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2012 DIGILAW 682 (UTT)

Kripal Singh Bankoti v. Union of India

2012-11-06

K.J.SENGUPTA

body2012
Judgment : Hon’ble Kalyan Jyoti Sengupta, J. 1. By this writ petition, the petitioner has challenged the order dated 23rd July, 1990 passed by respondent No.2, Record Officer, Office of Maha Nideshak, Assam Rifles, Director General, Assam Rifles Pension Branch-2, Shilong whereby the prayer of the petitioner for granting disability pension has been rejected on the ground mentioned therein. The petitioner has also prayed for an alternative relief for granting at least invalid pension if disability pension cannot be granted. 2. The facts are not disputed. Notwithstanding, I feel this should be produced for better appreciation of this case. 3. On 16th July, 1962, the petitioner was appointed as a Rifleman in Assam Rifles preceded by the selection held in District Pithoragarh, State of Uttarakhand. The petitioner undergone for basic training at Kohima and the petitioner was appointed initially on 3rd Battalion of Assam Rifles in 1962. Thereafter, the petitioner was again sent for basic training and after completing the basic training of Rifleman, he was selected for signal training and sent at Deemapur, Assam for the above mentioned training. After completion of training, he was promoted to the post of Hawaldar and, as such, he was deployed in 8th Battalion Assam Rifles at Tuensang, Nagaland. When he was under sophisticated training before being deployed as Hawaldar, he developed eye disease which resulted in poor vision and it persisted with the passage of time. In the year, 1968, he was sent for treatment of eyes at Jorhaat Civil Hospital, Assam where he was treated but he could not get back his vision. Therefore, it was reported to Commandant of Battalion that the petitioner was unfit for the minute work on account of his poor vision. The commandant of 8th Assam Rifles, where the petitioner was deployed in the Battalion, recommended the case of the petitioner to Head Quarter of Inspector General of Assam Rifles at Shilong and on the recommendation of the Head Quarter, the petitioner was discharged from service on 8th January, 1969. Thus, the petitioner rendered service for about 6 years 5 months and 22 days. 4. Thereafter, he made representation to the various authorities for granting disability pension. The representation made last in the year 1990 which was replied by respondent No.2 by passing the order impugned. 5. The petition admitted for hearing and affidavits were exchanged. Thus, the petitioner rendered service for about 6 years 5 months and 22 days. 4. Thereafter, he made representation to the various authorities for granting disability pension. The representation made last in the year 1990 which was replied by respondent No.2 by passing the order impugned. 5. The petition admitted for hearing and affidavits were exchanged. At the outset, the learned counsel for the respondents has taken up the point of territorial jurisdiction saying that none of the respondents is having place of office within the territorial limit of this Court nor any part of cause of action is stated to have arisen within the territorial limit of this Court. The point of territorial jurisdiction has been taken specifically in the Counter affidavit and I find in the writ petition, the jurisdiction of fact as required under Article 226 of the Constitution has not been mentioned but when the point of territorial jurisdiction is taken in counter affidavit, in the rejoinder affidavit it has been stated specifically that the selection was held by the respondents in the District Pithoragarh situated in the territorial limit of this Court. Aforesaid factual aspect was not attempted to be dealt with by filing any affidavit. This Court before hearing the matter on merit offered the learned counsel for the respondents to deal with the aforesaid jurisdictional statement made in the rejoinder affidavit by filing further affidavit. The learned counsel submits that it is a very old matter and at this point of time no relevant document can be traced to deal with this allegation. 6. Before I proceed to deal with the matter on merit, I think that question of jurisdiction has to be decided first. Clause 2 of Article 226 of the Constitution of India is the law governing the question of jurisdiction. The said clause (2) of Article 226 of the Constitution is extracted as follows: “(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories” 7. Before insertion of the aforesaid clause, previous writ petition could be filed in the High Court within whose territorial jurisdiction the respondent(s) seat of office or business situated. But after insertion of the aforesaid clause with amendment which took place in the year 1977, the sitting of the respondents is no longer exclusive decisive factor as far as jurisdiction is concerned. The cause of action has become the additional factor for invoking jurisdiction. Therefore, accrual of part or whole cause of action within territorial jurisdiction of any of the High Court has to be taken into consideration. Now writ petition can be entertained irrespective place of office of the respondents. 8. Now, it has to be examined whether the undisputed fact as mentioned in rejoinder affidavit constitute any part of cause of action. It is said that the selection procedure was conducted in District Pithoragarh during the State of Uttarakhand and after selection was over, the petitioner was chosen. In my view, unless there is selection, there cannot be appointment and logically if there is no appointment, no question of discharge. Therefore, I think a portion of cause of action has arisen when the petitioner has been selected within the territorial limit of this Hon’ble High Court, namely at Pithoragarh. It is true that the petitioner was posted after appointment at Dimapur situated in the State of Assam and he was discharged from the State of Assam. I think this bundle of facts also constitutes part of cause of action. The Supreme Court in case of Rajendran Chingaravelu Vs. R.K. Mishra, Additional Commissioner of Income Tax and others, (2010) 1 SCC 457 observed as follows: “The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of fact which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, the High Court of that State will have jurisdiction. 9. In the case before the Supreme Court, the place of interception for seizure action took place within the territorial jurisdiction of Hon’ble Andhra Pradesh High Court and it was held that factum of interception was though small, a portion of cause of action accrued within the territories of Andhra Pradesh and the Court of that State will have jurisdiction. 10. In the light of the aforesaid decision, I hold that the petitioner has been able to satisfy this Court regarding part of cause of action having been arisen within the limit of this Court. 11. Now, coming to the merit of the case, the respondents have rejected the claim of the petitioner for pension on account of disability. I think such decision is absolutely correct and this Court cannot interfere with the same. The decision was taken in the year 1990 and the writ petition has come up in the year 2005 to challenge the same. In between 1990 to 2006, I do not find any explanation of the petitioner. Moreover, as has been rightly pointed by the respondents in order to get the disability pension one has to apply within the stipulated time, but it was not done so. It is very difficult to get hold of papers to find out the extent of the disability pension. Drawing attention to paragraph 12 of the counter affidavit, the learned counsel for the respondents submits that he has been granted invalid pension. In the rejoinder affidavit, it was specifically stated by the petitioner not a single paise has been released on any account. 12. From the counter affidavit, I find that the petitioner is entitled to get invalid pension. The same must be paid to the petitioner. In the rejoinder affidavit, it was specifically stated by the petitioner not a single paise has been released on any account. 12. From the counter affidavit, I find that the petitioner is entitled to get invalid pension. The same must be paid to the petitioner. I, therefore, direct the respondents to pay invalid pension as permissible under the law and this shall be released from the date when he had become eligible to get alongwith arrears. Steps must be taken within a period of two months from the date of communication of this order. Despite having accepted that the petitioner is eligible to get invalid pension, the same was not released, as such, the petitioner is entitled to get interest @ 9% p.a. on the arrear amount. 13. The writ petition is disposed of. 14.There is no order as to cost.