K.J.S. Buttar vs Union Of India And Anr

K.J.S. Buttar .. Appellant

-versus-

Union of India and Anr. .. Respondents

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

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invalided 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.

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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.

4 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

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given 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.

6 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.

27. 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.

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The 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." 8

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

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per 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 :

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(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;

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(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

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Notifications/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

13

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.

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

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element 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