The Division Bench of Supreme Court consisting of Justices L. Nageswara Rao and B.R. Gavai opined that in case of conflict between what is stated in internal communication between the two organs of the State and the Statutory Rules and Regulations, it is needless to state that the Statutory Rules and Regulations would prevail.
Facts
After serving for about 25 years in Infantry of the Regular Army, the appellant got reenrolled in the Territorial Army as a fulltime soldier. While serving in Territorial Army, he was granted 10 days’ part of annual leave to proceed to his home, which was at few kilometres from the Unit where he was posted. When he was coming back on his scooter to rejoin his duty, he met with a serious accident. Initially, he was admitted to the District Hospital from where he was shifted to 161 Military Hospital. On 25th April 2009, he was evacuated by helicopter to Base Hospital, where his right leg was amputated up to the knee. Thereafter, he was shifted to the Artificial Limb Centre (hereinafter referred to as ‘ALC’). On 14th September 2009, he was discharged from ALC and was granted 28 days’ sick leave with the instruction to report back to the ALC. After the expiry of sick leave, he was readmitted to ALC on 11th October 2009. On 21st October 2009, the Medical Board was held at ALC which assessed the appellant’s disability to be 80%. However, it could not give any opinion about the attributability aspect of the injury. On 07th November 2009, he was discharged from ALC with instruction to report back to his Unit.
Procedural History
As per the Regulations for the Army, 1987, a Court of Inquiry (hereinafter referred to as “CoI”), was held from 13th November 2009 onwards to investigate into the circumstances under which the appellant had sustained injury. The CoI found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence. The said finding of CoI was duly approved by the Station Commander Respondent No. 3, on 11th January 2010. On 25th October 2010, a recategorization Medical Board was held at ALC, which maintained appellant’s disability at 80% and declared it as attributable to military service. Subsequently, on the basis of the opinion of the Invaliding Medical Board (hereinafter referred to as ‘IMB’), on 1st January 2012, the appellant was invalided out of service with 80% disability which was attributable to military service.
The appellant, therefore, approached AFT for grant of disability pension as is applicable to the personnel of Regular Army, in accordance with Regulation No. 292 of the Pension Regulations for the Army, 1961. The claim of the appellant was resisted by the respondents on the ground that the appellant, after discharging from mechanized infantry as a pensioner, was reenrolled in 130 Infantry Battalion (Territorial Army), Ecological Task Force, Kumaon, on 1st August 2007 as an ExServiceman (ESM). The claim of the appellant has been denied by the respondents on the ground that the appellant was not entitled to any pensionary benefits in view of the letter of the Government of India, Ministry of Defence, dated 31st March 2008.
The AFT though held, that the injury sustained by the appellant which resulted into 80% disability was found by the competent authority to be aggravated and attributable to the military service, rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the Members of Ecological Task Force (hereinafter referred to as ‘ETF’), which was accepted by the appellant and as such, he was not entitled to disability pension.
The appellant thereafter filed for grant of leave to appeal against the judgment and order dated 10th October 2018. The AFT vide order dated 31st October 2018, which allowed the application for grant of leave to appeal and framed a different question of law, is also a subject matter of challenge in the present appeal.
Contentions made
It is the specific case of respondentUnion of India that separate terms and conditions were provided by it vide communication dated 31st March 2008, which provides that the members of ETF would not be entitled for disability pension. Reference was made to subsection (1) of Section 9 of the Territorial Army Act, 1948.
Observations of the Court
The Bench observed that:
“The communication of the Union of India dated 31st March 2008, vide which the President of India has granted sanction, itself reveals that the sanction is for raising two additional companies for 130 Infantry Battalion (Territorial Army) Ecological. It is thus clear that the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. It is not in dispute that the other officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961. When the appellant is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), we see no reason as to why the appellant was denied the disability pension. Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence.
Judgment
The judgment and order dated 10th October 2018 passed by AFT was quashed and set aside. The respondents were directed to grant disability pension to the appellant as per the rules and regulations applicable to the Members of the Territorial Army with effect from 1st January 2012. The respondents were directed to clear arrears from 1st January 2012 within a period of three months from the date of this judgment with interest at the rate of 9% per annum.
Case Name: Pani Ram vs Union of India & Ors.
Citation: Civil Appeal No. 2275 of 2019
Bench: Justice L. Nageswara Rao, Justice B.R. Gavai
Decided on: 17th December 2021
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