P.K. Kapur Vs. Union of
India and others
 Insc 81 (1 February 2007)
Dr. Arijit Pasayat & S. H. Kapadia
By filing writ petition in the Delhi High Court, petitioner (appellant
herein), a retired Lieutenant Colonel (Time Scale), sought weightage of 8 years
to be added to the actual qualifying service as also enhancement of percentage
of disability, in short, he asked for refixation of the pension.
The facts giving rise to the writ petition are as follows.
In 1962 appellant was commissioned as an officer in Indian Army. This was
during National Emergency created by Chinese invasion. He was an officer in the
Sikh Light Infantry.
In 1965 while fighting in Jammu and Kashmir sector against Pakistani troops
appellant got a shell injury in his left shoulder. After war, he was retained
in service, granted permanent commission and allowed to work till 30.11.89 when
he was released on superannuation on completion of 51 years of age after
putting in qualifying service of 26 years. Before his retirement appellant was
subjected to examination by the Medical Board which assessed the appellant's
war injury disability at 30%, permanent for life.
During the period 30.11.89 to 25.10.99 the appellant was given 8 years
weightage (in years) to be added to his qualifying service in order to compute
his service pension.
He was also notified for war disability pension for which he was paid
arrears with effect from 30.11.89.
At this stage, it may be noted that the Report of the Fourth Pay Commission
came on 30.10.87. As stated above, appellant retired on 30.11.89. When he
retired, in 1989, he was allowed weightage of 5+3 (in years) in order to
protect his pension. He was entitled to weightage of 5 but since his pension
fell below that payable to a Major he was given an additional weightage of 3.
At the relevant time, till Fifth Pay Commission Report, there was integrated
pay scale in existence. Appellant was entitled to 5 years weightage under the
Fourth Pay Commission, however, because of integrated pay scale his pay became
less than a Major in the Indian Army with 5 years weightage admissible to
Lieutenant Colonel in the Time Scale (TS). Therefore, in order to protect his
pay he was given an additional weightage of 3 years so that his pension
remained more than that of a Major. Appellant enjoyed the benefit of 8 years
weightage for 10 years between the date of his retirement on 30.11.89 and
25.10.99. However, after Fifth Pay Commission Report appellant was informed
that calculation of pension will be done on the basis of last rank held by him
and on the basis of revised pay scale introduced under Fifth Pay Commission
Report with effect from 1.1.96. With the revision in pay scale appellant was
given the original weightage of 5 years because after the Report of the Fifth
Pay Commission the salary structure was so revised under which the pension
payable to a Lieutenant Colonel (TS) became more than the pension payable to a
Major and consequently the protected weightage of 3 (8-5) stood withdrawn. This
has been challenged by the appellant.
As stated above in the writ petition, the appellant also claimed enhancement
of percentage of disability. According to the appellant, under Government of
India, Ministry of Personnel, vide Circular No.45/22/97-P&PW(C) dated
3.2.2000, the percentage of disability stood enhanced from 30% to 50% in case
of junior officers in the armed forces who were in service on 1.1.96. Appellant
contended that he was also entitled to such enhancement and that Government of
India was not entitled to discriminate in this regard junior officers who
retired before 1.1.96 and those who are in service on or after 1.1.96.
Both these challenges failed as can be seen from the impugned judgments of
the High Court in W.P. (C) No.268/2001 dated 8.11.2004 and Review Petition
No.438/2004 dated 15.12.2004. Hence, this civil appeal.
Appellant appeared in-person. On the first point he submitted that he was
given a weightage of 8 for 10 years between 1989 and 1999 and there was no
reason for reducing the weightage from 8 to 5 after the Report of the Fifth Pay
Commission. He submitted that on account of the above reduction in weightage he
has suffered a monetary loss of Rs.445 per month. He submitted that the policy
of the Government giving weightage, to be added to the actual qualifying
service rendered for computation of service pension, was arbitrary and
discriminatory having no nexus with the object sought to be achieved, namely,
equal opportunity of earning full pension. He submitted that other Ranks except
that of Lieutenant Colonel (TS) are given the benefit of 58 years for
computation of pension by adding the weightage of number of years to the
prescribed retirement age and thus he was not given equal opportunity of
earning full pension in relation to other Ranks. This, according to the
appellant, was discriminatory. The appellant further submitted that there was
no reason for Government of India to prescribe different weightage for
different Ranks. He submitted that fixation of 5 years weightage in his case
for computation of service pension was against the basic object having no
rational relation with the object of enabling him to get 33 years of qualifying
service to earn full pension which has been denied due to comparatively early
retirement age in relation to his civil counterparts and in relation to senior
Thus, according to the appellant, the policy of fixing different weightages
for different Ranks was arbitrary and violative of Article 14 since the said
policy fails to comply the twin tests, namely, that the classification must be
founded on an intelligible differentia which distinguishes those that are
grouped together from others and that differentia must have a rational relation
to the object sought to be achieved by the Act. In this connection, the
appellant placed reliance on the judgment of this Court in the case of B.S.
Nakara v. Union of India AIR 1983 SC 130. Appellant submitted, in this
connection, that the standard length of qualifying service for entitlement of
full pension has been fixed at 33 years for all civilian and service officers.
Previously it was not so. Previously it depended upon the Rank in question.
Appellant submitted that, however, now the retirement age of the service
officers varies from 50 to 52 years, in the case of junior officers, compared
to their civilian counterparts who retire at the age of 58 years and as
compared to senior officers in the Army who retire at the age of 60. In order
to remove this disparity, according to the appellant, weightage was granted in
terms of number of years to be added to the actual qualifying service rendered
so that junior officers get equal opportunity of benefit of 33 years of service
for entitlement of full pension. Appellant submitted that reducing the
weightage in his case from 8 years to 5 years, after the Report of the Fifth
Pay Commission, was discriminatory as he is deprived of equal opportunity of
earning full pension admissible on completion of 33 years of service. In this
connection, he has placed reliance on a table/chart submitted by him in the
special leave petition paper book at page 29. Placing reliance on this chart,
he submitted that all other Ranks in the Army are getting benefit of 58 to 60
years of qualifying service for pension by an addition of weightage comprising
of the number of years whereas in the case of Lieutenant Colonel (TS) the
qualifying service on addition of 5 years weightage comes to 56 years for
pension and, therefore, the impugned policy in O.M. No.1(S)/87/D dated 30.10.87
was totally arbitrary and violative of Article 14 of the Constitution. He
submitted that the appellant who retired as a Lieutenant Colonel in the time
scale got the benefit of 5 years of service (51+5) while other junior and
senior Ranks got the benefit of 58 to 60 years for pension.
We do not find any merit in the above submission made by the appellant on
the first point for the following reasons.
Firstly, under O.M. dated 30.10.87 the expression "qualifying
service" has been defined to mean actual qualifying service rendered by an
officer plus a weightage (in years) appropriate to the last Rank held by the
officer subject to the total qualifying service including weightage not
exceeding 33 years. It is interesting to note that under the said O.M. dated
30.10.87 Lieutenant Colonel (TS) in the Army, Commander (TS) in the Navy and
Wing Commander (TS) in the Air Force are all given weightage of 5. Further, the
very definition of the word "qualifying service" in the O.M. dated
30.10.87 indicates that the weightage (in years) is given appropriate to the
last Rank held. In other words, weightage has a nexus with the Ranks. Further,
the definition of the word "qualifying service" also indicates that
there is a ceiling/outer limit placed on the amount of pension payable which
will not exceed the total qualifying service of 33 years. Applying this O.M. to
the facts of the present case we find that appellant was all throughout
entitled to weightage of 5 but at the relevant time when he retired in 1989
there existed what is called as integrated pay scale. The consequence of the
integrated pay scale was that with 5 years weightage the appellant was entitled
to pension the quantum whereof was less than that of a Major. To protect his
pension, the appellant was given a weightage of 3 additional points (in years).
At this stage, it may be clarified that the appellant retired on 30.11.89 after
completing actual qualifying service of 26 years. With the weightage of 8, the
total qualifying service became 34 and, therefore, in effect he was given a
weightage of 7 because, as stated above, under the O.M. dated 30.10.87 the
qualifying service could not got beyond the ceiling of 33 years. However, with
the coming into force the Fifth Pay Commission, Government of India had to
refix the pension because under the Report of the Fifth Pay Commission there
was a revision of pay scale introduced with effect from 1.1.96 for the Rank of
Lieutenant Colonel and other Ranks.
Further, after the Fifth Pay Commission the integrated pay Scale system was
abolished and a separate pay scale was provided for Lieutenant Colonel (TS)
with 5 years weightage which was there even under the Fourth Pay Commission.
The result was that the appellant's pay scale was revised under the Fifth
Pay Commission which was the basis for qualifying pension. Consequently, the
pension of Lieutenant Colonel (TS) even with the weightage of 5 years became
more than the pension admissible to Major with the weightage of 8 years. In
this connection, a chart has been submitted by the Union of India which
indicates Rs.6400/- per month to be pension for a Major with 33 years service
including 8 years weightage whereas pension admissible to Lieutenant Colonel
(TS) with 31 years of qualifying service including 5 years weightage to be
Rs.6905/- per month.
Therefore, after the Fifth Pay Commission, on account of increase in the pay
scales, pension admissible to Lieutenant Colonel (TS) with 31 years of service
including 5 years weightage is more than the pension admissible to a Major with
33 years service including 8 years weightage.
Therefore, there is no loss to the appellant as alleged.
Appellant claims 8 years weightage even after Fifth Pay Commission under
which his salary has been revised. He claims weightage of 8 to be added to the
actual service rendered by him so that his qualifying service becomes 33 and he
claims accordingly a pension at the rate of Rs.7350/- per month whereas he is
entitled to Rs.6905/- per month. Therefore, there is no loss suffered by the
appellant as alleged. Appellant is getting pension which is more than that of
the Major, therefore, he is not entitled to 8 years weightage. However, he has
been given a weightage of 5 years. In other words, the protected weightage of 3
points is removed because after Fifth Pay Commission he earns pension more than
that of the Major which was not there during the period 1989 to 1999. Secondly,
it is well settled in law that Article 14 permits class legislation and not
classification based on intelligible differentia which distinguishes those that
are grouped together from others and that differentia must have a rational
relation to the objects sought to be achieved by the Act. In the case of Union
of India v. P.N. Menon and others (1994) 4 SCC 68, this Court has held that
pay revision can invite a cut-off date. In matters of pay fixation it is the
pay commission which is entitled to take into account various parameters
depending upon the nature of posts, the pay scales attached to those posts, the
duties attached to those posts, the qualifications attached thereto, the manner
of calculating the retirement benefits etc. Both under Fourth Pay Commission
and Fifth Pay Commission the weightage of 5 is retained. Appellant was always
entitled to weightage of 5. He was given the weightage of 3 additional points
only to protect his pension. This protection was given because his pension was
falling below the pension admissible to a Major. Under Fourth Pay Commission
the Government followed integrated pay-scale system whereas under Fifth Pay
Commission not only the pay scales stood revised but a separate pay scale was
prescribed for Lieutenant Colonel (TS). The pay scale so prescribed was the
basis for computation of the pension. Be that as it may, even assuming for the
sake of the argument that Article 14 was applicable, the O.M. dated 30.10.87
clearly shows that the weightage had nexus with the last Rank and the period of
33 years qualifying service was an outer limit of qualifying service for
calculating pension. Further, the weightage of 5 is given under the said O.M.
to Lieutenant Colonel (TS) in the Army, Commander (TS) in the Navy and Wing
Commander (TS) in the Air Force. Therefore, weightage (in years) was given
under the said O.M. to the equivalent Ranks in Army, Navy and Air Force.
Therefore, there is no violation of Article 14 of the Constitution.
Now, coming to the second challenge concerning "enhancement of
percentage of disability", appellant has submitted that Government of
India had vide O.M. dated 3.2.2000 enhanced the percentage of disability for
Armed Forces officers including junior officers in service on or after 1.1.96.
Since, the appellant retired on 30.11.89 this enhancement of percentage of
disability was not admissible in the case of the appellant. Appellant submitted
that there was no reason for denying enhancement of percentage of disability to
junior officers in the Indian Army who retired prior to 1.1.96. Fixation of
this cut-off date of 1.1.96, according to the appellant, is arbitrary,
irrational and violative of Article 14 of the Constitution. Appellant submitted
that one of the facets of Article 14 is that it eschews arbitrariness in any
form. Appellant submitted that this Court in the case of Nakara (supra) has
observed that Article 14 condemns discrimination in any form. He submitted that
there is no rational for excluding officers from the benefit of enhancement
merely because they stood retired prior to 1.1.96. Appellant, therefore,
submitted that O.M. dated 3.2.2000 should be made applicable to officers who
have retired even prior to 1.1.96.
We do not find any merit in the above arguments. As stated above, appellant
stood superannuated from the Indian Army on 30.11.89. He was entitled to war
disability pension. He has been paid arrears on that basis on and from
30.11.89. Under Government of India letter No.PC 1(2)/97/D (Pen-C) dated
16.5.2001 the rate of war injury element for hundred per cent disability in
battle casualty cases has been prescribed. It is in accordance with the rates
mentioned in para 11.2 of the letter of Government of India No.1(2)/97/D
(Pen-C) dated 31.1.2001. Under O.M.
dated 3.2.2000 the benefit of enhancement of percentage of disability, and
not the rates, is given to officers who were in service on or after 1.1.96.
This enhancement is from 30% to 50%. Appellant claims this enhancement from 30%
to 50% in his case also. However, O.M. dated 3.2.2000 states that the said
enhancement shall be applicable only to those officers who stood invalided out
of service. This provision is not applicable to the appellant who retired on
superannuation prior to 1.1.96. Appellant was not invalided out of service. He
completed his normal tenure of service. The benefit of enhancement is given to
those officers who stood invalided out of service because their tenure of service
got cut due to invalidment on account of disability or war injury. Therefore,
the appellant does not fall in the category of invalidment. The Government is
always entitled to classify officers who stood retired vis-`- vis the officers
whose tenure of service got reduced due to invalidment. These are two distinct
and separate categories. Hence, there is no violation of Article 14 of the
It is lastly urged by the appellant that he has not been paid war injury
pension at the current rate. In this connection, he submitted that under the
rules for casualty pensioners invalidation from service is a necessary
condition for the grant of disability pension. If a person is released from
service in a lower medical category then what he was at the time of
recruitment, he would be treated as invalided from service. Appellant contended
that he was released in a lower medical category from service on 30.11.89 then
what he was at the time of recruitment and, therefore, he should be treated as
invalided from service with effect from the date of release for the purpose of
grant of disability pension.
We do not find any merit in the third submission.
Appellant retired on 30.11.89 on superannuation. He was never invalided. He
now claims to be invalided out of service. Having stood retired from service
after completing full tenure of service, appellant cannot now claim that he was
invalided out of service. The concept of invalidment applies to cases in which
the tenure of service is cut short due to invalidment on account of war injury
The concept of invalidment does not apply to cases where an officer
completes his tenure of service and retires on attaining the age of
superannuation. Therefore, there is no merit in the third contention raised by
For the aforestated reasons, we do not see any merit in this civil appeal
and the same is dismissed with no order as to costs.