N. Paul Vasanthakumar, J.

1. Heard Mr.Perumbulavil Radhakrishnan, learned counsel for the petitioner and Mr.Haja Mohideen Gisthi, learned counsel for the respondents.

2. This Writ Petition is filed to quash the order of the first respondent issued in G.O.I No.1(9)/2006/D (pen-c) dated 30.8.2006 and for a direction to the respondents to pay pension due to the petitioner from 19.4.1971 with interest at 8% per annum.

3.1. The case of the petitioner is that after pre-commission training in Poone, he was commissioned as an Emergency Commissioned Officer with the rank of Second Lieutenant in the Artillery Regiment of the Indian Army on 3.5.1964. While on active service in field area, the petitioner sustained a major injury on 26.3.1965 attributable directly to military duty. He was retained in low medical category until 19.4.1971 when he was medically boarded out of service by a Release Medical Board and at that time the petitioner attained the rank of Captain and had put in 6 years 11 months and 15 days of service.

3.2. According to the petitioner, initially the Under Secretary, Ministry of Defence by order dated 7.7.1975 sanctioned pension to the petitioner counting pensionable service for 327 days, i.e., upto the date of injury. After prolonged correspondence and representations for about 28 years, the second respondent by letter dated 28.9.1999 issued orders reckoning the period of entire service of 6 years 11 months and 15 days for pension.

3.3. The second respondent further decided by an order dated 8.1.2010 that the service element of disability will be notionally fixed from the date of commencement of pension, i.e., from 19.4.1971. However, pension will be calculated based on the minimum pay scale i.e., the pay on the date of joining service. The second respondent also decided that no arrears of pension or interest will be payable, thus effectively blocking 40 years of pension, except for 327 days, i.e., the accident free service.

3.4. The petitioner approached the Armed Forces Tribunal, Regional Bench, Chennai by filing Original Application No.37 of 2011. The Tribunal by order dated 4.11.2011 ordered that while calculating the qualifying service for the service element of disability pension, the qualifying service of 6 years 11 months and 15 days is to be reckoned as 7 years plus weightage as per Rules and not 6.5 years as calculated by the respondents by order dated 30.8.2006, wherein it was also stated that no arrears of pension will be payable. The Tribunal further held that it has no jurisdiction to go into the validity of the order passed on 30.8.2006 and granted liberty to the petitioner to challenge the order dated 30.8.2006 before the appropriate forum within 3 months by order dated 4.11.2011. As per the liberty granted, the petitioner has filed this Writ Petition contending that this Court alone is vested with the jurisdiction to go into the validity of the order dated 30.8.2006 and further contended that 6 years 11 months and 15 days is to be counted for 7 years completed service apart from weightage service of 9 years.

4. The respondents have filed counter affidavit stating that the Writ jurisdiction is the only remedy available to the petitioner to challenge the order dated 30.8.2006 as the Armed Forces Tribunal cannot decide the validity of the said order. In the light of the stand taken in the counter affidavit filed on behalf of the respondents dated 19.11.2013 as well as the order passed by the Tribunal granting liberty to challenge the order before the appropriate forum, we have decided to go into the merits of the contention raised by the parties.

5. It is not in dispute that the petitioner served for 6 years 11 months and 15 days before he was medically discharged from the Army. How the broken period of service to be counted for pensionable service was decided by the respondents and it was assured that with effect from 22.4.1960, service rendered for 180 days or more was taken as half year