UNION OF INDIA vs NO 12818489X NAIK JITPAL SINGH
- Court
- Uttarakhand High Court
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Service Bench No. 323 of 2024
29 October, 2026
Union Of India & others …Petitioners
Versus
Prem Ballabh Bhatt …Respondent
With
Writ Petition (S/B) No. 189 of 2025
Writ Petition (S/B) No. 517 of 2024
Writ Petition (S/B) No. 518 of 2024
Writ Petition (S/B) No. 520 of 2024
Writ Petition (S/B) No. 734 of 2024
Writ Petition (S/B) No. 515 of 2024
Writ Petition (S/B) No. 519 of 2024
Writ Petition (S/B) No. 521 of 2024
Writ Petition (S/B) No. 522 of 2024
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Presence:-
Petitioner : Mr. Rajesh Sharma, learned Central
Government Standing Counsel for the
petitioner
Respondent : Mr. T.P.S. Takuli, learned counsel for the
respondents
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Hon’ble Manoj Kumar Tiwari, ACJ
Hon’ble Subhash Upadhyay, J.
(Per: Hon’ble Manoj Kumar Tiwari, ACJ)
JUDGMENT
1. Since common questions of law and fact are
involved in these petitions, therefore, they are being
heard and decided together. However, for the sake of
brevity and convenience, facts of WPSB No. 323 of
2024 alone are being considered and discussed.
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2. Union of India has filed this writ petition
challenging judgment dated 17.11.2021 passed by
Armed Forces Tribunal, Regional Bench Lucknow
(Circuit Bench Nainital) in Original Application No. 422
of 2021. By the said judgment, original application,
filed by respondent – Mr. Prem Ballabh Bhatt, was
partly allowed. The order passed by respondents (Union
of India), rejecting his claim for grant of terminal
gratuity was set-aside, and it was held that respondent
is entitled for grant of terminal benefit for the services
rendered in territorial army, as per Pension
Regulations. Operative portion of the said judgment is
reproduced below:-
“ 6. In the instant case applicant has been denied terminal
gratuity on the basis of Govt of India, Min of Defence letter
dated 30.10.2018.Section 4 of Payment of Gratuity Act, 1972
reads as under:-
Section: 4, Payment of Gratuity.
(1) Gratuity shall be payable to an employee on the termination of
his employment after he has rendered continuous service for not less
than five years, - (a) on his superannuation, or (b) on his retirement or
resignation, or (c) on his death or disablement due to accident or
disease: Provided that the completion of continuous service of five
years shall not be necessary where the termination of the employment
of any employee is due to death or disablement: Provided further that in
the case of death of the employee, gratuity payable to him shall be paid
to his nominee or, if no nomination has been made, to his heirs, and
where any such nominees or heirs is a minor, the share of such minor,
shall be deposited with the controlling authority who shall invest the
same for the benefit of such minor in such bank or other financial
institution, as may be prescribed, until such minor attains majority.]
Explanation. : For the purposes of this section, disablement means such
disablement as incapacitates an employee for the work which he, was
capable of performing before the accident or disease resulting in such
disablement.
(2) For every completed year of service or part thereof in excess of
six months, the employer shall pay gratuity to an employee at the rate of
fifteen days wages based on the rate of wages last drawn by the
employee concerned: Provided that in the case of a piece-rated
employee, daily wages shall be computed on the average of the total
wages received by him for a period of three months immediately
preceding the termination of his employment, and, for this purpose, the
wages paid for any overtime work shall not be taken into account.:
Provided further that in the case of [an employee who is employed in a
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seasonal establishment and who is riot so employed throughout the
year], the employer shall pay the gratuity at the rate of seven days
wages for each season. Explanation: In the case of a monthly rated
employee, the fifteen days wages shall be calculated by dividing the
monthly rate of wages last drawn by him by twenty-six and multiplying
the quotient by fifteen.
(3) The amount of gratuity payable to an employee shall not
exceed three lakhs and fifty thousand rupees.
(4) For the purpose of computing the gratuity payable to an
employee who is employed, after his disablement, on reduced wages,
his wages for the period preceding his disablement shall be taken to be
the wages received by him during that period, and his wages for the
period subsequent to his disablement shall be taken to be the wages as
so reduced.
(5) Nothing in this section shall affect the right of an employee to
receive better terms of gratuity under any award or agreement or
contract with the employer.
(6) Notwithstanding anything contained in sub-section (1), -
(a) the gratuity of an employee, whose services have been
terminated for any act, wilful omission or negligence causing
any damage or loss to, or destruction of, property belonging to
the employer, shall be forfeited to the extent of the damage or
loss so caused.
(b) the gratuity payable to an employee may be wholly or partially
forfeited] –
(i) if the services of such employee have been terminated
for his riotous or disorderly conduct or any other act of
violence on his part, or
(ii) if the services of such employee have been terminated
for any act which constitutes an offence involving moral
turpitude, provided that such offence is committed by
him in the course of his employment.
7. Section 189 (a) of Pension Regulations for the
Army, Part-1, (2008) which deals with the conditions for
grant of Terminal Gratuity reads as under:-
(a) Conditions for grant of Terminal Gratuity:- Terminal gratuity
shall be granted to an individual who has completed a minimum
of 5 years of aggregate embodied service in Territorial Army or
10 years engagement in Territorial Army (combined embodied
and non- embodied) and who dies during the period of
disembodiment or who retires in the following circumstances:-
(i) In the case of Officer or Junior Commissioned
Officer:
(1) On disbandment/re-organisation /inter- zonal transfer of Units,
provided there is no other Unit to which the individual can be
transferred, or his consent to a transfer is necessary under the
rules and he refuses to consent thereto.
(2) On reaching the prescribed retiring age;
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(3) On being declared medically unfit for further service due to
causes neither attributable to nor aggravated by military
service;
(4) On completion of tenure of appointment or service limits; or
(5) When services are no longer required otherwise than on
disciplinary grounds;
(ii) In the case of Other Ranks:
(1) On becoming entitled to receive his discharge under the
Territorial Army Act/Rules;
(2) On being declared medically unfit for further service due
to causes neither attributable to nor aggravated by
military service,
Or
(3) When services are no longer required otherwise than on
disciplinary grounds.
8. In view of the above, “Terminal gratuity shall be
granted to an individual who has completed a
minimum of 5 years of aggregate embodied service
in Territorial Army” and (in this case) on becoming
entitled to receive discharge under the TA Act/Rules
as per para (a) (i) and (ii) (1) quoted above. Pension
Regulation 2008 is Statutory Rule and Govt of India
letter dated 30.10.2018 cannot supersede and
cannot have retrospective application over it.
9. The executive letters cannot supersede para 189 of
Pension Regulations as the latter is considered as
rules having force of law and is therefore having
overriding effect. As far as question “whether a rule
made under Article 309 of the Constitution of India
can be set at naught by an executive fiat ‟is
concerned, it is settled law that executive fiat cannot
override the statutory provisions. Hon’ble Allahabad
High Court in full Bench judgment in a similar matter
in decided on
Special Appeal No 1143 of 2001
28.07.2004, in the case of Vijay Singh and Others
vs State of UP and Others has held as under:
It is settled legal proposition that executive instructions
cannot override the statutory provisions. Executive
instructions cannot amend or supersede the statutory
Rules or add something therein, nor the orders be
issued in contravention of the statutory rules for the
reason that an administrative instruction is not a
statutory rule nor does it have any force of law, while
statutory rules have full force of law provided the same
are not in conflict with the provisions of the Act. In Union
of India v. Sri SomasundaramVishwanath, the Hon’ble
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Apex Court observed that if there is a conflict between
the executive instruction and the rules framed under the
proviso to Article 309 of the Constitution, the rules will
prevail. Similarly, if there is a conflict in the rules made
under the proviso to Article 309 of the Constitution and
law, the law will prevail. Statutory rules create
enforceable rights which cannot be taken away by
issuing executive instruction. In the case of Ram Ganesh
Tripathi v. State of UP, the Hon’ble Supreme Court
considered a similar controversy and held that any
executive instruction/ order which runs counter to or is
inconsistent with the statutory rules cannot be enforced,
rather deserves to be quashed as having no force of law.
The Hon’ble Court observed as under:-
“They (respondents) relied upon the order passed
by the State. This order also deserves to be
quashed as it is not consistent with the statutory
rules.”
10. In this regard, relevant paras 20 to 23 of the
judgment passed by Armed Forces Tribunal,
Principal Bench, New Delhi in O.A. NO 77 of 2015
with M.A. No 1279 of 2018, Sgmn Khaja
Mohiddin Bhasha Shaikvs Union of India and
decided on 30.08.2018 being relevant are
Others
reproduced as under:-
“20. As for as the legal validity of the Regulations for the
Army 1987 is concerned, there is no doubt that it has been
issued under the authorities of Army Act Section 192 to
clarify & supplement the statute. The employer, Government
of India is well within its right to issue these regulations
giving clarity on a host of issues like discipline, dress,
clothing, terms of service etc. These have the force of law.
Reliance is placed on Civil Appeal No 3846 of 2010, Pepsu
Road Transport Corporation Vs Jagroop decided on
12.05.2011, wherein the Apex Court had observed:-
“16) It is well settled law that the Regulations made
under the statute laying down the terms and conditions
of service of employees, including the grant of retirement
benefits, has the force of law. The Regulations validly
made under statutory powers are as binding and
effective as the enactment of the competent legislature.
The statutory bodies as well as general public are bound
to comply with the terms and conditions laid down in the
Regulations as a legal compulsion. Any action or order
in breach of the terms and conditions of the Regulations
shall amount to violation of Regulations which are in the
nature of statutory provisions and shall render such
action or order illegal and invalid.”
17. In Sukhdev Singh Vs Bhagatram Sardar Singh
Raghuwanshi, (1975) 1 SCC 421, the Apex Court had
observed:-
30. In this view a Regulation is not an agreement
or contract but a law binding the corporation, its
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officers, servants and the members of the public
who come within the sphere of its operations. The
doctrine of ultra vires as applied to statutes, rules
and orders should equally apply to the
Regulations and any other subordinate
legislation. The Regulations made under power
conferred by the statute are subordinate
legislation and have the force and effect, if validly
made, as the Act passed by the competent
legislature.
33. There is no substantial difference between a
rule and a Regulation inasmuch as both are
subordinate legislation under powers conferred
by the statute. A Regulation framed under a
statute applies uniform treatment to everyone or
to all members of some group or class. The Oil
and Natural Gas Commission, the Life Insurance
Corporation and Industrial Finance Corporation
are all required by the statute to frame
Regulations inter alia for the purpose of the duties
and conduct and conditions of service of officers
and other employees. These Regulations impose
obligation on the statutory authorities. The
statutory authorities cannot deviate from the
conditions of service. Any deviation will be
enforced by legal sanction of declaration by
courts to invalidate actions in violation of rules
and Regulations. The existence of rules and
Regulations under statute is to ensure regular
conduct with a distinctive attitude to that conduct
as a standard. The statutory Regulations in the
cases under consideration give the employees a
statutory status and impose restriction on the
employer and the employee with no option to vary
the conditions. An ordinary individual in the case
of master and servant contractual relationship
enforces breach of contractual terms. The
remedy in such contractual relationship of master
and servant is damages because personal
service is not capable of enforcement. In cases of
statutory bodies, there is no personal element
whatsoever because of the impersonal character
of stator bodies. In the case of statutory bodies it
has been said that the element of public
employment or service and the support of statute
require observance of rules and Regulations.”
21. Further in Vidyadhar Pande Vs Vidyut Grih Siksha
Samiti, (1988) 4SCC 734, the Apex Court observed:-
“10. There is, therefore, no escape from the conclusion
that Regulations have force of law. The order of the High
Court must, therefore, be reversed on this point
unhesitatingly”.
22. Even in the case of non-statutory Regulations like the
Pension Regulations of the Army 1962, the Apex Court
while elaborately discussing the nature and effect of the
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Regulations in Major (Retd) Hari Chand Pahwa Vs UOI
&Ors 1995 Supp (1) SCC 221, had observed:-
“We do not agree even with the second
contention advanced by the learned counsel. The
provisions of Regulation 16 (a) are clear. Even if
it is assumed that the Pension Regulations have
no statutory force, we fail to understand how the
provisions of the said Regulations are contrary to
the statutory provisions under the Act or the
Rules. The pension has been provided under
these Regulations. It is not disputed by the
learned counsel that the pension was granted to
the Corporation under the said Regulations. The
Regulations which provided for the grant of
pension can also provide for taking it away on
justifiable grounds.”
23. In view of the forgoing, there is no escape from the conclusion
that Regulations of the Army (1987) have the force of law and
we have no hesitation in rejecting the contention of the learned
counsel for the applicant.
11. It is evident that executive instructions cannot be
issued in contravention of the rules framed under the
proviso to Article 309 of the Constitution and statutory
rules cannot be set at naught by the executive fiat. It is a
sound principle of all jurisprudence that a prior particular
law is not easily to be held to be abrogated by a posterior
law, expressed in general terms and by the apparent
generality of its language applicable to and covering a
number of cases, of which the particular law is but one. In
case of the
UoI v. Sri Somasundaram Vishwanath,
Hon‟ble Apex Court observed that if there is a conflict
between the executive instruction and the rules framed
under the proviso to Article 309 of the constitution, the
rules will prevail. Similarly, if there is a conflict in the rules
made under the proviso to Article 309 of the Constitution
and the law, the law will prevail. Moreover, if an individual
can be granted double pension for services rendered in
the army, then terminal gratuity can also be granted. ”
3. Mr. T.P.S. Takuli, learned counsel appearing
for the respondent, however, submits that against
identical judgment, rendered by learned Armed Forces
Tribunal, Union of India had approached Hon’ble
Supreme Court by filing SLPs, however, all such SLPs
were dismissed. He refers to an order dated
18.11.2025 rendered in Civil Appeal No. 13775 of 2025
( Union of India & others vs. Diwan Singh ), whereby SLP
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filed by Union of India was dismissed.
4. After hearing learned counsel for the parties
and upon perusal of the record, we do not find any
scope for interference with the impugned judgment.
Learned Tribunal has considered and discussed all
relevant aspects, including judgments rendered by
Hon’ble Supreme Court on the subject. Learned
Tribunal has further rightly held that Executive
Instructions cannot override Statutory provisions, and
whenever there is conflict between Statute and
Executive Instructions, Statute would prevail.
6. In the facts and circumstances of the case,
we do not find any scope for interference with the
judgment rendered by learned Tribunal.
7. Accordingly, writ petitions fail and are
dismissed.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, ACJ)
29.10.2026
Aswal
NITI RAJ
SINGH
ASWAL
Digitally signed by NITI RAJ SINGH ASWAL
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=eacc6757ee7881e933ff8934f07477005a a85f9802a3a08b08d1369512ea30f3,
postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3
D26F5C22DACF4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL
Date: 2026.10.30 21:40:30 -07'00'
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