disability pension have been restricted to three years from
the date of filing OA 1483/2021.
2. Case of the Petitioner as pleaded in the writ petition is that Petitioner
was enrolled in Indian Navy on 06.07.1981 as Sailor (MER) and was
medically fit in SHAPE-1 at that stage. The Release Medical Board (RMB)
held on 14.09.2017, diagnosed the Petitioner with ‘Primary Hypertension’
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and assessed the disability at 30% for life. Claim of the Petitioner for grant
of disability pension was rejected by the Respondents on 12.12.2019 and
first appeal dated 31.12.2019 and second appeal dated 16.10.2020 also
suffered the same fate and were rejected vide orders dated 06.10.2020 and
07.06.2021, respectively, which led to filing of OA.1483/2021.
3. It is stated that vide judgment dated 27.02.2023, Tribunal partially
allowed the OA, directing Respondents to grant disability element of
pension @ 30% for life for ‘Primary Hypertension’, rounded off to 50%,
applying the judgments of the Supreme Court in Dharamvir Singh v. Union
of India and Others, (2013) 7 SCC 316 and Union of India and Ors. v.
Ram Avtar, 2014 SCC OnLine SC 1761, however, the arrears were
restricted to three years prior to the date of filing of OA i.e., 09.07.2021.
Petitioner filed review application being RA.31/2025 seeking modification
of paragraph 11 of judgment dated 27.02.2023, wherein arrears were
restricted to three years, contending that there was an error apparent on the
face of the record as there was no delay on the part of Petitioner in
approaching the Tribunal. RA was dismissed vide order dated 30.03.2026 by
the Tribunal on the ground that the review was filed after inordinate delay of
885 days without any satisfactory explanation for the delay as also for the
reason that during execution of the judgment, Petitioner received the
payment in consonance with the judgement and matter had attained finality
and hence, review cannot be used as a tool to re-argue the case or even to
correct an erroneous decision on merits, if any.
4. Learned counsel for the Petitioner submits that there is an error in the
judgment dated 27.02.2023 to the extent arrears of disability pension granted
in favour of Petitioner have been restricted to three years prior to the date of
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filing OA on 09.07.2021, inasmuch as arrears can be restricted only if a
party approaches the Court belatedly, whereas in the present case there was
no delay on part of the Petitioner. Taking the Court through the chronology
of dates and events, counsel submits that Petitioner retired on 31.01.2018 in
Low Medical Category (LMC) with disability ‘Primary Hypertension’ and
submitted his claim for disability pension on 18.07.2019, which was rejected
by the Respondents on 12.12.2019. First appeal was filed by the Petitioner
on 31.12.2019, which was rejected on 06.10.2020 and second appeal was
filed within ten days on 16.10.2020, which was rejected on 07.06.2021. In a
little over one month, Petitioner filed OA.1483/2021 before the Tribunal on
09.07.2021 and hence, there was no delay, entailing the arrears to be
restricted to three years prior to filing of OA. Petitioner filed RA bringing
forth the error apparent on record and substantiating it with dates of
rejection of the appeals and date of filing the OA. However, Review
Application was dismissed erroneously on ground of delay of 885 days and
acceptance of payment as per the judgement in OA, without appreciating
that neither of the two grounds could come in the way of the Petitioner from
enforcing his legitimate rights and seeking correction of an error in the
judgement, which was apparent.
5. Counsel for the Respondents, on the other hand, submits that there is
no legal infirmity in the impugned judgement/order. Petitioner had
approached the Respondents belatedly after he retired and Respondents
cannot be blamed for any delay in deciding his representation or appeals.
Looking at the facts of this case, Tribunal has correctly restricted the arrears
and even RA has been dismissed rightly on both counts i.e., inordinate delay
in filing the review application as also estoppel, since Petitioner had earlier
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accepted the payment with arrears restricted to three years, without any
protest or demur.
6. We have heard learned counsels for the parties and examined their
rival submissions.
7. Perusal of judgment dated 27.02.2023 in OA.1483/2021 shows that
the Tribunal granted disability pension to the Petitioner holding that if any
disease is contracted by member of the Force during service, it will be
presumed to be attributable to military service if there is no record of any
pre-existing ailment at the time of commission/enrolment in service and this
relief was based on the law laid down by the Supreme Court in Dharamvir
Singh (supra) . However, for some ‘unknown’ reason and we say so since no
reason has been given in the judgement, the Tribunal in paragraph 11
restricted the arrears to three years prior to filing of OA on 09.07.2021. It is
trite that belated service related claims are normally rejected on ground of
delay and laches but one of the exceptions carved out to the said rule, as
held by the Supreme Court in Union of India and Others v. Tarsem Singh,
(2008) 8 SCC 648, is in cases relating to continuing wrong. The Supreme
Court held in the said judgment that if the grievance relates to an order or
administrative decision, which affects other parties and if re-opening of the
issue affects settled rights of others, then the claim will not be entertained,
such as in cases involving seniority or promotion disputes etc., where third
parties may be affected. However, if the issues relate to re-fixation of pay or
pension or payment of salary and allowances etc., relief may be granted in
spite of delay as it does not affect rights of third parties albeit the
consequential relief of recovery of arrears for the past period will be
restricted normally to a period of three years prior to the date of filing the
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writ petition. Clearly, the law of restricting arrears to three years applies to
cases where the party approaches the Court belatedly and delay is inordinate
and unexplained. Unfortunately, Tribunal has applied this law to the present
case completely oblivious of the fact that there was absolutely no delay in
filing the OA. The second appeal filed by the Petitioner, which was a
remedy available to him, was rejected only on 07.06.2021 and OA was filed
on 09.07.2021 i.e., nearly within over a month.
8. To this extent, the impugned judgment in OA reflects complete non-
application of mind by the Tribunal as also misapplication of law laid down
by the Supreme Court in Tarsem Singh (supra), besides the fact, as noted
above, the judgement is totally bereft of any reasoning on this aspect. We
are at complete loss to understand why the arrears have been restricted to
three years and under what law. What pains us is that when the Petitioner
filed RA.31/2025, bringing to the notice of the Tribunal the error apparent
on the face of the record, giving a tabular chart of list of dates and events,
which reflected that there was no delay in filing the OA, the same was
dismissed on delay as also on the ground that having accepted the payment,
Petitioner could not reargue the case. In our view, the review petition ought
to have been entertained by the Tribunal, once the grave error on the face of
the record was brought to its notice.
9. Petitioner explains that after the judgement was pronounced in OA, he
filed an application for execution being MA 4258/2023 on 05.10.2023, in
which notice was issued to the Respondents on 20.08.2024 to comply with
judgment dated 27.02.2023. Respondents preferred W.P.(C) No.15493/2024
in this Court, which was dismissed on 12.11.2024, whereafter the Tribunal
vide order dated 12.12.2024 granted four weeks’ time to comply with the
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judgment or face coercive action and faced with this, Respondents complied
with the judgment and made payment of Rs. 34,16,274/- vide PPO dated
08.04.2025. It is after this that Petitioner filed an application being MA
2298/2025 for clarification of the judgment, which was withdrawn on
26.05.2025, with liberty to file review application. It is thus apparent that
after having got a favorable judgement in his favor, in respect of grant of
disability pension, Petitioner was embroiled in litigation, owing to the
Respondents challenging the judgment in this Court as also seeking
execution and the moment the PPO was issued, Petitioner took steps to
enforce his right in law to receive complete arrears without any limitation of
three years. In our view, neither the delay nor the acceptance of part
payment that was made to the Petitioner, could come in his way to seek what
was legitimately due to him. Tribunal ought to have entertained the review
application and corrected the error, considering that restriction of arrears to
three years in the given facts, was in teeth of the law laid down by the
Supreme Court. Wrongful dismissal of RA has compelled the Petitioner to
once again take recourse to litigation, which is rather unfortunate.
10. For all the aforesaid reasons, impugned judgment dated 27.02.2023
cannot be sustained to the extent the arrears of disability pension have been
restricted to three years prior to filing the OA. Impugned order dated
30.03.2026 in RA.31/2025 is completely untenable in law as the Tribunal
has failed in correcting the error apparent on the face of the record in its
judgment. The impugned judgment dated 27.02.2023 in OA.1483/2021 is set
aside to the extent the arrears have been restricted and impugned order dated
30.03.2026 in RA.31/2025 is also set aside. Respondents are directed to
release the arrears of disability pension due to the Petitioner from
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31.01.2018, the day he retired from service. The needful shall be done
within three months from today, failing which Respondents shall pay
interest @ 6% p.a., till actual payment.
11. Writ petition stands disposed of in the aforesaid terms.
JYOTI SINGH, J
GURVINDER PAL SINGH, J
OCTOBER 28, 2026/YA
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