K.J.S. Vs Union of
India and ANR.
J U D G M E N T
Markandey Katju, J.
1.
This
appeal has been filed against the judgment and order dated 13.9.2004 in C.W.P. No.20447
of 2002 of the High Court of Punjab and Haryana at Chandigarh.
2.
Heard
learned counsel for the parties and perused the record.
3.
The
appellant is an ex-captain in the Indian Army, who was commissioned on 12.1.1969.
During the course of his service, the appellant suffered serious injuries of a permanent
nature and was 2invalided out of service. The Release Medical Board held on
3.1.1979 viewed his injury `gun shot wound left elbow' as attributable to military
service and assessed the degree of disability at 50% and the appellant was released
from service in Low Medical Category on 10.4.1979. Accordingly, the appellant
was granted Disability Pension w.e.f. 26.7.1979.
4.
The
appellant filed a writ petition in the High Court claiming following benefits under
Circular and Notification issued by the Ministry of Defence, Union of India
from time to time :
a. "War Injury Pension
w.e.f. 1.1.1996 in terms of Ministry of Defence letter dated 31.1.2001;
b. Treating the
disability at 75% instead of 50% w.e.f. 1.1.1996 as per Ministry of Defence letter
dated 31.1.2001;
c. Grant of service element
for full 10 years of service instead of 2 years; and
d. Revision of the rates
of the disability pension w.e.f. 1.1.1996 in terms of the letter dated 31.1.2001.
It is pertinent to state
that the Ministry of Defence letter dated 31.1.2001 had revised the rates
pursuant to recommendations of Fifth Pay Commission.
5.
The
appellant was denied the above benefits by the respondent on the basis that he retired
before 1.1.1996, and hence in terms of the notification dated 31.1.2001 he
could not get the said benefits as they were granted to officers who retired on
or after 1.1.1996. The appellant contended that that in view of the instruction
issued on 31.1.2001 and subsequent instructions the said benefits are available
to those who were invalided even prior to 1.1.1996. In addition, the appellant
also prays that his disability should be treated as 75% instead of 50% in terms
of clause 7.2 of the subsequent instructions.
6.
The
appellant had been granted the short service commission in the Indian Army on
21.1.1969. According to him while participating in the exercise conducted with
live ammunition, he suffered gun shot on his left elbow and as a result the
appellant was relieved from Indian Army with 50% disability on 10.4.1979.
7.
A
counter affidavit was filed by the respondent in the writ petition in which it
was alleged that instruction dated 1.1.1996 is not applicable to the appellant.
It was also contended that as regards the instruction dated 31.1.2001 it is not
applicable to the appellant as he had not retired but was invalided out. With regard
to the instruction dated 16.5.2001 it was alleged that the said instruction is applicable
only with respect to paragraph 7.1(ii)(a) of the instruction dated 31.1.2001,
and it has no application to the appellant.
8.
The
High Court in the impugned judgment held that paragraph 7.2 of the instructions
dated 31.1.2001 is not applicable to the appellant. With respect we cannot
agree.
9.
As
regards the claim of the appellant for pension for his full 10 years service as
a short service commission officer, we have already held in Union of India
& Anr. vs. C.S. Sidhu 2010(4) SCC 563 that this claim is justified. Hence
his entire service in the army has to be taken into consideration for grant of
Disability Pension and he must be 5given arrears with interest @ 8% per annum as
was granted in C.S. Sidhu's case.
10.
The
stand of the respondent is that the disability of the appellant cannot be
enhanced to 75% because the relevant provision being para 7.2 of Government of
India, Ministry of Defence, letter dated 31.1.2001 is applicable only to those
cases where the officer was invalided out of service after 1.1.1996. It is alleged
that the appellant was invalided out much before the date.
11.
In
our opinion, the restriction of the benefit to only officers who were invalided
out of service after 1.1.1996 is violative of Article 14 of the Constitution
and is hence illegal. We are fortified by the view as taken by the decision of this
Court in Union of India & Anr. vs. Deoki Nandan Aggarwal 1992 Suppl.(1) SCC
323, where it was held that the benefit of the Amending Act 38 of 1986 cannot
be restricted only to those High Court Judges who retired after 1986.
12.
In
State of Punjab vs. Justice S.S. Dewan (1997) 4 SCC 569 it was held that if it
is a liberalization of an existing scheme all pensioners are to be treated
equally, but if it is introduction of a new retrial benefit, its benefit will
not be available to those who stood retired prior to its introduction. In our
opinion the letter of the Ministry of Defence dated 31.1.2001 is only
liberalization of an existing scheme.
13.
In
Union of India & Anr. vs. S.P.S. Vains (Retd.) & Ors. 2008(9) SCC 125
it was observed : "26. The said decision of the Central Government does not
address the problem of a disparity having created within the same class so that
two officers both retiring as Major Generals, one prior to 1-1-1996 and the
other after 1-1-1996, would get two different amounts of pension. While the officers
who retired prior to 1-1-1996 would now get the same pension as payable to a Brigadier
on account of the stepping up of pension in keeping with the fundamental rules,
the other set of Major Generals who retired after 1-1-1996 will get a higher
amount of pension since they would be entitled to the benefit of the revision of
pay scales after 1-1-1996.
In our view, it would
be arbitrary to allow such a situation to continue since the same also offends the
provisions of Article 14 of the Constitution. 28. The question regarding creation
of different classes within the same cadre on the basis of the doctrine of intelligible
differentia having nexus with the object to be achieved, has fallen for
consideration at various intervals for the High Courts as well as this Court,
over the years. 7The said question was taken up by a Constitution Bench in D.S.
Nakara where in no uncertain terms throughout the judgment it has been repeatedly
observed that the date of retirement of an employee cannot form a valid criterion
for classification, for if that is the criterion those who retired by the end
of the month will form a class by themselves. In the context of that case,
which is similar to that of the instant case, it was held that Article 14 of the
Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory
in character, the amended Rules, specifying a cut-off date resulted in differential
and discriminatory treatment of equals in the matter of commutation of pension.
It was further observed
that it would have a traumatic effect on those who retired just before that date.
The division which classified pensioners into two classes was held to be artificial
and arbitrary and not based on any rational principle and whatever principle, if
there was any, had not only no nexus to the objects sought to be achieved by amending
the Pension Rules, but was counterproductive and ran counter to the very object
of the pension scheme. It was ultimately held that the classification did not satisfy
the test of Article 14 of the Constitution. 30. However, before we give such directions
we must also observe that the submissions advanced on behalf of the Union of India
cannot be accepted in view of the decision in D.S. Nakara case.
The object sought to be
achieved was not to create a class within a class, but to ensure that the
benefits of pension were made available to all persons of the same class equally.
To hold otherwise would cause violence to the provisions of Article 14 of the
Constitution. It could not also have been the intention of the authorities to equate
the pension payable to officers of two different ranks by resorting to the
step-up principle envisaged in the fundamental rules in a manner where the other
officers belonging to the same cadre would be receiving a higher pension."
14.
In
our opinion the appellant was entitled to the benefit of para 7.2 of the instructions
dated 31.1.2001 according to which where the disability is assessed between 50%
and 75% then the same should be treated as 75%, and it makes no difference
whether he was invalided from service before or after 1.1.1996. Hence the
appellant was entitled to the said benefits with arrears from 1.1.1996, and
interest at 8% per annum on the same.
15.
It
may be mentioned that the Government of India Ministry of Defence had been
granting War Injury Pension to pre 1996 retirees also in terms of para 10.1 of
Ministry's letter No.1(5)/87/D(Pen-Ser) dated 30.10.1987 (Page 59 Para 8). The
mode of calculation however was changed by Notification dated 31.1.2001 which
was restricted to post 1996 retirees. The appellant, therefore, was entitled to
the War Injury Pension even prior to 1.1.1996 and especially in view of the instructions
dated 31.1.2001 issued by the Government of India.
The said instruction
was initially for persons retiring after 1.1.1996 but later on by virtue of the
subsequent Notifications dated 16.5.2001 it was extended to pre 1996 retirees
also on rationalization of the scheme. As 9per the Instructions, different categories
have been provided by the Government for award of pensionary benefits on death/disability
in attributable/aggravated cases. As per Para 10.1 of the Instructions dated 31.1.2001,
where an Armed Forces personnel is invalided on account of disability sustained
under circumstances mentioned in Category-E(f)(ii) of Para 4.1, he shall be
entitled to War Injury Pension consisting of service element and war injury element.
Para 4.1 provides for the different categories to which the pensionary benefits
are to be awarded. Category-E(f)(ii) of Para 4.1 pertains to any death or
disability which arises due to battle inoculation, training exercises or demonstration
with live ammunition.
Appellant is entitled
to the War Injury Pension in terms of Category-E(f)(ii) of Para 4.1 and Para
10.1 of the Instructions dated 31.1.2001, which are reproduced hereunder for ready
reference :- Para 10.1 Where an armed forces personnel is invalided out of service
on account of disability sustained under circumstances mentioned in category `E'
of para 4.1 above, he/she shall be entitled to war injury pension consisting of
service element and War Injury Pension as follows : 10 (a) Service element : Equal
to retiring/service pension which he/she would have been entitled to on the basis
of his/her pay on the date of invalidment but counting service up to the date
on which he/she would have retired in that rank in the normal course including weightage
as admissible.
Provisions of para 6 of
the Ministry of Defence letter No.1/6/98/D(Pens/Ser) dated 3.2.1998 shall apply
for calculating retiring/service pension. There shall be no condition of minimum
qualifying service for earning this element. (b) War Injury element: Equal to reckonable
emoluments last drawn for 100% disablement. However, in no case the aggregate
of service element and war injury element should exceed last pay drawn. For
lower percentage of disablement, war injury element shall be proportionately
reduced.Category `E"Death or disability arising as a result of :-(a) to
(e) xxx xxx xxx(f) War like situations, including cases, which are attributable
to/aggravated by :- (i) extremist acts, exploding mines etc., while on way to
an operational areas; (ii) battle inoculation training exercises for demonstration
with live ammunition; 11 (iii) Kidnapping by extremists while on operational
duty (g) to (i) xxx xxx xxx
These instructions, which
were initially restricted to Armed Forces personnel, who retired on or before 1.1.1996
were subsequently made applicable to the pre 1996 retirees also by virtue of instruction
dated 16.5.2001. Relevant portion of the Instruction/Notification in this regard
is reproduced hereunder :- Subject - Rationalization of Pension Structure for
pre 1996 Armed Forces Pensioners - Implementation of Government decisions on the
recommendations of the Fifth Central Pay Commission."
16.
As
per para-6 of these instructions/letter dated 16.5.2001, any person, who is in
receipt of disability pension as on 1.1.1996 is entitled to the same benefit as
given in letter dated 31.1.2001. Further as per para-7 of this letter w.e.f.
1.1.1996 the rates of War Injury element shall be the rates indicated in letter
dated 31.1.2001. Thus, in our opinion in view of the instruction dated 31.1.2001
read with our opinion 16.5.2001, the appellant was entitled to the War Injury
Pension. It is pertinent to state that reading of paras 6, 7 and 8 of the 12Notifications/Circular
dated 16.5.2001 makes it absolutely clear that the said benefits were available
to pre 1996 retirees also but the rates were revised on 31.1.2001 and the
revised rates were made applicable to post 1996 retirees only. But subsequently
by means of the Notification dated 16.5.2001 the revised rates were extended to
pre 1996 retirees also.
17.
At
any event, we have held that there will be violation of Article 14 of the Constitution
if those who retired/were invalided before 1.1.1996 are denied the same benefits
as given to those who retired after that date.
18.
The
respondents submitted that the appellant was not entitled to the above benefits
as he had retired on completion of his short service commission of 10 years and
had not been invalided out of service. In this connection it may be mentioned that
the appellant was invalided out and released in a low medical category with
permanent disability assessed at 50% by the Release Medical Board. As per the Defence
Service Regulation/Pension regulation for the Army 1961 where any officer is
found suffering from disability attributable to or aggravated by Military
Service he shall be deemed to have been invalided out of service. Relavant provision
(page 25 additional documents) read as under :-
"Officers
Compulsorily Retired on account of Age or on Completion of Tenure. 53.(1) An officer
retired on completion of tenure or on completion of terms of engagement or on attaining
the age of 50 years (irrespective of their period of engagement), if found suffering
from a disability attributable to or aggravated by military service and recorded
by service Medical Authorities, shall be deemed to have been invalided out of
service and shall be granted disability pension from the date of retirement, if
the accepted degree of disability is 20 percent or more, and service element if
the degree of disability is less than 20 percent. The retiring pension/retiring
gratuity, if already, sanctioned and paid, shall be adjusted against the disability
pension/service element, as the case may be. (2) The disability element
referred to in clause (1) above shall be assessed on the accepted degree of
disablement at the time of retirement/discharge on the basis of the rank held on
the date on which the wound/injury was sustained or in the case of
disease." In our opinion the appellant is entitled to the benefit of the above
Regulation.1
19.
As
a result this appeal is allowed and we hold that the appellant is entitled to
grant of War Injury Pension w.e.f. 1.1.1996. The disability 14element of the
Disability Pension shall be commuted as 75% instead of 50% and the appellant
will be granted arrears w.e.f. 1.1.1996 with an interest of 8% per annum. He will
also be granted 10 years' commission service and interest as granted in C.S.
Sidhu's case from the date of his release. The impugned judgment is set aside.
20.
The
appeal is allowed. There shall be no order as to costs.
...................................J.
(Markandey Katju)
...................................J.
(Gyan Sudha Misra)
New
Delhi;
31st
March, 2011
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