Ex-Lc Shreya Manhas vs Union Of India And Ors.
2020 Latest Caselaw 3260 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Date of Decision: 27th November, 2020

+                          W.P.(C) 7898/2018

       EX-LC SHREYA MANHAS                     ..... Petitioner
                    Through: Mr. Indra Sen Singh, Advocate

                    versus

       UNION OF INDIA AND ORS.               .....Respondents

Through: Ms. Amrita Prakash, Advocate

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON

[VIA VIDEO CONFERENCING]

JUSTICE ASHA MENON

1. This petition has been filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari quashing the order dated 8 th November, 2016 by which the petitioner has been denied the benefit of the 'broad banding' policy of the Government of India insofar as it relates to the grant of disability award to the members of the Armed Forces.

2. The facts as set out in the petition are that the petitioner had joined the Officers Training Academy (OTA), Chennai on 15th October, 2010 after she was thoroughly examined by various medical experts and was found absolutely fit and free from any disease or medical disability to undergo the rigorous military training. However unfortunately on 8 th

November, 2010, during military training, the petitioner sustained a neck injury resulting in a permanent disability namely "FRACTURE NECK OF FEMUR LT". She was found unfit for Army service by a duly constituted Release Medical Board (RMB) held at CHAF, Bangalore, which assessed the disability of the petitioner at 40% for life and the disability was also attributable to military service. Accordingly, the petitioner was invalidated out of the service on 21st December, 2011.

3. It was only after prolonged correspondence with the respondents that finally the respondents sanctioned ex-gratia disability award to the petitioner at the rate of 40% for life which was sanctioned to her on 19 th March, 2014. The petitioner has claimed that she was entitled to 'rounding off/broad banding' as per the policy of the Government of India and entitled to receive the disability award for 50% disability for life. She accordingly approached the respondents vide Appeal dated 10 th October, 2016 requesting them for 'broad banding/rounding off' the ex-gratia disability award from 40% to 50%. However, by the impugned order dated 8th November, 2016 the said request was rejected. Thereafter, she approached the Armed Forces Tribunal (AFT) for relief but the AFT vide order dated 4th October, 2017 dismissed the Original Application bearing number O.A. No. 1425 of 2017 filed by her on the ground of lack of jurisdiction as being an ex-cadet, she was not covered under the Armed Forces Tribunal Act, 2007. Hence the present petition which was filed on 27th July, 2018.

4. The learned counsel for the petitioner has submitted that a very short point is involved in the present petition. The respondents have already granted to the petitioner ex-gratia disability award vide order

dated 19th March, 2014 as per the provisions of Government of India, Ministry of Defence (MoD) Letter No. 1(5)/93/D(Pen-C) dated 16th April, 1996 as amended by Government of India, MoD Letter No. 1(6)/99/D(Pen-C) dated 15th September, 2003. The petitioner was only praying that the benefit of the letter of the Government of India, MoD bearing No.1(2)/97/I/D(Pen-C) dated 31st January, 2001 be granted to her. In other words, her disability award should be calculated @50% for life and not @40% for life. The copy of this letter is placed on the record as Annexure R-1 to the Rejoinder. The learned counsel has relied on the judgement of a Division Bench of this court in Puneet Gupta v. Union of India & Ors. 2016 SCC OnLine Del 3846 to submit that a cadet under training was also found entitled to the benefit of the policy dated 31 st January, 2001. He has sent us, through email, the judgement in Puneet Gupta (supra) along with some orders of the AFT where the benefit of 'broad banding' was granted to army personnel and their disability even if just 20% was considered as 50% for purposes of calculation of disability award. He has prayed that the same benefit be given to the petitioner.

5. On the other hand, the learned counsel for the respondents submitted that the interpretation placed by this court in Puneet Gupta (supra) was incorrect as the policy dated 31st January, 2001 was applicable only to Armed Forces Commissioned Officers and Personnel Below Officer Rank and was not applicable to cadets/trainees at all, particularly those who could not even complete their training due to injury sustained. The policy of 2001 did not mention cadets or non- commissioned officers. According to learned counsel, the policy that was

applicable to cadets was the policy dated 16th April, 1996 and the petitioner had already been granted all benefits under the said policy.

6. On our request, the learned counsel for the respondents had emailed to us the policy dated 16th April, 1996 titled "Scheme for grant of ex-gratia awards in cases of death/disablement of cadets (direct) due to causes attributable to or aggravated by military training". Clearly this Scheme is applicable to cadets who sustained injuries during training or unfortunately died during the course of training. On the other hand, a perusal of Annexure R-1 to the Rejoinder shows that it relates to "implementation of Government decisions on recommendations of the 5th Central Pay Commission regarding disability pension/war injury pension/special family pension/liberalised family pension/dependent pension/liberalised dependent family pension for the Armed Forces Officers and Personnel Below Officer Rank retiring invaliding or dying in harness on or after 1 January 1996". It further records that the President had accorded sanction to the modification of the existing Rules and Regulations concerning the pensionary benefits of the Commissioned Officers (including MNS) and Personnel Below Officer Rank (PBOR) including NCs(E) of the three Services. No doubt, the word "cadet" or "trainee" finds no mention. The contention of the learned counsel for the respondents was that before the Division Bench of this court in Puneet Gupta (supra), the court had not given the government an opportunity to explain the difference in the policy declared on 31st January, 2001 and the policy governing the cadets/trainees which has been in force since April, 1996.

7. On perusal of the judgment in Puneet Gupta (supra), we find that the Division Bench has exhaustively dealt with the policy of 16 th April, 1996 in that case while determining whether or not the petitioner before it was entitled to any disability pension and disability award as in that case, the petitioner was found to have 20% disability though the respondents had interpolated that finding of the Medical Board to portray disability of between 11% to 19% and thus deny to him the benefit of even the 1996 policy. The court held that the petitioner was entitled to disability award. It is thereafter that the court recorded the following:

"30. Though not pleaded in the writ petition, but since it is to the knowledge of this Court and the existence of which was not denied by learned counsel for the respondents, on January 31, 2001 the Government of India, Ministry of Defence issued a office memorandum No. 1(2)/1997/1/D(Pen-C). The subject of the policy circular is the implementation of the decision by the Government concerning disability pension to members of the Armed Forces and as per the same any disability above 20% upto 50% has to be treated as a disability of 50% and thus we declare that in conformity therewith the petitioner would be entitled to the benefit of disability at 50%. The policy circular clearly states that it would be applicable with effect from January 01, 1996 i.e. has a retrospective operation. But this is irrelevant in the facts of the instant case because the petitioner was invalided as a trainee on March 18, 2008 and the benefit which the petitioner receives as a result of our opinion would be with effect from the date of the order of termination i.e. March 18, 2008.

31. The writ petition is accordingly disposed of directing the respondents to pay the ex-gratia amount at the rate contemplated by the first limb of the policy circular

dated April 16, 1996 as also and additional disability award on ex-gratia basis at the rate contemplated by the second limb of the same policy circular and while doing so to give effect to the Government of India memorandum dated January 31, 2001 i.e. notwithstanding the disability being assessed 20%, to grant the same by treating the disability at 50%."

8. It is quite apparent that the court incorporated the policy of 31 st January, 2001 in the judgment without a hearing on the said issue, and on the basis that it had knowledge of the existence of a subsequent policy dated 31st January, 2001. There is therefore merit in the contention of the learned counsel for the respondents that they had no opportunity to point out the difference in the two policies. Before us, since the applicability of the policy dated 31st January, 2001 to cadets/trainees has been directly questioned, we are of the view that the observations in Puneet Gupta (supra) will not constitute a binding precedent as unlike in the present case, the applicability of the policy dated 31st January, 2001 was not subject matter in that case. We may note that it was not even pleaded so.

9. Under the policy of April 1996, the procedure for determination of disability for cadets/trainees is the same as for the personnel of the Armed Forces. The standards are the same and the RMB is constituted in a similar manner. That being the case, the learned counsel for the petitioner had urged that there is no reason to hold back the benefits of 'broad banding' from cadets/trainees as if it is to remove subjectivity, the same logic holds good in the case of cadets/trainees as well.

10. For the Armed Forces personnel invalidated out due to injury resulting in disability, the following table has been provided for in the letter dated 31st January, 2001 being Annexure R-1 to the Rejoinder:

"7.2 Where an Armed Forced personnel is Invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:-

Percentage of disability as Percentage to be reckoned assessed by invaliding medical for computing of disability board element

"

11. At first blush, the argument of the learned counsel for the petitioner seems attractive and it appears unjust to deny to the cadets/trainees the benefit of the above table while reckoning/computing disability element. However, we cannot overlook that cadets/trainees and personnel of the Armed Forces fall into two very distinct categories. The policy of 31 st January, 2001 has been made clearly applicable to Commissioned Officers and PBOR and had been introduced in keeping with the recommendations of the 5th Central Pay Commission relating to pensions, including disability pension. The cadets are yet to complete training and are yet not part of the Armed Forces. Therefore, their scheme is for grant of "ex gratia awards" for disablement or even death during training. The two policies are applicable to two different categories and the

classification is clear. The petitioner cannot claim discrimination. Having not yet entered the Services and having remained only at the threshold, the petitioner cannot claim equality with those who have served the Armed Forces before misfortune hit them. The grant of more benefits to such members of the Services cannot be extended to cadets/trainees as they have not served the Armed Forces but were only being prepared for it.

12. While we can sympathize with the petitioner, the sympathy cannot translate into extending benefits to her by mixing up two policies intended for two different categories, namely, cadets/trainees on the one hand and the Service personnel on the other.

13. We find no merit in the present petition, which is accordingly dismissed.

ASHA MENON, J.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 27, 2020 manjeet