Supreme Court - Daily Orders
Ex Hav Ashok Kumar (S.No. 6926549M) vs Union Of India on 24 July, 2019
Equivalent citations: AIR 2019 SUPREME COURT 4230, (2019) 11 SCALE 1, (2019) 3 SCT 831, (2019) 3 SERVLJ 48, AIR 2019 SC (CIV) 3031, AIRONLINE 2019 SC 2553
Bench: D.Y. Chandrachud, Indira Banerjee
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). of 2019
Diary No 6278 of 2019
Ex-Hav Ashok Kumar Appellant(s)
Versus
Union of India & Ors Respondent(s)
JUDGDMENT
Dr Dhananajaya Y Chandrachud, J
Delay condoned.
The appellant was a Havildar in the Indian Army. He completed his original
tenure of twenty four years of service on 27 December 2010. He was granted an
extension of service for two years until 26 December 2012. This extension was
Signature Not Verified
granted to the appellant in accordance with the procedure set out in a policy letter
Digitally signed by
MANISH SETHI
Date: 2019.07.31
17:29:37 IST
Reason:
of the Army Headquarters dated 21 September 1998 which is titled:
“PROCEDURE AND CRITERIA FOR SCREENING OF
PERSONNEL BELOW OFFICER RANK (PBOR)”
2
During the course of his extended tenure, the appellant suffered a stroke and was
re-categorised into the category described as SHAPE-3 (Permanent) with an 80%
disability. The Release Medical Board found that the disability was not attributable
to or aggravated by military service. The appellant was discharged from service.
Seeking the grant of disability pension, the appellant moved 1 the Armed
Forces Tribunal at its Principal Bench 2. On 2 July 2014, the AFT allowed the O A
by holding that the appellant was entitled to disability pension. However, the
claim of rounding off of the disability pension was kept open on the hypothesis
that the issue was pending decision before this Court.
The appellant filed a Review Application before the AFT which was allowed
on 30 October 2014. The AFT held that as a matter of fact, it was mistaken in its
finding that the issue of rounding off was pending before this Court. Hence, the
AFT held that the appellant was entitled to the benefit of rounding off from 80% to
100%.
The appellant moved the AFT in 2016 seeking the payment of ex-gratia
compensation of Rs 9,00,000 based on a policy circular dated 26 December
2011. The AFT rejected the claim on the following counts:
(i) Such a claim should have been made before the AFT in the earlier round of
proceedings and not having been addressed either in the OA or in the
review, such a relief was barred by Order II Rule 2 of the Code of Civil
Procedure, 19083;
(ii) The claim was barred by limitation since the appellant was discharged from
service in 2012 and it was only in 2016 that the AFT was moved for such
relief; and
1 O A No 321 of 2013
2 “AFT”
3 “CPC”
3
(iii) On merits, the essential requirement for claiming ex-gratia compensation
was that the applicant should have been invalidated from service on the
ground of disability. In the present case, the appellant, upon completing
twenty four years of service, was granted an extension of two years and it
was during the extended period that he was discharged upon being
downgraded to a low medical category.
The AFT relied on the note appended to Rule 2 of the Pension Regulations for the
Army and came to the conclusion that for the purpose of disability pension, a
person who is discharged from service during the extended tenure is deemed to
have been invalidated for the purpose only of the Entitlement Rules laid down in
Appendix 2 to the Regulations. Aggrieved by the decision of the AFT, this appeal
has been filed.
Mr V S Tomar, learned counsel appearing on behalf of the appellant
submitted that in Union of India vs Ram Avtar 4 a three judge Bench of this Court
concluded on the issue as to whether an individual who has retired on attaining the
age of superannuation or on completion of the tenure of engagement is entitled to
the benefit of rounding off of disability pension upon being found to suffer from a
disability which is attributable to or aggravated by military service. The Union
Ministry of Defence contended that this benefit of rounding off is available only to
Armed Forces personnel who are invalidated out of service and not to any other
category. This submission was rejected while dismissing the appeal filed by the
Union of India against the decision of the AFT. Hence, it was urged that in the
present case, for all intents and purposes, the appellant, who was on an extended
tenure of service, was prematurely discontinued and it must be treated an
4 Civil Appeal No 418 of 2012 decided on 10 December 2014
4
invalidation out of service. On this basis, it was submitted that the appellant would
be entitled to ex-gratia compensation in terms of the policy circular dated 26
December 2011.
Opposing the submissions which were urged on behalf of the appellant,
Mr. K.M. Nataraj, learned Additional Solicitor General submitted that in essence,
the argument of the appellant is that every person who is granted disability
pension must necessarily get an ex-gratia payment. This, it was urged, is neither
the intent nor the purpose of the Policy Circular. According to the submission, the
grant of ex-gratia compensation to Army personnel who die in the course of duties
while in service as stipulated in the original policy dated 4 June 2010 was
subsequently extended on 26 December 2011. The essential requirement of the
Policy dated 26 December 2011 is that it applies to defence service personnel who
are disabled or incapacitated in the performance of their official duties and are
boarded out of service on account of disability/war injury attributable to or
aggravated by military service. It was urged that this condition is not fulfilled in the
case of the appellant. The appellant, it was urged, was granted an extended
tenure of two years of service in terms of the Army Headquarters’ Policy Instruction
dated 21 September 1998 under which retention during the extended tenure is
subject to certain conditions. One of those conditions is that a person who is
placed in the permanent low medical category (except those who are battle
casualties or wounded in action), would be discharged under the existing Rules.
Hence, it was submitted that as the appellant was discharged in accordance with
the conditions subject to which he was granted an extended tenure, he would not
be entitled to the benefit of ex-gratia compensation. It has been urged that if the
policy circular were to indicate that every person who is entitled to a disability
5
pension would also be entitled to ex-gratia, a specific provision to that effect would
have been made.
Though the AFT has rejected the claim of the appellant on the ground that
the claim for ex-gratia compensation was not made in the earlier round and is
therefore, barred by both Order II Rule 2 of the CPC and by limitation, we propose
to decide the issues in this appeal on merits. Hence, we have not gone into these
technicalities. We addressed ourselves to the merits of the claim since in all
fairness that is the basis on which the claim has been opposed by the learned
Additional Solicitor General.
At the outset, it would be necessary to appreciate the circumstances in
which the appellant was granted disability pension under the Pension Regulations
for the Army, 1961. Regulations 173 and 173-A have a bearing on the matter.
They provide as follows:
“Primary conditions for the grant of disability pension
173. Unless otherwise specifically provided a
disability pension consisting of service element and
disability element may be granted to an individual who is
invalided out of service on account of a disability which is
attributable to or aggravated by military service in non-
battle casualty and is assessed at 20 per cent or over.
The question whether a disability is attributable to or
aggravated by military service shall be determined under
the rule in Appendix II.
Individuals discharged on account of their being
permanently in low medical category.
173-A. Individuals who are placed in a lower medical
category (other than 'E') permanently and who are
discharged because no alternative employment in their
own trade/category suitable to their low medical category
could be provided or who are unwilling to accept the
alternative employment or who having retained in
alternative appointment are discharged before completion
of their engagement, shall be deemed to have been
invalided from service for the purpose of the entitlement
rules laid down in Appendix II to these Regulations.
6
Note. The above provision shall also apply to individuals
who are placed in a low medical category while on
extended service and are discharged on that account
before the completion of the period of their
extension.”
Regulation 173 provides for the grant of disability pension to a person who
is invalidated out of service on account of a disability which is attributable to or
aggravated by military service in a non-battle casualty where the disability is
assessed at 20 per cent or more. Regulation 173-A extends the provision for
disability pension by a deeming fiction under which a person who is placed in a
low medical category while on extended service and is consequently discharged
will also stand covered by the grant of disability pension. A person, who is placed
in a low medical category and is discharged, is also deemed to have been
invalidated out of service for the purpose of the entitlement rules laid down in
Appendix 2 to the Regulations. The deeming fiction is confined to the grant of a
benefit to the extent specified in Regulation 173-A.
That leads us to determine the basic issue of whether the appellant fulfilled
the requirement for the grant of ex-gratia compensation. Initially by a policy
decision of the Government of India in the Ministry of Defence dated 4 June 2010,
ex-gratia compensation was provided to the next of kin in cases of death. This was
extended on 26 December 2011 to personnel who are disabled or incapacitated
on account of causes attributable to or aggravated by military service. However,
para 3 of the Policy Circular dated 26 December 2011 contains the following
stipulations:
“3. The President is pleased to decide that such Defence Service
personnel, who are disabled, incapacitated in the performance, of
their bonafide official duties under various circumstances and are
boarded out from service on account of disability/war injury
attributable to or aggravated by military service, shall be paid Ex-
gratia lump sum compensation amounting to Rs.9 lakhs for 100%
7
disability. For disability/war injury less than 100% but not less
than 20%, the amount of Ex-gratia compensation shall be
proportionately reduced. No Ex-gratia compensation shall be
payable for disability/war injury less than 20%. The proportionate
compensation would be based on actual Percentage of disability
as certified by the invaliding Medical Board, without applying
-board banding provisions as contained in Para 7.2 of this
Ministry's above mentioned letter dated 31.01.2001.”
In order to be entitled to the grant of ex-gratia compensation, it is necessary that
the applicant must fulfill the following conditions:
(i) The applicant should have been disabled or incapacitated in the
performance bona fide official duties; and
(ii) The applicant should have been boarded out of service on account of
disability/war injury attributable to or aggravated by military service.
If the intent of the Policy was to grant an ex-gratia compensation to every person
who is granted a disability pension, it would have provided so.
On 21 September 1998, the Army Headquarters provided the procedure
and criteria for screening of personnel below the officer rank for extension in
service. All PBOR5 are to be screened for extension of two years by the Screening
Board. Para 5 of the letter provides:
“5. Retention of a PBOR during extended tenure. The retention
of a PBOR during the extended tenure will be governed by the
considerations as per Annexure 'B' to this letter.”
Annexure B to the Policy Instruction contains specific provisions in regard to
retention during the extended tenure and includes the following stipulations:
“1. Retention of PBOR during the extended tenure will be
governed by the followings consideration:-
(i) Medical Standard The individual must continue
to remain medical category 'AYE' PBOR who
are temporary low medical category at the
time of Screening Board as well as during the
5 “Persons below officer’s Rank
8
currency of extension of service will continue
to be in service. If this temporary low medical
category is made into permanent low medical
category is made into permanent low medical
category except those who are battle
causalities wounded in action and
consequently placed in LMC (pt) during
enhanced service, the individual will be
discharged under the existing rules.”
This indicates that a person who is placed in a permanent low medical
category, except a battle casualty or a person wounded in action, and
consequently placed in a permanent low medical category during the extended
service will be discharged under the existing rules. Such a person who is
discharged undoubtedly would be entitled to the benefit of the disability pension by
virtue of the deeming fiction in Regulation 173-A of the Pension Regulations.
However, it does not ipso facto entitle the individual to the grant of ex-gratia
compensation. The case for ex-gratia compensation has to fall within the purview
of the governing conditions which are contained in the policy circular dated 26
December 2011.
The appellant evidently did not meet that requirement of the policy circular
since he was not boarded out of service on account of disability/war injury
attributable to or aggravated by military service. He was entitled to disability
pension in view of the provisions contained in Regulation 173-A. Significantly,
under Regulation 173-A, he is deemed to have been invalidated from service for
the purpose of the entitlement rules laid down in Appendix 2 to the Regulations.
The fiction under Regulation 173-A cannot be extended to the policy document
dated 26 December 2011.
Consequently, we are of the view, for the reasons we have indicated, that
the claim for ex-gratia compensation could not have been entertained.
9
The appeal is accordingly dismissed.
Pending application(s), if any, shall stand disposed of.
…..…………................................J.
(Dr. Dhananjaya Y. Chandrachud)
.…………………………...............J.
(Indira Banerjee)
New Delhi
July 24, 2019
10
ITEM NO.5 COURT NO.11 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL Diary No(s). 6278/2019
(Arising out of impugned final judgment and order dated 12-10-2018
in OA No. 1232/2016 passed by the Armed Forces Tribunal)
EX HAV ASHOK KUMAR Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
(IA No. 35247/2019 - CONDONATION OF DELAY IN FILING)
Date : 24-07-2019 This matter was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MS. JUSTICE INDIRA BANERJEE
For Petitioner(s) Mr. V.S. Tomar, Adv.
Mr. Ambreesh Kumar Aggarwal, AOR
For Respondent(s) Mr. K.M. Nataraj, ASG
Mr. Amit Verma, Adv.
Mr. Shailesh Madiyal, Adv.
Mr. Debashis R., Adv.
Mr. Sharath Narayan Nambiar, Adv.
Mr. Amit Verma, Adv.
Mr. Sudhanshu Prakash, Adv.
Mr. Vinayak Sharma, Adv.
Mr. Arvind Kumar Sharma, AOR
UPON hearing the counsel the Court made the following
O R D E R
Delay condoned.
The appeal is dismissed in terms of the signed reportable judgment.
Pending application(s), if any, shall stand disposed of. (MANISH SETHI) (SAROJ KUMARI GAUR) COURT MASTER (SH) BRANCH OFFICER (Signed reportable judgment is placed on the file)