UNION OF INDIA vs NO. 618569S EX MWO PREM SINGH GURJAR
- Court
- Rajasthan High Court
[2026:RJ-JD:26388-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 24718/2025
1. Union Of India, Through Its Secretary To The Government
of India, Ministry of Defence, New Delhi 110011.
2. The Chief of Air Staff, Air Head Quarter, New Delhi
110106.
3. Air Head Quarter, DTE of Air Veterns, (Afro) Subroto Park,
New Delhi- 10.
4. Office of Deputy Controller, Of Defence Accounts (Air
Force) Subroto Park, New Delhi- 10.
----Petitioners
Versus
No. 618569S Ex Mwo Prem Singh Gurjar S/o Late Shri Narayan
Singh Gurjar, R/o Vpo Plot No.58A, Ramdev Colony, Old Bhagat
Ki Kothi, Jodhpur (Raj) 342005.
----Respondent
For Petitioner(s) : Mr. Tirupati Chandra with
Mr. Satish Kumar Trivedi, Warrant
Officer.
For Respondent(s) : Mr. Dharampal Singh Dhaka.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE DR. JUSTICE NUPUR BHATI
J U D G M E N T
Reserved on : 11/05/2026
Pronounced on : / 06 16 /2026
Reportable
Per Hon’ble Dr. Justice Nupur Bhati:
1. The instant writ petition has been filed under Articles 226
and 227 of the Constitution of India claiming the following
relief(s):
“(i) The impugned order dated 28.2.2024 (Annex-3) and order
dated 27.9.2024 (Annex-5) may kindly be quashed and set aside.
(ii) Any other appropriate writ, order or direction which this
Hon'ble Court may deem just and proper in the facts and
circumstances of the case may kindly be passed in favour of the
petitioners.”
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2. Brief facts, in a nutshell, are that the respondent-applicant
filed Original Application No.565/2021 before the Armed Forces
Tribunal (hereinafter referred to as “AFT”) seeking issuance of
appropriate directions to the respondents for determination and
sanction of service pension in the rank of Master Warrant Officer
(hereinafter referred to as “MWO”) with effect from 01.12.2002,
instead of pension in the rank of Warrant Officer (hereinafter
referred to as “WO”), along with all consequential revisions and
arrears. The respondent-applicant asserted before the learned
Tribunal that he had last served in the rank of MWO and,
therefore, was entitled to pensionary benefits corresponding to the
said rank from the date of his discharge from service. Upon notice,
the present petitioners submitted a detailed reply under Section
14 of the AFT Act, 2007 contesting the claim raised by the
respondent-applicant and opposing the grant of pension in the
higher rank. After hearing the parties, the learned Tribunal vide
order dated 28.02.2024 allowed the Original Application and
directed the respondents therein to determine and sanction
pension of the applicant as per the last rank held by him, namely
MWO, with effect from 01.12.2002, being the date of his discharge
from service. The Tribunal further directed issuance of a
Corrigendum PPO and payment of consequential arrears within a
period of six months from the date of receipt of a certified copy of
the order, failing which the amount was directed to carry interest
@ 6% per annum till actual payment. Aggrieved thereby, the
present petitioners preferred Misc. Application Nos.356/2024 and
357/2024 seeking modification of the order dated 28.02.2024 by
contending, inter alia, that the controversy relating to pension
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based upon the last rank held stood settled in light of the decision
rendered in JWO Gopal Krishanan by the AFT and further that in
view of the law laid down by the Supreme Court of India in Union
of India & Ors. v. Tarsem Singh decided on 13.08.2008, arrears in
delayed service matters were liable to be restricted to a period of
three years preceding the filing of the Original Application.
Reliance was also placed upon various decisions rendered by
different Benches of the AFT in support of the said contention.
However, the learned Tribunal vide order dated 27.09.2024
dismissed the aforesaid miscellaneous applications, whereafter the
petitioners, being dissatisfied and aggrieved by the orders dated
28.02.2024 and 27.09.2024, have preferred the present writ
petition before this Court.
3. Learned counsel for the petitioners submitted that the
impugned order dated 28.02.2024 passed by the AFT is contrary
to the statutory pension regulations applicable to Air Force
personnel and therefore deserves to be quashed and set aside. It
was contended that the respondent-applicant was enrolled in the
Air Force on 17.11.1973 and discharged on 30.11.2002 after
rendering 29 years and 10 days of qualifying service and was
rightly sanctioned service pension in the rank of WO with effect
from 01.12.2002; although the respondent-applicant was
promoted to the rank of MWO with effect from 01.07.2002, he had
held the said rank only for a period of five months prior to
discharge, whereas under Para 122 of the Pension Regulations for
the Air Force, 1961 (Part-I) read with Government of India letter
dated 22.11.1983, the minimum qualifying period for earning
pension in the last rank held is ten months. It was further
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submitted that under Para 123 of the said Regulations, deficiency
in service can be condoned only up to a maximum of three
months, whereas the respondent-applicant suffered a deficiency of
five months, which was beyond the condonable limit and therefore
he was not entitled to pension in the rank of MWO at the time of
discharge. Learned counsel further submitted that the authorities
had rightly sanctioned pension in the rank of WO strictly in
accordance with the applicable rules and policies, however, the
learned Tribunal failed to appreciate the same. Learned counsel
also argued that the learned Tribunal erred in granting
unrestricted arrears despite the respondent-applicant having
approached the Tribunal after an inordinate delay of more than
nineteen years. Reliance was placed upon the judgment of the
Hon'ble Apex Court in Union of India & Ors. v. Tarsem Singh
decided on 13.08.2008, reported in (2008) 8 SCC 648,
wherein it has been held that though pension claims may
constitute a continuing wrong, arrears are ordinarily required to
be restricted to three years preceding the filing of proceedings. It
was thus submitted that the learned Tribunal failed to consider the
settled legal position laid down in Tarsem Singh (Supra) and
therefore the impugned orders deserve interference by this Court.
In the alternative, it was prayed that the arrears, if any, be
restricted to a period of three years prior to filing of the Original
Application and without interest.
4. Learned counsel for the respondent submitted that the
learned AFT has rightly allowed the Original Application after
considering the applicable policy and settled legal position. It was
contended that the respondent was promoted to the rank of MWO
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with effect from 01.07.2002 and was discharged from service on
30.11.2002 while holding the said rank after rendering more than
29 years of service. Despite this, he was wrongly sanctioned
service pension in the lower rank of WO. Learned counsel
submitted that in terms of Government of India letter dated
09.02.2001, the respondent was entitled to pension in the last
rank held by him and therefore the learned Tribunal rightly
directed grant of pension in the rank of MWO. It was further
submitted that the issue of mandatory qualifying period of 10
months in the last rank held before retirement/discharge is no
longer res integra in view of the decision rendered by the AFT in
JWO Bharat Singh Khatana , TA No. 339/2010, decided on
29.01.2010, which stands affirmed by the Hon'ble Apex Court in
Union of India & Ors. v. Bharat Singh Khatana & Ors ., Civil
Appeal No. 7366-7367/2011, decided on 08.03.2016 , and
has also been followed by different Benches of the AFT in similar
matters. Learned counsel argued that the petitioners themselves
have implemented such decisions in other cases and therefore
cannot deny the same benefit to the present respondent.
5. Learned counsel further submitted that the learned Tribunal
has rightly granted consequential benefits and no interference is
called for. Reliance was placed upon the judgment dated
12.02.2026 passed by the Hon'ble Apex Court in Union of India
& Ors. v. Sgt. Grish Kumar & Ors., decided on 12.02.26,
reported in (2026) SCC OnLine SC 194, wherein it has been
held that arrears in pension matters cannot automatically be
restricted to three years prior to filing of the Original Application.
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It was thus prayed that the writ petition being devoid of merit
deserves to be dismissed.
6. We have heard the counsel for the parties and perused the
material available on record.
7. The issues which arises for consideration before this Court
are:-
(i) Whether a serviceman, who held the last promoted rank for only
five months as against the minimum qualifying requirement of ten
months prescribed under the applicable Pension Regulations, and
whose deficiency is beyond the condonable limit, can nevertheless
be directed to be granted pension on the basis of such higher last
rank held; and
(ii) Whether the learned AFT erred in law in not restricting the
arrears to a period of three years prior to the filing of the Original
Application, in light of the law laid down by the Hon’ble Apex Court
in the case of Tarsem Singh (Supra) .
8. Insofar as the first issue is concerned, it is an undisputed
position that the respondent-petitioner retired from service on
30.11.2002 while holding the rank of MWO. It is further not
disputed that the controversy involved in the present case stands
squarely covered by the judgment rendered by the learned AFT in
Bharat Singh Khatana (Supra) decided on 29.01.2010, which
was subsequently affirmed by the Hon'ble Apex Court in Bharat
Singh Khatana (Supra) wherein the issue relating to grant of
pension on the basis of the last rank held at the time of discharge
was directly considered and decided. The relevant paragraph of
the said AFT order in Bharat Singh Khatana (Supra) is
reproduced hereunder:-
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"According to the provisions of the Armed Forces Rules, the
incumbent has to serve at least 10 months on the last rank for full
pension of that post but he was not given the pension of the last
rank held by him i.e. JWO. Hence, petitioner aggrieved by this
filed the present petition before the Hon'ble Delhi High Court
which has been transferred to this Tribunal after formation of AFT
and prayed that his pension may be given on the basis of last rank
held by him. In this connection, petitioner has referred to a
Notification dated 09.02.2001 whereby the Government a Circular
of India, Ministry of Defence has issued implementing decision on
the Government recommendations of Fifth Pay Commission
relating to pensionary benefits in respect of commissioned
officers and personnel below officers ranks and in that it has been
clarified that all Armed Forces pensioners irrespective of their
date of retirement shall not get less than 50% of the minimum
revised scale on pay introduced w.e.f. 01.01.1996. Since this was
not being given by the PCDA, Allahabad and that matter came
before the Government and the Government had clarified as
under:
"It is clarified that pension of all pre-96 retiree Armed forces
Personnel will be revised on the basis of the rank/group last held
by the individual and the revised pay scales connected thereto,
even if the rank/group was held for less than 10 months before
retirement. Such pension will be reduced proportionately if the
qualifying service is less than 33 years. Other conditions to earn
pension will continue to apply."
In view of this clarification, we do not find any reason as to why
petitioner should not be given pension of the last rank held by
him for a period of 06 months. Therefore, condition of 10 months
has now been waived by the government. Consequently, we
direct that petitioner's pension should be determined in the light
of the aforesaid Circular and he may be given the pension @ 50%
of the last post held by him as JWO. His pension should be worked
out and arrears shall be paid to the petition with 12% interest.
This whole exercise should be done within three months from
today. Petition is according allowed. No order as to costs."
9. The Union of India being aggrieved of the order dated
29.01.2010 passed by the learned AFT, preferred Civil Appeal
No.7366-7367 of 2011 titled as “Union of India & Ors. Vs. Bharat
Singh Khatana & Anr.”, which came to be dismissed vide order
dated 08.03.2016. The aforesaid order dated 08.03.2016 is
reproduced hereunder:-
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“Delay condoned.
The prayer for leave to appeal is declined and the
applications/appeals for leave to appeal dismissed in terms of
the signed order.”
“Heard.
Delay condoned.
No substantial question of law of general/public importance
arises for our consideration in these applications for leave to
appeal.
The prayer for leave to appeal is accordingly declined and
the applications/ appeals for leave to appeal dismissed.”
10. The learned Tribunal in the aforesaid order dated 29.01.2010
has categorically observed that the notification dated 09.02.2001
pertaining to the recommendation of 5th Pay Commission in
respect of commissioned officer and personnel below officer rank,
the benefits arising out of the said notification were not given by
the Principal Controller of Defence Accounts (‘PCDA’), Allahabad,
and when the matter came up before the Government, the
Government had clarified that the pension of all pre-1996 retirees
Armed Forces Personnel will be revised on the basis of the rank /
group last held by the individual, even if the rank / group was held
for less than 10 months before retirement. Therefore, the
contention of the petitioners that the respondent was not entitled
to pension in the rank of MWO on account of non-fulfilment of the
minimum ten months’ service requirement in the said rank cannot
be accepted. Consequently, the learned AFT has committed no
error in directing grant of pension to the respondent on the basis
of the last rank held by him at the time of discharge.
11. Hence, the first issue is decided in favour of the respondent.
In light of the judgment rendered by the Hon'ble Apex Court in
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Bharat Singh Khatana case (Supra), the respondent is held
entitled to pension on the basis of the last rank held by him,
namely MWO, notwithstanding the fact that he had not completed
the minimum qualifying service of ten months in the said rank,
and consequently, is also entitled to consequential pensionary
benefits from the date of retirement.
12. Coming to the second issue, the respondent having been
retired while holding the rank of MWO but being sanctioned
pension in the lower rank of WO, claimed pensionary benefits in
the higher rank on the strength of the judgment rendered by the
AFT in Bharat Singh Khatana case (Supra) decided on
29.01.2010, which came to be affirmed by the Hon'ble Apex Court
in Bharat Singh Khatana case (Supra) However, the Original
Application seeking such relief came to be filed only in the year
2021, i.e. after a delay of approximately eleven years. This Court
further finds that the Hon'ble Apex Court in Bharat Singh
Khatana case (Supra) affirmed the entitlement of similarly
situated personnel to pension on the basis of the last rank held by
rejecting the challenge laid by the Union of India via a Special
Leave Petition (SLP) decided vide order dated 08.03.2016.
Subsequent thereto, the respondent submitted a representation
dated 11.04.2018 before the office of Joint CDA (AF), New Delhi
seeking revision of his pension in the rank of MWO under OROP.
However, vide communication dated 09.05.2018, the authorities
merely referred to PCDA (P), Allahabad Circular No.555 dated
04.02.2016 relating to One Rank One Pension (‘OROP’) revision
with effect from 01.07.2014, without addressing the specific
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grievance of the respondent pertaining to revision of pension on
the basis of the last rank held by him.
13. In the considered opinion of this Court, the contention
advanced by the petitioners that limitation ought to be computed
from the date of discharge of the respondent i.e. 30.11.2002 and
that the Original Application suffered from a delay of
approximately nineteen years, is misconceived and cannot be
accepted. The right asserted by the respondent effectively
crystallized upon affirmation of the judgment in Bharat Singh
Khatana case (Supra) by the Hon'ble Apex Court i.e. on
08.03.2016 and thereafter a fresh cause of action arose upon
rejection of his representation vide communication dated
09.05.2018.
14. This Court is further of the considered view that a claim
arising out of pensionary benefits constitutes a continuing wrong,
giving rise to a recurring and successive cause of action with each
denial or short payment of pension legitimately due to the
claimant. The principle enunciated by the Hon'ble Apex Court in
Tarsem Singh case (Supra) clearly recognizes that pension-
related claims stand on a different footing and are capable of
giving rise to a continuing cause of action. Since the time period
between 08.03.2016, i.e. the date on which the respondent’s
rights stood crystallized upon affirmation of the judgment in
Bharat Singh Khatana case (Supra) , and 09.05.2018, i.e. the
date of rejection of his representation, falls well within the three-
year period contemplated in Tarsem Singh case (Supra) , the
objection regarding limitation and restriction of arrears is devoid
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of merit and cannot be sustained. Consequently, this Court finds
no legal footing in the objection raised by the petitioners with
regard to delay and limitation.
15. In view of the discussion hereinabove, both issues are
answered against the petitioners and in favor of the respondent.
Regarding the first issue, the controversy stands squarely covered
by the judgment in Bharat Singh Khatana (Supra), as affirmed by
the Hon'ble Apex Court, which categorically held that pension is
liable to be determined on the basis of the last rank held, even if
held for less than ten months prior to retirement; accordingly, the
respondent is entitled to pensionary benefits in the rank of MWO
from the date of his retirement. As for the second issue, the
petitioners' objection regarding delay and limitation does not merit
acceptance. The respondent’s right crystallized upon the Apex
Court's affirmation of Bharat Singh Khatana on 08.03.2016, with a
fresh cause of action arising upon the rejection of his
representation on 09.05.2018. Moreover, as recognized in Tarsem
Singh (Supra), pensionary claims constitute a continuing wrong
that gives rise to a recurring cause of action, meaning the claim
cannot be barred merely because the respondent was discharged
on 30.11.2002.
16. This Court further finds support for the aforesaid conclusion
from the judgment of the Hon’ble Apex Court in Sgt. Grish
Kumar case (Supra) , wherein the Hon’ble Apex Court held that
the claims of the ex-servicemen did not suffer from delay or
laches as the legal position governing their entitlement had
attained finality only upon the pronouncement of the judgment in
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Union of India & Others v. Ram Avtar , 2014 SCC OnLine SC
1761 , whereafter the right to approach the Tribunal effectively
accrued to them. In the facts and circumstances of that case, the
Hon’ble Apex Court consequently held that the objections founded
on delay and limitation were without merit and declined to restrict
the arrears to three years preceding the institution of the
proceedings. Similarly, in the present case, the respondent
asserted his claim only after the legal position was clarified
regarding entitlement to pension on the basis of the last rank held
stood settled upon affirmation of Bharat Singh Khatana case
(Supra) by the Hon’ble Apex Court on 08.03.2016 and thereafter
diligently pursued his remedy by submitting a representation
before the competent authority, followed by institution of the
Original Application. Therefore, the objection raised by the
petitioners with regard to delay and restriction of arrears does not
merit acceptance.
17. It is also pertinent to note the miscellaneous application
preferred by the present petitioners seeking modification of the
aforesaid order in also came to be rejected by the learned Tribunal
vide order dated 27.09.2024 after specifically observing that apart
from a delay of four months and twenty-three days in filing the
Modification Application, no ambiguity, error apparent on the face
of the record, or any other ground warranting modification of the
order passed on merits was made out. This Court also does not
find any infirmity in the said reasoning adopted by the learned
Tribunal.
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18. Furthermore, it is also pertinent to note that this Court does
not find any illegality or error in the impugned orders passed by
the learned AFT warranting interference in exercise of writ
jurisdiction.
19. The writ petition being devoid of merit is accordingly
dismissed. Pending application(s), if any, also stand disposed of.
(DR. NUPUR BHATI),J (DR. PUSHPENDRA SINGH BHATI),J
24-/Devesh/-
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