Punjab-Haryana High Court
Date Of Decision: May 28 vs Union Of India & Others on 28 May, 2009
Author: Ajai Lamba
Bench: Ajai Lamba
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
1. Civil Writ Petition No.5688 of 2008
Date of Decision: May 28, 2009
Ramesh Kumar Sharma
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
2. Civil Writ Petition No.17497 of 2008
Shamsher Singh
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
3. Civil Writ Petition No.17902 of 2008
Mahavir
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
CWP No.5688 of 2008 [2]
4. Civil Writ Petition No.17979 of 2008
Mahipal Singh
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
5. Civil Writ Petition No.17980 of 2008
Rajbir Singh
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
6. Civil Writ Petition No.21566 of 2008
Surender Pal Kaur
.....PETITIONER(S)
VERSUS
Union of India & Others
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. Navdeep Singh, Advocate, for the
petitioner in CWP No.5688 of 2008.
Mr. Surinder Sheoran, Advocate, for
the petitioner in CWP Nos.17497,
17902, 17979, 17980 and 21566 of
2008.
CWP No.5688 of 2008 [3]
Mr. S.K. CentralSharma,
Government Standing Counsel, for
the respondents in CWP Nos.5688 and
21566 of 2008.
Ms. Ranjana Central Shahi,
Government Standing Counsel, for
the respondents in CWP Nos.17497 and
17980 of 2008.
Ms. Anjali Central Kukar,
Government Standing Counsel, for
the respondents in CWP Nos.17902 and
17979 of 2008.
. . .
AJAI LAMBA, J (Oral)
This judgment shall dispose of Civil Writ Petition Nos.5688 of 2008 titled 'Ramesh Kumar Sharma vs. Union of India & Others'; 17497 of 2008 titled 'Shamsher Singh vs. Union of India & Others'; 17902 of 2008 titled `Mahavir vs. Union of India & Others'; 17979 of 2008 titled 'Mahipal Singh vs. Union of India & Others'; 17980 of 2008 titled 'Rajbir Singh vs. Union of India & Others'; and 21566 of 2008 titled `Surender Pal Kaur vs. Union of India & Others'. Similar question of law has been raised and therefore, the cases can be disposed of by virtue of a common judgment.
For facts, pleadings of Civil Writ Petition Nos.5688 of 2008 titled 'Ramesh Kumar
Sharma vs. Union of India & Others' are taken into account.
Learned counsel for the petitioner has drawn the attention of the Court towards Annexure CWP No.5688 of 2008 [4] P-1 i.e. Paragraph 164.8 of the Fifth Central Pay Commission Report, contents whereof read as under:-
"We also feel that some rationalization with regard to the degree of disablement is also required as the existing system is prone to delays. We suggest that for personnel boarded out of service due to disability attributable to service, the minimum disability element should be reckoned as 50% irrespective of what it actually is and where an individual can be retained in service with transfer in trade, remustering etc, the Armed Forces may, if possible, make provision to retain him till he completes his term of engagement, especially if the disability is of such a nature that is capable of improvement. However, we would not like to compromise on the requirement of physical fitness in the Armed Forces and would, therefore like to suggest that where it is not feasible to retain such personnel, a minimum disability element calculated at 50% may be paid. For individual who is boarded out and degree disability is assessed between 50% and 75%, disability element may be authorized at 75% and for more than 75% disability, the element should be calculated at 100%. Thus there will be a broad-banding of the extent of disability and the likelihood of mistakes or disagreements would be minimal."
Perusal of the above would indicate that the 5th Central Pay Commission had thought it appropriate, so as to remove the ambiguities and discrepancies, that broad-banding of the extent of disability and the likelihood of mistakes or disagreements would be minised.
Once the intent of the 5th Central Pay Commission has been codified, there is no reason to differentiate between a person who is invalided out or a person who completes his service, however, with the disability.
Learned counsel has further drawn the attention of the Court towards Para 4 of Entilement Rules for Casualty Pensionary Awards, 1982, which reads as under:-
"4. Invaliding from service is a necessary condition for grant of disability pension. An individual, who, at the CWP No.5688 of 2008 [5] time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited, will be treated as invalided from service."
Learned counsel contends that the fact that petitioner was disabled and the disability is either directly attributable to military service or aggravated by service, cannot be denied the rounding off of disability pension for hyper-technical reasons as adopted by the respondents. Invaliding out of a personnel or completion of term of engagement cannot be a rider for grant of relief.
Learned counsel for the petitioner has also relied on judgment dated 12.2.2008 rendered by Division Bench of this Court in Civil Writ Petition No.67 of 2007 titled `Paramjit Singh vs. Union of India through Secretary, Ministry of Defence, New Delhi & Others', relevant portion of which reads as under:-
"The respondents have denied the benefit of 50% disability pension and Disability Benefit Cover under the Army Group Insurance Fund to the petitioner only on the ground that he was discharged from service on completion of terms of engagement and was not invalidated out from service. Thus, the only question involved in this petition is - whether the petitioner is entitled to benefits which are admissible to army personnel who are invalidated out of service or not.
xx xx xx xx xx xx xx .........At this stage, reference to Regulation 179 of the Army Pension Regulations, 1961 (hereinafter referred to as `the Pension Regulations') is necessary and the same reads as under:-
"179. An individual retired/discharged on completion of tenure or on completion of service limits 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 invalidated out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.CWP No.5688 of 2008 [6]
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 on the date of first removal from duty on account of that disease.
Note: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation."
A perusal of the above provisions of Regulation 179 of Pension Regulations leaves no room for doubt that the petitioner was invalidated out of service. The petitioner sustained injury/disability during service, which was attributable to and aggravated by military service and recorded by Service Medical Authorities. The note below Regulation 179 further makes it clear in the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement, as was given by the petitioner in the present case, should not effect his title to the disability element under Regulation 179 of the Pension Regulations. In this view of the matter, we have no hesitation in holding that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service.
xx xx xx xx xx xx xx For the aforesaid reasons, this petition is allowed and the petitioner is held entitled to 50% disability pension and to Disability Benefit Cover under the Army Group Insurance Fund for his disability. The disability pension at the rate of 50% with all consequential benefits will be paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum."
Learned counsel for the respondents has not been able to dispute that the cases are
similar in nature and the fact of rounding off of disability pension has been denied only on the ground that the petitioner had completed his term of engagement.
Learned counsel for the respondents has also not been able to distinguish the judgment rendered by the Division Bench of this Court in Paramjit Singh's case (supra), relevant portion of whereof CWP No.5688 of 2008 [7] has been extracted above.
Considering the above, the petitions are allowed.
The respondents are directed to pay the arrears to the petitioners within four months from the date of receipt of certified copy of this order, failing which the petitioners would be entitled to interest @ 9% per annum.
The claim of the petitioner (in Civil Writ Petition No.21566 of 2008) would be restricted till 30.9.2007 i.e. the date when husband of the petitioner namely Subedar Amar Inderjeet Pal Singh, died.
(AJAI LAMBA)
May 28, 2009 JUDGE
avin