Can the Government challenge an Armed Forces Tribunal order under Article 226 after allowing the statutory appeal period to expire?

The Kerala High Court has recently dealt with an important question affecting litigation before the Armed Forces Tribunal (AFT): whether the Union of India can allow the statutory period for challenging an AFT order to expire and thereafter approach the High Court under Article 226 of the Constitution.

In Union of India v. Lt. Col. Sunny Thomas (Retd.), W.P.(C) No. 6230 of 2024, decided on 10 September 2026, the Kerala High Court dismissed the Union Government’s challenge to an AFT Kochi order granting disability pension. The judgment is important not only for disability pension law but also for the manner in which AFT orders can be challenged before High Courts. 

Background of the case

Lt. Col. Sunny Thomas joined the Army on 31 January 1970 and retired on 8 November 2005.

His Release Medical Board assessed him as suffering from Primary Hypertension at 30% for life. Significantly, the Medical Board itself held that the disease had been aggravated by military service because of stress and strain.

Despite this medical opinion, the adjudicating and appellate authorities denied him the disability element of pension.

He therefore approached the Armed Forces Tribunal, Regional Bench, Kochi. On 6 April 2023, the AFT directed the authorities to grant him disability pension at 30%, rounded off to 50%, subject to the limitation regarding arrears. 

The Union of India challenged that AFT order before the Kerala High Court.

The important limitation issue

The AFT passed its order on 6 April 2023.

The Union of India filed the writ petition only on 14 January 2024.

The Kerala High Court noted that Section 30 of the Armed Forces Tribunal Act, 2007 prescribes 90 days for filing the statutory appeal against an order of the Tribunal.

The High Court therefore examined whether Article 226 could be invoked after the statutory challenge had effectively become barred by limitation.

The Court held that the extraordinary writ jurisdiction of a High Court cannot ordinarily be used to “resurrect a cause of action” which has become unenforceable because of limitation. 

This part of the judgment is particularly important for AFT practitioners.

But can AFT orders still be challenged before a High Court?

Yes.

There is an important distinction.

In Union of India v. Parashotam Dass, decided by the Supreme Court in 2023, the Court clarified that the constitutional jurisdiction of High Courts under Article 226 cannot be completely excluded merely because an order has been passed by the Armed Forces Tribunal.

The Supreme Court held that judicial review under Article 226 is part of the basic structure of the Constitution and that High Courts can examine AFT decisions in appropriate cases. 

Therefore, Sunny Thomas does not mean that a High Court has no jurisdiction over an AFT order.

The real principle is more limited and practically important:

Article 226 should not become an alternative appellate mechanism merely because a party allowed the statutory remedy and its limitation period to expire.

Why this distinction matters

Suppose an AFT order is passed against the Government.

The statutory framework gives a particular period to pursue the remedy available under the AFT Act.

If the Government takes no action for several months and then files a writ petition, the affected soldier or veteran can now raise a serious preliminary objection:

Why should extraordinary constitutional jurisdiction be exercised to revive a challenge which was not pursued within the statutory period?

That objection becomes particularly strong where:

• there is no satisfactory explanation for the delay;
• the AFT order has already created pension or service rights;
• the Government had knowledge of the order;
• implementation has been withheld merely because officials subsequently decided to litigate; and
• the writ petition substantially seeks rehearing of the merits rather than correction of a jurisdictional or constitutional error.

Disability pension issue was also decided in favour of the officer

The judgment is equally important on disability pension.

The Court noted that there was no disease recorded at the time of entry into military service.

The Release Medical Board subsequently assessed Primary Hypertension at 30% for life and itself attributed aggravation to military stress and strain.

The Court applied the principles laid down by the Supreme Court in:

Dharamvir Singh v. Union of India, (2013) 7 SCC 316;
Sukhvinder Singh v. Union of India, (2014) 14 SCC 364;
Bijender Singh v. Union of India, 2025 SCC OnLine SC 895; and
Rajumon T.M. v. Union of India, 2025 SCC OnLine SC 1064.

The Kerala High Court reiterated that where no disease is recorded at entry, statutory presumptions operate in favour of the member of the Armed Forces, and the burden shifts to the employer to establish why the disease should not be treated as attributable to or aggravated by service. 

The Court also emphasised that an unreasoned medical conclusion or a general description of a condition as a “lifestyle disease” cannot automatically defeat a pension claim. 

Practical importance for Armed Forces Tribunal cases

The judgment gives advocates appearing before the AFT and High Courts an additional line of defence when an old AFT judgment is challenged belatedly.

In an appropriate case, the respondent should specifically plead:

date of the AFT order;
date on which the Government received it;
expiry of the statutory appeal period;
absence of satisfactory explanation for delay;
whether the order was partly implemented; and
prejudice caused by prolonged non-implementation.

Limitation should therefore not be treated merely as a technical objection. In pension litigation, it can affect the finality of rights already declared by a judicial tribunal.

What veterans should understand

A favourable AFT judgment should not remain uncertain indefinitely merely because the Government later chooses to litigate. The constitutional power of a High Court remains available, but that power is discretionary. Sunny Thomas makes it clear that constitutional jurisdiction should not ordinarily be used as a device for circumventing a statutory limitation period.

Conclusion

Union of India v. Lt. Col. Sunny Thomas (Retd.) is an important development in military service law for two reasons. First, it strengthens the established law relating to disability pension, attributability and aggravation of disease during military service. Second, it sends an equally significant procedural message:

A party cannot ordinarily sleep over the statutory remedy against an AFT order and then expect Article 226 to automatically revive the dispute.

For soldiers and veterans who have already succeeded before the AFT, this aspect of the judgment may prove particularly important in resisting delayed challenges and prolonged non-implementation.