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Judgment
This application has been filed under Rule 25 of the Armed Forces Tribunal (Procedure) Rules, 2008 read with Section 151 of the Code of Civil
Procedure, 1908 seeking clarification/modification of the order passed by this Tribunal on 29.12.2015 in O.A. No. 583 of 2014. The prayers made in
this application read as under :
(a) Clarify/ modify the Order dated 29.12.2015 passed by this Hon’ble Tribunal in OA No. 583/2014 to the effect that the Applicant shall not be denied the benefit
of the amended Policy dated 29.11.2018, 29.07.2020 and AO 06/2020/AG/DV dated 17.07.2020 if the same is otherwise applicable to him only on the ground that the
Applicant has earlier approached this Hon’ble Tribunal and this Hon’ble Tribunal has not interfered in the order passed by the Respondents in terms of Order
dated 29.12.2015.
(b) or in alternate, issue directions to the Respondents to modify and reduce the maintenance calculated on the basis of net income of the applicant keeping in view
of all standard and mandatory deductions and other financial liabilities of the applicant and to fully comply with the policy letters dt 29.11.2018 and 29.07.2020 under
reference.
(c) Grant the excess amount in view of Policy letter dated 29.11.2018, deducted from the pay of the Applicant subsequent to the aforesaid policy and the same be
recovered from the Respondents due to their arbitrary and discriminatory actions.
(d) Issue any other/further direction as this Hon’ble Tribunal may deem fit in the facts and circumstances of the case.
O.A. No. 583 of 2014 was filed on 10.11.2014 by the applicant, Maj Aman Deep Raj (Now Lt Col), and in the said application, he had impugned
the order passed by the Competent Authority on 10.09.2014 granting maintenance allowances to Respondent No. 5 at the maximum possible rate of
22% of his pay and allowances and to the son of the applicant at the rate of 5%.
While hearing the matter, a Coordinate Bench of this Tribunal on 29.12.2015 found that the claim of the applicant has been decided in accordance
to the policy that was existing at that point of time. It was the considered opinion of the Bench that maintenance was granted to the wife of the
applicant by following the due process of law in a legal and procedural correct manner and it was also found that Army Order 02/2001 has been
correctly followed and there is no requirement of holding it to be violative of any law. However, now from the facts that have come on record, we find
that in the matter of granting maintenance to wives and wards of the officers, the Adjutant General Branch in the Integrated Headquarters, Ministry
of Defence on 29.07.2020 has issued guidelines on methodology for disposal of the maintenance allowances cases where maintenance has been
granted prior to issuance of Advisory on 29.11.2018, particularly with regard to the final duration clause for grant of maintenance. It is seen that in the
Advisory passed on 29.11.2018, the time period for which the maintenance has to be granted is indicated in Para 4, wherein the following stipulations
are laid down :
“4. Based on suggestion recd from environment following procedure is suggested to be followed for maint cases decided prior to 29 Nov 18 :-
(a) Notice be issued to all affected pers highlighting approval for fresh policy by GOI wherein sanction for maint allce needs to be accorded for a duration of 3
yrs extendable to max 5 yrs. Importance of approaching Civ Court of law for final settlement of the case be emphasized.
(b) The affected pers be asked to submit fresh affidavit with regard to dt of filing of Court case and present posn of the same within three months of issue of the
Notice. In case no reply is recd within stipulated time, a reminder be issued for reply within a fresh time period of two months.
(c) It is recom that after the issue of the letter to the spouse who have been getting maint allce for prior to 29 Nov 18 a pd of one yr be granted to settle the case
through civ court.
(d) However, if relief is provided by the Court earlier than that, then the grant of maint allce by the Army auth, will cease immediately on occurrence of such an
order.â€
[Emphasis supplied
]
It is the case of the applicant that in accordance to the modified procedure, the applicant sought for discontinuing the maintenance granted to his
wife on the ground that she has received the maintenance for the period which is prescribed as per the policy. The claim of the applicant was
recommended by the General Commanding Officer vide the annexure filed collectively as Annexure A-4 available on record at Pages 88 and 89.
However, the respondents have not cared to decide the same on the ground that the applicant is advised to approach the appropriate judicial forum for
obtaining a judicial order for alteration in the maintenance allowances granted to her and her son. Annexure A-5 is the order passed in this regard on
27.08.2021.
According to the submissions made by Shri Pandey, in O.A. No. 583 of 2014, when the issue was decided by this Tribunal on 29.12.2015, it was
decided on the basis of the policy that was existing at that point of time but subsequently, by advent of a new policy and methodology which was
issued by the Advisory dated 29.11.2018 and clarified vide guidelines on 29.07.2020, Respondent No. 5- wife and her son are only entitled to
maintenance for a particular period of time and not beyond that and they are required to settle the matter by approaching the court of competent
jurisdiction in accordance with law.
Grievance of the applicant is that now in the garb of the order passed on 29.12.2015 in O.A. No. 583 of 2014, the respondents are refusing to
decide the representation/application of the applicant and make applicable the modified policy which came into force three years after O.A. No. 583
of 2014 was decided and guidelines were issued in the year 2020.
Shri Anil Gautam, learned counsel for the respondents, submits that as the case of the applicant for grant of maintenance to his wife and son was
decided by this Tribunal in O.A. No. 583 of 2014 on 29.12.2015, the respondents cannot decide the issue now as the dispute between the parties
stands settled by virtue of order passed in O.A. No. 583 of 2014. He further submits that without hearing the private respondent, namely Respondent
No. 5, wife of the applicant, in the OA and the son, no directions can be issued.
We are also informed that based on the subsequent policy that has come into force, a show cause notice was issued to Respondent No. 5, wife, and
the son indicating to them as to why on the change of the policy, the liability to pay maintenance should not be curtailed further that after issuance of
notice, the wife has informed the respondents that she has already initiated judicial proceedings in the court of competent jurisdiction at Karkardooma
and it is informed that the respondents have not taken any final decision in the matter.
Keeping in view all these facts and circumstances which have come on record, we are of the considered view that if the policy for grant of
maintenance and the duration for which maintenance should be granted by virtue of administrative order passed under the rules and procedure
applicable to the respondent establishment is changed, the order passed by this Tribunal in O.A. No. 583 of 2014 on 29.11.2015 will not come in the
way of the respondents in taking a fresh decision in the matter based on the policy as has come into force subsequently.
In our considered view, the decision rendered in O.A. No. 583 of 2014 on 29.12.2015 was based on the policy that was existing at the relevant
point of time and now if the policy has changed and the administrative order with regard to grant of maintenance warrants reconsideration or change
in the light of the changed policy or circumstances as is the case of the applicant, that he is entitled to the benefit now accruing to him by virtue of the
changed policy. There is such a situation that the law mandates the respondents to consider the representation/application of the applicant in
accordance with law based on the changed policy, hear Respondent No. 5, wife of the applicant, if not already noticed or heard. and thereafter take a
decision in the matter within a reasonable period of time and the order dated 29.12.2015 passed in O.A. No. 583 of 2014 will not come in the way of
the respondents in deciding the claim raised by the applicant now in the backdrop of the changed circumstances and changed policy which has been
implemented.
Accordingly, without entering into the controversy on merit and without expressing any opinion on the merit of the contentions raised at the time of
hearing, we direct the respondents to consider the claim of the applicant, hear Respondent No. 5, wife of the applicant, in O.A. No. 583 of 2014, if not
already heard, and pass a speaking order in the matter within a period of 45 days from today and to communicate it to the applicant as the order
passed by the Tribunal on 29.12.2015 in O.A. No. 583 of 2014 will not come in the way of the respondents in doing so.
Needless to emphasise that if the applicant or Respondent No. 5 or any other person is aggrieved by the order so passed, they will have the liberty
to challenge the same in accordance with law.
With the aforesaid, MA stands disposed of.
Copy of this order be given “Dasti†or by e-mail to the counsel for the parties.