When the Government Calls It a Regulation: The Unanswered Questions in Military Pension Law : Pension Regulations of the Army 2008.

-by Atul Singh, Advocate

There are occasions when litigation does not merely decide the rights of the parties before the Court. There are occasions when a judgment exposes a much larger question which the system had perhaps avoided for decades. The order of the Armed Forces Tribunal, Principal Bench, in a Review Application by Ex-Sawar Sanjay Kumar, is one such order.

That said case was ostensibly about Regulation 179 of the Pension Regulations for the Army. But beneath the dispute regarding the correct wording of Regulation 179, wherein two different versions of the said Regulation 179 came before the Tribunal, was a far more fundamental question as to what exactly is the legal character of the Pension Regulations for the Army?

Are they Regulations made under the Army Act, 1950, having statutory character, or are they merely executive instructions issued by the Government in exercise of its executive power?

That question assumes considerable importance because the Government routinely relies upon the Pension Regulations as the source of pensionary entitlement as well as the source of exclusion from such entitlement, just as they have arbitrarily excluded Officer Cadets.

But when the legal foundation of the Regulations themselves is questioned, the position becomes considerably less straightforward.

That is precisely where the order in Ex-Swr Sanjay Kumar becomes important, not for what was held but for what the said proceedings unfolded. The facts before the Tribunal were extraordinary and alarming, to say the least, when the question arose as to which of the two Regulations was the correct Regulation.

While one version appeared in books published by private persons and had been relied upon for decades by litigants, advocates, Tribunals and Courts, another version was produced by the Union of India, which claimed that the version produced by it was the correct and authentic provision.

That meant that a provision which had been treated as law for decades was suddenly being questioned by the Government itself. The question that arises is: why was it not done at the first instance?

The Tribunal recorded that various High Courts, Tribunals and even the Hon’ble Supreme Court had, over the years, dealt with several hundred, and perhaps thousands, of cases in which the version of Regulation 179 appearing in the privately published books had been relied upon as the true and correct version.

The question, therefore, was not merely whether one pensioner had been granted an incorrect benefit. The question was whether the law governing pension had itself been consistently and authoritatively available to the persons who were required to administer it, the persons who were required to comply with it, and the Courts which were required to interpret it.

Now, that is a very serious question.

That it is precisely at this stage that the statutory scheme of the Army Act, 1950 becomes relevant.

Section 3(xxii) defines that “Regulation” includes a regulation made under this Act.

Section 3(xvi) provides that “notification” means a notification published in the Official Gazette.

The Central Government is empowered to make rules under the Army Act, 1950 under Section 191 of the Army Act. Likewise, Section 192 of the Army Act, 1950 empowers the Central Government to make Regulations for the purposes of the Act.

Therefore, the Central Government can make both rules and regulations. However, merely by making the rules or regulations for the purpose of the said Act, the mandate of the Central Government does not get over.

The same very Act provides how and when these regulations will come into effect. Under Section 193, the Central Government is obligated to publish rules and Regulations made under the Act in the Official Gazette and further provides that, upon such publication, they shall have effect as if enacted in the Act, thus granting statutory provenance, i.e. the legal origin or source of authority of a rule or regulation, as the case may be.

Therefore, before the Pension Regulations can be relied upon to deny a pensionary entitlement, the Central Government must establish their statutory provenance, i.e. the precise source of legislative or delegated authority, the manner in which they were made, and the statutory requirements governing their publication and operation.

One such example of notification would be the Army Rules, 1954. In exercise of the powers conferred by Section 191 of the Army Act, 1950 (46 of 1950), the Central Government made the Army Rules, 1954, which were published vide Ministry of Defence Notification No. S.R.O. 484, dated 27th November, 1954, published in the Gazette of India, Part II, Section 4, dated 27-11-1954, pp. 291-378, No. 47.

It was thus imperative that the Pension Regulations, 1961 were notified in accordance with law. The said Pension Regulations, 1961 were superseded by a new set of Pension Regulations, being the 2008 Pension Regulations. The said Regulations were also required to comply with Rule 193.

Between 1961 and 2008, another change took place. The Army Act came to be amended, and Section 193A was inserted by of the said amendment, which further mandated and provided for the laying of every Rule and Regulation made by the Central Government under the Act before each House of Parliament.

These provisions are not decorative provisions, for the mere namesake. They prescribe the manner in which subordinate legislation under the Army Act is to be made and brought into operation.

That becomes important because the Union of India itself took a position before the Tribunal that the Pension Regulations for the Army, 1961 and 2008 were not statutory Regulations framed under the Army Act, 1950, but were issued in exercise of the executive power of the Government under Article 73 of the Constitution.

That said stand of the Government invariably creates an obvious legal dilemma: if the Pension Regulations are Regulations under the Army Act, then the provisions of the Army Act governing the making, publication and parliamentary laying of such Regulations become relevant.

If, on the other hand, they are merely executive orders issued under Article 73, then they cannot automatically be treated as statutory subordinate legislation merely because the Government chose to call them “Pension Regulations”. This creative expression of the bureaucratic pen deciding a particular nomenclature, as they do it for the Officer Cadets, by granting them the ‘Pay’ and calling it ‘Stipend’, and using the nomenclature of ‘ex-gratia’ for ‘disability pension’, or, as in this case, calling executive orders “Pension Regulations”, cannot determine the source of legal authority or its legal character/status.

If they are statutory Regulations, the statutory procedure must be established. However, if they are executive instructions, they remain executive instructions and are subject to judicial review, including scrutiny under Article 14 of the Constitution, and the entitlement/disentitlement of those who have served in uniform, laid down their lives or become disabled cannot be left at the mere sweet will of a bureaucratic pen.

That is not a technical distinction, and it goes to the very root of the power of the State to grant or deny pensionary benefits.

The Tribunal in Sanjay Kumar specifically noticed that the Union of India had considerable difficulty in producing an authentic copy of the Pension Regulations, 1961, together with the amendments allegedly made from time to time.

The Tribunal went further. It noticed that there was no authentic publication of the Regulations by the Government and that different versions of provisions were appearing in different publications. It also noticed that various Government orders, Army Instructions, Air Force Instructions and Navy Instructions were being produced which purported to modify pensionary provisions.

The Tribunal expressed serious concern about how such modifications could be carried out and whether the necessary authority and procedure had been followed. One does not need to be legally qualified to appreciate the problem.

Imagine being a disabled soldier who has served the country and is asked to establish his pension entitlement. He is told that his pension is governed by a particular Regulation. He asks for the Regulation. He is asked to cite a pension regulation, given in a book, only to discover that another book contains a different provision.

The Government says that the provision in the book relied upon by him is wrong, while itself being unable to produce an authentic version, but stating that its version is correct. The said controversy was put to rest by calling upon the Union to file an affidavit to substantiate the same on oath.

This is not merely a dispute about printing. This is a question concerning the rule of law. If the statutory law mandates something to be done in a particular manner, it has to be done in only that manner. These provisions are obligatory.

That is why one of the most important observations in Sanjay Kumar was, as held by the Hon’ble Supreme Court in numerous judgments, that pension is not charity or bounty but a right earned by rendering service.

The Tribunal further emphasised that laws governing pension should be clear and unambiguous. That principle deserves to be repeated because pension is not a discretionary favour which the Government may distribute according to administrative convenience. A person who has acquired a pensionary entitlement is also entitled to know the legal framework by which that entitlement is determined.

And where the Government seeks to deny that entitlement, the source of the exclusion must be capable of being identified and must have the requisite statutory provenance. This becomes even more important where the denial is based upon an alleged exclusion from the pensionary framework.

The question cannot simply be whether the Government has, for years, followed a particular practice. The question is whether that practice has a lawful source. Administrative practice cannot become law merely because it has been followed for a sufficiently long period.

An executive instruction cannot become statutory legislation merely because it has been printed in a book in a certain manner and followed in a certain manner. And a document cannot acquire the force of subordinate legislation merely because it bears the title “Regulations”.

The Tribunal, however, did not finally decide or declare that the Pension Regulations, 1961 or 2008 were non-statutory, as the Tribunal was exercising review jurisdiction and considered that deciding the entire controversy would go beyond the scope of that jurisdiction.

This order reminds us that pension law cannot rest upon uncertain versions, inaccessible instructions, unexplained amendments or nomenclature alone.

The Government may frame policy. The Government may regulate service conditions. The Government may determine pensionary schemes within the authority available to it. But every exercise of governmental power must ultimately answer one question: What is the source of that power and the legal validity of the said action?

And when that power is used to deny a person a substantive pensionary benefit, the answer must be found not merely in an administrative book, but in law.

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