Union of India & Ors. v. No. 40634Z Lt. Ak Thapa (Released)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of. W.P.(C) 17139/2024, CM APPL. 72769/2024 and CM APPL. 72770/2024

3. This petition has been filed challenging the Order dated 07.07.2023 passed by the learned Armed Forces Tribunal (in short, „AFT‟), Principal Bench, New Delhi in Original Application (hereinafter referred to as, „OA‟) No. 2240/2019, titled Lt. A.K. Thapa (Released) v. Union of India and Ors., partially allowing the O.A filed by the respondent herein with the following directions:-

4. The learned senior counsel for the petitioners submits that apart from the other infirmities in the Impugned Order, the learned AFT has also held that the words in clause 2 of the Ministry of Defence letter dated 16.07.2020, which states that the requirement of the Armed Forces Personnel “to be permanently incapacitated from civil employment as well” for the grant of Invalid Pension, are wholly unconstitutional.

5. The learned senior counsel for the petitioners submits that there was no challenge laid by the respondent to the above policy letter in the OA filed by the respondent before the learned AFT. In fact, there was no prayer made by the respondent for the grant of invalid pension; the only prayer of the respondent was for grant of disability pension, which has been rejected by the learned AFT in the Impugned Order. He submits that, therefore, apart from there being no occasion for the learned AFT to have determined the eligibility of the respondent for grant of invalid pension or the constitutional validity of Clause (2) of the letter dated 16.07.2020, an opportunity to defend the same was also not granted to the petitioners. He submits that, therefore, the Impugned Order is liable to be set aside by this Court in exercise of its power under Article 226 of the Constitution of India.

6. On the other hand, the learned counsel for the respondent, who appears on advance notice, submits that by an Order dated 17.05.2024 passed in M.A. 1721/2024 with M.A Nos. 4608-4609/2023 passed in the above OA by the learned AFT, leave has been granted to the petitioners to assail the Order dated 07.07.2023 passed in the above OA before the Supreme Court.

7. Placing reliance on Section 31(3) of the Armed Forces Tribunal Act, 2007 (in short, „AFT Act‟), he submits that once leave is granted, the appeal is deemed to be pending before the Supreme Court. He submits that, therefore, this Court should not exercise its powers under Article 226 of the Constitution of India to examine the plea raised by the petitioners.

8. We have considered the submissions made by the learned counsels for the parties.

9. Section 31 of the AFT Act reads as under:-

application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time.”

10. Sub Section (3) of Section 31 of the AFT Act, creates a deeming fiction providing that if the leave to appeal is granted by the learned AFT, until the appeal is disposed of, such appeal shall be treated to be pending before the Supreme Court.

11. In the present case, the effect of the Order dated 17.05.2024 passed by the learned AFT, therefore, shall be that the appeal filed by the petitioners to challenge the Order dated 07.07.2023 is pending before the Supreme Court. There cannot be two alternate remedies simultaneously taken by the petitioners to challenge the same order.

12. We, therefore, do not deem it fit to exercise our powers under Article 226 of the Constitution of India in the present petition, a statutory remedy having already been availed of by the petitioners and pending adjudication.