Delhi High Court
Ex. Sub. Maj. Satvir Singh vs Union Of India & Ors. on 8 July, 2008
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No.8884/2006
% Date of decision July 8,2008
Ex. Sub. Maj. Satvir Singh ...PETITIONER
Through: Mr. S.M. Hooda, Advocate.
Versus
Union of India & Ors. ...RESPONDENTS No. 1 to 3
Through: Nemo.
...RESPONDENT No. 4
Through: Mr. Akash Pratap and Mr. Puneet
Khurana, Advocates with Col. I.S.Singh,
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? No.
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
1. The petitioner was enrolled in the regular Army as a
combatant soldier on 27.5.1975. He was diagnosed with
„Hypertension‟ in 1990. The disease was attributable due to
military service. The petitioner was placed in low medical
category in the year 1992 and was subsequently even
promoted to the rank of Subedar Major on 17.4.2001. The
petitioner was sent for re-categorization in Feb, 2003 and
was categorized in temporary category "BEE" and
thereafter on 27.6.2004 was categorized in low medical
category "BEE(P)".
2. The medical category did not come in the way of
promotion of the petitioner to the rank of Hony. Lt. on
15.8.2004 and ultimately the petitioner retired from service
on 30.4.2005 after completion of his tenure. At that stage,
the petitioner was also held to be suffering from 30 per cent
disability and was accordingly granted disability pension.
3. The petition claimed that in view of the broad banding
of percentage of disability arising from the recommendation
of the Fifth Pay Commission which is applicable to the
persons who retired after 1.1.1996, disability of 30 per cent
should be treated as 50 per cent as there was one band
made for disability from 0 to 50 per cent.
4. On the other hand, the respondents contend that the
petitioner is not entitled to such broad banding of the per-
centage of disability on account of the fact that the said
benefit is available only for persons who are invalidated out
of service before their due date of super-annuation.
5. Learned counsel for the petitioner contends that the
entitlement rule itself provides that invaliding from service
is necessary condition for grant of disability pension. Since,
the petitioner has been granted disability pension, it implies
that the petitioner has been invalidated out of service even
though he may have completed his full tenure. Learned
counsel in this behalf has also referred to various Judgments
passed by this court.
6. The Judgment which is stated to directly apply to the
case of the petitioner is WP(C) No.5603/2002 Col. B.S.
Dhanda Vs. UOI & Ors. decided on 1.3.2004. It is however
pointed out that the operation of the said Judgment has
been stayed by the Supreme Court.
7. Learned counsel for the petitioner also refers to the
case of WP(C) No. 8889/2006 Lt. Col. (Retd) Ram Narain Vs.
UOI & Ors. decided on 31.8.2006, but the reading of the said
Judgment does not suggest that the persons in the said case
had been super-annuated from the service since the
phrasology used is invalidation from service.
8. The most material Judgment is of the Supreme Court
given in the case of P.K. Kapur Vs. UOI & Ors. JT 2007 (3) SC
98. The Supreme Court dealt with the very aspect sought to
be urged before us and observed as under:-
"7. 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 eben 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
invalidated out of service. This provision is not
applicable to the appellant who retired on
superannuation prior to 1.1.1996. Appellant was
not invalidated out of service. He completed his
normal tenture of service. The benefit of
enhancement is given to those officers who
stood invalidated 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-à-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 Constitution.
8. 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 he at the
time of recruitment, he would be treated as
invalidated from service. Appellant contended
that he was released in a lower medical
category from service on 30.11.89 then what he
ws at the time of recruitment and, therefore, he
should be treated as invalidated from service
with effect from the date of release for the
purpose of grant of disability pension.
9. We do not find any merit in the third
submission. Appellant retired on 30.11.89 on
superannuation. He was never invalidated. He
now claims to be invalidated out of service.
Having stood retired from service after
completing full tenure of service, appellant
cannot now claim that he was invalidated 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 or
disability. 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 the
appellant."
(emphasis supplied)
9. Learned counsel for the petitioner seeks to contend
that the reference has been made in the aforesaid Judgment
to the office memorandum dated, 3.2.2000, while in the
case of armed services office memorandum dated,
16.5.2001 is applicable. It is thus submitted that the
relevant circular was not brought to the notice of the
Supreme Court.
10. A reading of the office memorandum dated 3.2.2000
shows that it is a general circular arising from the
recommendations of Fifth Central Pay Commision while the
office memorandum dated 16.5.2001 is specifically
applicable to the armed forces. Be that as it may, the ratio
of the Judgment in P.K. Kapur case (supra) is abundantly
clear, specifically in respect of the distinction between
persons who had been invalidated out of service before the
expiry of their tenure of service as compared to the persons
who completed their tenure but still are entitled to
disability pension on account of certain percentage of
disability.
11. We are, thus bound by observation of P.K. Kapur‟s
case (supra). The writ petition is thus without merits.
12. Dismissed.
SANJAY KISHAN KAUL, J.
July 8, 2008 MOOL CHAND GARG, J.
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