HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU (Through Virtual Mode From Srinagar) WP(C) No. 3048/2024 Reserved on : 06.06.2025 Pronounced on:30.08.2025 1.Union of India through its Secretary to Government of India, Ministry of Defence, South Block, New Delhi-110011. 2.Additional Director General Personnel Services, Adjutant General's Branch, Integrated HQ of Ministry of Defence (army), DHQ PO, Mew Delhi-110011. 3. Principal Controller of Defence Accounts (Pensions), Draupadi Ghat, Allahabad, Uttar Pradesh-211014. 4. OIC Records, Records JAK LI, Pin Code-91LOL7, Clo 56 APO. ……Petitioner/Appellant(s) Through:- Mr. Vishal Sharma, DSGI V/s Smt Kamla Devi w/o No 12880247X Ex Rfn Harbans Lal, S/o Shri Mangal Ram, R/o Village & Post Office: Thalora, District: Udhampur, Jammu and Kashmir. …….Respondent(s) Through:- Mr. S. K. Saini, Advocate CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE HON’BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE JUDGMENT Per: Sindhu Sharma-J 1. Through the medium of the instant petition filed under Article 226 of the Constitution of India, the petitioners seek quashing of order dated 01.08.2023 passed by the Armed Forces Tribunal Srinagar, Bench at Jammu ( for short ‘AFT’) in OA 677/2018 titled Smt. Kamla Devi vs. Union of India and others, by virtue of which the applicant-respondent herein has been held entitled to the grant of disability pension @ 50% against disability of 40% assessed compositely for the diseases Diabetes Mellitus and primary Hypertension. 2. Briefly stated the facts of the case are that the husband of the respondent (since deceased), Ex-Rfn Harbans Lal, was initially enrolled in the Indian WP(C) 3048 of 2024 Army on 13.03.1979 and was discharged therefrom on 30.09.1995 in medical category SHAPE–1. He was granted service pension for the said spell of service. He was re-enrolled in 129 Territorial Army (Ecological Battalion) on 13.01.2000 and invalided out this service on 31.08.2015 in Low Medical Category. 3. At the time of his discharge, he was brought before Invaliding Medical Board and was found to be suffering from the following four disabilities: (i) Diabetes Mellitu (ii) Morbid Obesity, (iii) Primary Hypertension, and (iv) Dyslipidemia. 4. Out of the aforementioned disabilities, Morbid Obesity and Dyslipidemia were opined to be neither attributable to nor aggravated by military service. The remaining two disabilities, Diabetes Mellitus and Primary Hypertension, were assessed at 40% (composite) and were considered attributable to and aggravated by military service. The composite disability for all four conditions was assessed at 50%. The claim for grant of disability pension was, however, rejected on the ground that, as per the Government policy, members of the Territorial Army (Ecological Battalion) are not entitled to disability pension. 5. Before the AFT the respondent restricted her prayer only to the grant of disability pension for the diseases attributed to and aggravated by Military services, i.e., Diabetes Mellitus and Primary Hypertension, in respect of which disability had been compositely assessed at 40%. 6. The AFT while relying upon the judgment of Supreme Court in case titled Pani Ram vs. Union of India and others, reported as 2021 (19) SCC 234 allowed the application of the respondent and granted disability pension @ WP(C) 3048 of 2024 50% against disability of 40% assessed compositely for the diseases Diabetes Mellitus and primary Hypertension. 7. The grievance of the petitioners is that the respondent was re-enrolled in the Territorial Army (Ecological) after serving in the regular army and thus, not entitled to disability pension. Reliance is placed on the following communications in support of this contention:- a) Government of India letter No. 2(1)/92/D(GS-VI)(3) dated 30.12.1992; b) CGDA, New Delhi letter No. A/II/13401/Ecological (TA) dated 04.11.1993; c) Additional Directorate General, TA, Army HQ letter No. 38974/GS/TA-3(a) dated 06.05.1994; d) Additional Directorate General, TA, Army HQ letter dated 27.08.2003. Additional Directorate General, TA letter No. 38974/GS/TA-3 dated 27.06.2006; e) Additional Directorate General, TA letter No. 38974/Eco/GS/TA-3 dated 05.09.2006; f) Additional Directorate General, TA letter No. 34456/Dis/GS/TA-3 dated 08.06.2017; g) Government of India, Ministry of Defence letter No. PC to MF 68640/Eco/Gen/TA-2/513/US/D(GS-III)/2018 dated 30.10.2018. 8. It is further submitted that ex-servicemen employed with the unit are on contractual basis and not entitled to any disability pension. The personnel having regard to the terms and conditions of service cannot seek the same, as such, the learned AFT has wrongly granted disability pension to the respondent. The respondents have relied on these communications along with the fact that the respondent’s husband had agreed to the terms and conditions of the Territorial Army. 9. That it is profitable to refer to sub-section (1) of Section 9 of the Territorial Army Act, 1948:- “Sec. 9. Application of the Army Act, 1950. (1) Every officer, when doing duty as such officer, and every enrolled person when called out or embodied or attached to the Regular Army], shall, subject to such adaptations and modifications as may be made therein by the Central Government by notification in the Official Gazette, be subject to the provisions of the Army Act, 1950, and the rules or regulations made thereunder in the same manner and to the same extent as if such officer or enrolled person held the same rank in the WP(C) 3048 of 2024 Regular Army as he holds for the time being in the Territorial Army.” 10. The above provision clearly states that every person in the Territorial Army shall be subject to the provisions of Army Act, 1950 and the rules framed thereunder, as such, would be entitled to disability pension. Similar aspect was considered by the Hon’ble Supreme Court in Pani Ram vs Union of India & ors. reported as (2021) 19 SCC 234, has observed as under:- “18. The perusal thereof will reveal that an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in nonbattle casualty and is assessed 20% or more, would be entitled to disability pension. The respondents are not in a position to point out any rules or regulations, which can be said to be inconsistent with Regulation No. 292 or 173, neither has any other regulation been pointed out, which deals with the terms and conditions of service of ETF. 19. The communication of the Union of India dated 31st March 2008, vide which the President of India has granted sanction, itself reveals that the sanction is for raising two additional companies for 130 Infantry Battalion (Territorial Army) Ecological. 20. It is thus clear that the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. It is not in dispute that the other officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961. When the appellant is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), we see no reason as to why the appellant was denied the disability pension. Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence. 21. In case of conflict between what is stated in internal communication between the two organs of the State and the Statutory Rules and Regulations, it is needless to state that the Statutory Rules and Regulations would prevail. In that view of the matter, we find that AFT was not justified in rejecting the claim of the appellant. 22. The respondents have heavily relied on the document dated 30th August 2007, titled “Certificate”. No doubt that the said document is signed by the appellant, wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in this force. Firstly, we find that the said document deals with enhanced pension and not disability pension. As already discussed hereinabove, a conjoint reading of Section 9 of the Territorial Army Act, 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army, 1961, would show that a member of the Territorial Army would be entitled to disability pension. In any case, in this respect, even accepting that the appellant has signed such a document, it will be relevant to refer to the following observations of this Court in the case of Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another1 : WP(C) 3048 of 2024 “89. ……We have a Constitution for our country. Our judges are bound by their oath to “uphold the Constitution and the laws”. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws.” 11. In the Pani Ram’s case (supra), he after serving 25 years in regular Army, reenrolled full-time with the Territorial Army’s Ecological Task Force in August 2007. While returning from duty leave on April 24, 2009, he was in a fatal scooter accident resulting in 80% disability and amputation. A Court of Inquiry and Medical Boards attributed this injury to military service. He sought a disability pension under the Pension Regulations for the Army, 1961 (Regulations 173 & 292). The Armed Forces Tribunal (AFT) rejected this claim, citing a 31 March 2008 MoD letter that excluded ETF personnel from disability pension benefits, and Pani Ram’s signed “Certificate” waiving enhanced pension. The Supreme Court confirmed that pension rules are statutory; internal communications or instructions (like the 2008 MoD letter) cannot override them. It was further held that Territorial Army members (including ETF) are governed by the same pension rules as regular Army personnel unless explicitly exempted, no exception appeared in the statutory scheme. AFT’s orders were quashed. 12. In the aforesaid facts and circumstances of the case and the law as laid down in Pani Ram’s case, there is no merit in this appeal, as such, order dated 01.08.2023 passed by the Armed Forces Tribunal Srinagar, Bench at Jammu is upheld and the appeal is, accordingly, dismissed. (Shahzad Azeem) (Sindhu Sharma) Judge Judge Jammu: 30.08.2025 Bir Whether approved for reporting? Yes/No