Subordinate legislation can be challenged in terms of its constitutionality, but initial recourse must be to the appropriate tribunal, not High Court.

JUDGMENT

The petitioners were working with Defence Security Corps (DSC), after they have been discharged from the Indian Army. Admittedly, respective petitioners did not have the minimum 15 years of service in DSC so as to avail pension under the provisions of the Pension Regulations for the Army, 2008. Some of the petitioners have a case that their prior service in the Army also requires to be reckoned and with that prayer, the petitioners had already approached the Armed Forces Tribunal and since the decision went against them, the petitioners have already filed writ petitions before this Court and those writ petitions are pending consideration before a Division Bench of this Court as specifically averred in paragraph 5 of the writ petition. However, through this writ petition, the petitioners seek to challenge the provisions of the Pension Regulations for the Army, 2008, more particularly Paragraph 47 thereto as unconstitutional. They also seek for a declaration that they are entitled for service pension without insisting for the 15 years of service in DSC with reference to the provisions of the Pension Regulations for the Army, 2008.

2. Heard Sri.B. Harish Kumar, the learned counsel for the petitioners, as well as Sri.N.S.Daya Sindhu Shree Hari, the learned Senior Panel Counsel for the respondents.

3. A counter affidavit has been filed on behalf of the respondents, wherein a preliminary objection as regards the maintainability of the writ petition is raised, contending that it is for the petitioners to approach the Tribunal.

4. However, Sri.B.Harish Kumar, the learned counsel for the petitioners would rely on the judgment of the constitution bench of the Apex Court in L. Chandra Kumar vs Union Of India And Others ( AIR 1997 SC 1125 ) to contend that the writ jurisdiction of the High Court is not ousted as specifically laid down by the Apex Court in Paragraph 93.

5. I have considered the preliminary objection raised by the Senior Panel Counsel on behalf of the respondents as also the explanation offered by the learned counsel for the petitioners.

6. In paragraph 93 of the judgment of the Apex Court in L.

Chandra Kumar's case (supra), it has been categorically found as under:-

“93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly app