SANTOSH DEVI versus UNION OF INDIA. & ORS.

Citation: [2016] 4 S.C.R. 417 · Decided: 06-05-2016 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Disposed off

Judgment (excerpt)

[2016] 4 S.C.R. 417 
SANTOSH DEVI 
v. 
UNION OF INDIA. & ORS. 
(Civil Appeal No. 4853 of2016) 
MAY06,2016 
[T. S. THAKUR, CJI AND R. BANUMATHI, J.) 
Family Pension - Entitlement - To the next of kin of deceased 
territorial army personnel - Who died in disembodied state and 
who had not put in pensionable service - Held: When the territorial 
army personnel are in disembodied state, their service conditions 
are governed by Territorial Army Act, 1948 and not by Army Act, 
1950 - As per the existing rules no family pension is payable to the 
legal heir of a territorial army personnel, who died during 
disembodied state and who had not put in pensionable service -
Howeve1; such rule has led to a patent anomaly - The authorities 
concerned, despite having taken note of such anomaly have not 
taken any steps to rectify the same - The State is required to remove 
the anomalies and pay family pension to the next of kin of the 
deceased territorial army personnel who die while in disembodied 
state, by giving due weightage to their embodied service - Jn view 
of the peculiar facts and circumstances of the present case, in the 
interest of justice and in exercise of power under Art. 142 of the 
Constitution, myard of ex-gratia grant of Rs. 10 lakhs - Territorial 
Army Act, 1948 - Army Act, 1950 - Pension Regulations for the 
Army, 1961 - Circulars dated 11.6.1985, 3.2.1998 and 12.11.2008 
of Government of India, Ministry of Defence - Constitution of India 
- Art. 142. 
Disposing of the appeal, the Com1 
• 
HELD: 1. The terms and conditions of service of personnel 
belonging to the regular Indian Army and the personnel belonging 
to Territorial Army are governed by two different Acts. The 
former is governed by Army Act, 1950 while the latter is governed 
by the Territorial Army Act, 1948. In terms of Section 9 of 
Territorial Army Act every officer/ enrolled person, when called 
out or embodied or attached to the regular army shall, subject to 
suitable adaptation, be subject to the provisions of the Army Act 
417 
A 
8 
c 
D 
E 
F 
G 
H 
418 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
1950 and the rules and regulations made thereunder. When an 
enrolled person is in disembodied state, he is not subject to the 
Army Act and is not entitled to pay and allowances or other 
entitlement as also medical allied benefits. Also their 
disembodiment period is not counted as a qualifying service even 
for service pension. When the Territorial Army personnel are in 
a disembodied state, then the Territorial Army Act, 1948 governs 
their service conditions and this is the statutory scheme. Thus, 
as per the existing rules, no family pension is payable to the legal 
heir of a territorial army personnel who died during disembodied 
state and who has not put in pensionable service. [Paras 10 and 
16] [423-C-E; 425-G] 
2. In the present case, it is an admitted position that the 
deceased was disembodied on 31.03.2008 much before the new 
Pension Regulations for the Army, 2008 came into effect. 
Therefore, he was not in service on 01.07.2008 and hence new 
regulations cannot be pressed into service. The new regulations 
are applicable only to those who were in service as on 01.07.2008 
or thereafter. Therefore, the claim of the appellant cannot be 
tested on the new Pension Regulations for the Army, 2008. The 
entitlement of the appellant to family pension has to be examined 
in the light of the provisions of the Pension Regulations for the 
Army, 1961 read with Government of India, Ministry of Defence 
circulars dated 11.06.1985, 03.02.1998 and lastly circular dated 
12.11.2008.[Paras 15 and 16) [425-D, E) 
3. The rule that no family pension i~ payable to the legal 
heir .. of a territorial army personnel who died during disembodied 
state and who has not put in pensionable service, has led to a 
patent anomaly. Such anomaly was pointed out by Major, Addi. 
Offr./TA-3, TA DTE, GS Branch in his inputs for VJ'h Pay 
G<>mmission dated 09.03.2007 thereby recommending to do the 
needful to render fair treatment to Territorial Army personnel. 
Even though the anomalies have been taken note of by the 
concerned authorities, the respondents have not so far taken 
any decision to rectify the anomalies to give fair treatment to the 
Territorial Army personnel by granting family pension to 'next of 
kin' of Territorial Army personnel who die while in disembodied 
state. Territorial Army personnel actually remain on rolls till they

Excerpt shown. Read the full judgment & AI analysis in Lexace.