REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5591 OF 2006

K.J.S. Buttar .. Appellant

-versus-

Union of India and Anr. .. Respondents  

J U D G M E N T

Markandey Katju, J.

1. This appeal has been filed against the judgment and order dated  

13.9.2004 in C.W.P. No.20447 of 2002 of the High Court of Punjab  

and Haryana at Chandigarh.

2. Heard learned counsel for the parties and perused the record.  

3. The  appellant  is  an  ex-captain  in  the  Indian  Army,  who  was  

commissioned  on  12.1.1969.   During  the  course  of  his  service,  the  

appellant  suffered  serious  injuries  of  a  permanent  nature  and  was

invalided out of service.  The Release Medical Board held on 3.1.1979  

viewed  his  injury  ‘gun  shot  wound  left  elbow’  as  attributable  to  

military service and assessed the degree of disability at 50% and the  

appellant  was  released  from  service  in  Low  Medical  Category  on  

10.4.1979.  Accordingly, the appellant was granted Disability Pension  

w.e.f. 26.7.1979.      

4. The appellant  filed  a  writ  petition in  the  High Court  claiming  

following  benefits  under  Circular  and  Notification  issued  by  the  

Ministry of Defence, Union of India from time to time :

“a) War  Injury  Pension w.e.f. 1.1.1996 in terms of            Ministry of Defence letter dated 31.1.2001;

b) Treating the disability at 75% instead of 50%  w.e.f.  1.1.1996  as  per  Ministry  of  Defence  letter dated 31.1.2001;

c) Grant of service element for full  10 years of  service instead of 2 years; and

d) Revision of the rates of the disability pension  w.e.f.  1.1.1996  in  terms  of  the  letter  dated  31.1.2001.

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It  is  pertinent  to  state  that  the  Ministry  of  Defence  letter  dated  

31.1.2001 had revised the rates pursuant to recommendations of Fifth  

Pay Commission.

5. The appellant was denied the above benefits by the respondent on  

the basis  that  he retired  before  1.1.1996,  and hence in terms of the  

notification dated 31.1.2001 he could not get the said benefits as they  

were granted to officers who retired on or after 1.1.1996.  The appellant  

contended that that in view of the instruction issued on 31.1.2001 and  

subsequent  instructions  the  said  benefits  are  available  to  those  who  

were invalided even prior to 1.1.1996.  In addition, the appellant also  

prays that his disability should be treated as 75% instead of 50% in  

terms of clause 7.2 of the subsequent instructions.   

6. The appellant had been granted the short service commission in  

the Indian Army on 21.1.1969.  According to him while participating in  

the exercise conducted with live ammunition, he suffered gun shot on  

his left elbow and  as a result the appellant was relieved from Indian  

Army with 50% disability on 10.4.1979.   

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7. A  counter  affidavit  was  filed  by  the  respondent  in  the  writ  

petition in which it was alleged that instruction dated 1.1.1996 is not  

applicable to the appellant.  It was also contended that as regards the  

instruction dated 31.1.2001 it is not applicable to the appellant as he  

had not retired but was invalided out.  With regard to the instruction  

dated 16.5.2001 it  was alleged that the said instruction is applicable  

only  with  respect  to  paragraph  7.1(ii)(a)  of  the  instruction  dated  

31.1.2001, and it has no application to the appellant.  

8. The High Court in the impugned judgment held that paragraph  

7.2  of  the  instructions  dated  31.1.2001  is  not  applicable  to  the  

appellant.  With respect we cannot agree.

9. As regards the claim of the appellant for pension for his full 10  

years service as a short service commission officer, we have already  

held in Union of India & Anr.  vs.  C.S. Sidhu 2010(4) SCC 563 that  

this claim is justified.  Hence his entire service in the army has to be  

taken into consideration for grant of Disability Pension and he must be  

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given arrears with interest  @ 8% per annum as was granted in  C.S.  

Sidhu’s case.    

10. The stand of the respondent is that the disability of the appellant  

cannot be enhanced to 75% because the relevant provision being para  

7.2 of Government of India, Ministry of Defence, letter dated 31.1.2001  

is applicable only to those cases where the officer was invalided out of  

service after 1.1.1996.  It is alleged that the appellant was invalided out  

much before the date.  

11. In our opinion, the restriction of the benefit to only officers who  

were invalided out of service after 1.1.1996 is violative of Article 14 of  

the Constitution and is hence illegal.  We are fortified by the view as  

taken by the decision of this  Court  in  Union of India & Anr.  vs.  

Deoki Nandan Aggarwal 1992 Suppl.(1) SCC 323, where it was held  

that the benefit of the Amending Act 38 of 1986 cannot be restricted  

only to those High Court Judges who retired after 1986.

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12. In State of Punjab vs. Justice S.S. Dewan (1997) 4 SCC 569 it  

was held that if it is a liberalization of an existing scheme all pensioners  

are to be treated equally, but if it is introduction of a new retrial benefit,  

its benefit will not be available to those who stood retired prior to its  

introduction.  In our opinion the letter of the Ministry of Defence dated  

31.1.2001 is only liberalization of an existing scheme.

13. In  Union of India & Anr.  vs.  S.P.S. Vains (Retd.) & Ors.  

2008(9) SCC 125 it was observed :

“26. The said decision of the Central Government does  not  address  the  problem of  a  disparity  having  created  within the same class so that two officers both retiring as  Major Generals, one prior to 1-1-1996 and the other after  1-1-1996, would get  two different amounts of pension.  While the officers who retired prior to 1-1-1996 would  now get the same pension as payable to a Brigadier on  account of the stepping up of pension in keeping with the  fundamental rules, the other set of Major Generals who  retired after 1-1-1996 will get a higher amount of pension  since they would be entitled to the benefit of the revision  of pay scales after 1-1-1996.   

27. In our view,  it  would be arbitrary to allow such a  situation  to  continue  since  the  same  also  offends  the  provisions of Article 14 of the Constitution.   

28. The question regarding creation of different classes  within  the  same cadre  on  the  basis  of  the  doctrine  of  intelligible differentia having nexus with the object to be  achieved, has fallen for consideration at various intervals  for the High Courts as well as this Court, over the years.  

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The said question was taken up by a Constitution Bench  in  D.S. Nakara where in no uncertain terms throughout  the  judgment  it  has  been  repeatedly  observed  that  the  date of retirement of an employee cannot form a valid  criterion for classification, for if that is the criterion those  who retired by the end of the month will form a class by  themselves. In the context of that case, which is similar  to that of the instant case, it was held that Article 14 of  the Constitution had been wholly violated, inasmuch as,  the  Pension  Rules  being  statutory  in  character,  the  amended  Rules,  specifying  a  cut-off  date  resulted  in  differential and discriminatory treatment of equals in the  matter  of  commutation  of  pension.  It  was  further  observed that it would have a traumatic effect on those  who  retired  just  before  that  date.  The  division  which  classified  pensioners  into  two  classes  was  held  to  be  artificial  and  arbitrary  and  not  based  on  any  rational  principle and whatever principle,  if there was any,  had  not only no nexus to the objects sought to be achieved by  amending the Pension Rules, but was counterproductive  and ran counter to the very object of the pension scheme.  It  was  ultimately  held  that  the  classification  did  not  satisfy the test of Article 14 of the Constitution.   

30. However,  before  we give such directions  we must  also observe that the submissions advanced on behalf of  the  Union of  India  cannot  be  accepted  in  view of  the  decision in  D.S. Nakara case.  The object  sought to be  achieved was not to create a class within a class, but to  ensure that the benefits of pension were made available  to  all  persons  of  the  same  class  equally.  To  hold  otherwise  would  cause  violence  to  the  provisions  of  Article 14 of the Constitution. It could not also have been  the  intention  of  the  authorities  to  equate  the  pension  payable to officers of two different ranks by resorting to  the step-up principle envisaged in the fundamental rules  in  a  manner  where  the  other  officers  belonging to  the  same cadre would be receiving a higher pension.”

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14. In our opinion the appellant was entitled to the benefit of para 7.2  

of  the  instructions  dated  31.1.2001  according  to  which  where  the  

disability is assessed between 50% and 75% then the same should be  

treated as 75%, and it makes no difference whether he was invalided  

from service before or after 1.1.1996.  Hence the appellant was entitled  

to the said benefits with arrears from 1.1.1996, and interest at 8% per  

annum on the same.

15. It may be mentioned that the Government of India Ministry of  

Defence had been granting War Injury Pension to pre 1996 retirees also  

in terms of para 10.1 of Ministry’s letter No.1(5)/87/D(Pen-Ser) dated  

30.10.1987 (Page 59 Para 8).  The mode of calculation however was  

changed by Notification dated 31.1.2001 which was restricted to post  

1996 retirees.  The appellant, therefore, was entitled to the War Injury  

Pension  even  prior  to  1.1.1996  and  especially  in  view  of  the  

instructions dated 31.1.2001 issued by the Government of India.  The  

said instruction was initially for persons retiring after 1.1.1996 but later  

on by virtue  of  the  subsequent  Notifications  dated 16.5.2001 it  was  

extended to pre 1996 retirees also on rationalization of the scheme.  As  

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per  the  Instructions,  different  categories  have  been  provided  by  the  

Government  for  award  of  pensionary  benefits  on  death/disability  in  

attributable/aggravated  cases.   As  per  Para  10.1  of  the  Instructions  

dated  31.1.2001,  where  an  Armed Forces  personnel  is  invalided  on  

account  of  disability  sustained  under  circumstances  mentioned  in  

Category-E(f)(ii) of Para 4.1, he shall be entitled to War Injury Pension  

consisting  of  service  element  and  war  injury  element.   Para  4.1  

provides for the different categories to which the pensionary benefits  

are to be awarded.  Category-E(f)(ii) of Para 4.1 pertains to any death  

or disability which arises due to battle inoculation, training exercises or  

demonstration with live ammunition.  Appellant is entitled to the War  

Injury Pension in terms of Category-E(f)(ii) of Para 4.1 and Para 10.1  

of the Instructions dated 31.1.2001, which are reproduced hereunder for  

ready reference :-

Para 10.1

Where an armed forces personnel is invalided out  of  service  on  account  of  disability  sustained  under  circumstances  mentioned  in  category  ‘E’  of  para  4.1  above,  he/she  shall  be  entitled  to  war  injury  pension  consisting of service element and War Injury Pension as  follows :

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(a) Service  element   :  Equal  to  retiring/service pension which he/she  would  have  been  entitled  to  on  the  basis  of  his/her  pay  on  the  date  of  invalidment but counting service up to  the date on which he/she would have  retired  in  that  rank  in  the  normal  course  including  weightage  as  admissible.   Provisions  of  para  6  of  the  Ministry  of  Defence  letter  No.1/6/98/D(Pens/Ser) dated 3.2.1998  shall  apply  for  calculating  retiring/service  pension.   There  shall  be  no  condition  of  minimum  qualifying  service  for  earning  this  element.

(b) War  Injury  element  :  Equal  to  reckonable emoluments last drawn for  100% disablement.   However,  in  no  case the aggregate of service element  and war injury element should exceed  last pay drawn.  For lower percentage  of  disablement,  war  injury  element  shall be proportionately reduced.

Category ‘E”

Death or disability arising as a result of :-

(a) to (e)     xxx xxx xxx

(f)  War  like  situations,  including  cases,  which  are  attributable to/aggravated by :-

(i) extremist  acts,  exploding mines etc.,  while  on way to an operational areas;

(ii) battle  inoculation  training  exercises  for  demonstration with live ammunition;

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(iii) Kidnapping  by  extremists  while  on  operational duty

(g) to (i) xxx xxx xxx

These instructions, which were initially restricted  to  Armed  Forces  personnel,  who  retired  on  or  before  1.1.1996 were subsequently made applicable to the pre  1996  retirees  also  by  virtue  of  instruction  dated  16.5.2001.  Relevant  portion  of  the  Instruction/Notification  in  this  regard  is  reproduced  hereunder :-

Subject –  Rationalization  of  Pension  Structure for pre 1996 Armed Forces Pensioners –  Implementation  of  Government  decisions  on  the  recommendations  of  the  Fifth  Central  Pay  Commission.”   

16. As  per  para-6  of  these  instructions/letter  dated  16.5.2001,  any  

person, who is in receipt of disability pension as on 1.1.1996 is entitled  

to the same benefit as given in letter dated 31.1.2001.  Further as per  

para-7 of this letter w.e.f. 1.1.1996 the rates of War Injury element shall  

be the rates indicated in letter dated 31.1.2001.  Thus, in our opinion in  

view  of  the  instruction  dated  31.1.2001  read  with  our  opinion  

16.5.2001, the appellant was entitled to the War Injury Pension.  It is  

pertinent  to  state  that  reading  of  paras  6,  7  and  8  of  the  

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Notifications/Circular  dated  16.5.2001 makes it  absolutely  clear  that  

the said benefits were available to pre 1996 retirees also but the rates  

were revised on 31.1.2001 and the revised rates were made applicable  

to  post  1996  retirees  only.   But  subsequently  by  means  of  the  

Notification  dated  16.5.2001  the  revised  rates  were  extended  to  pre  

1996 retirees also.

17. At any event, we have held that there will be violation of Article  

14  of  the  Constitution  if  those  who  retired/were  invalided  before  

1.1.1996 are denied the same benefits  as given to those who retired  

after that date.  

18. The respondents submitted that the appellant was not entitled to  

the above benefits as he had retired on completion of his short service  

commission of 10 years and had not been invalided out of service.   In  

this connection it may be mentioned that the appellant was invalided  

out and released in a low medical category with permanent disability  

assessed at 50% by the Release Medical Board.  As per the Defence  

Service Regulation/Pension regulation for the Army 1961 where any  

officer is found suffering from disability attributable to or aggravated  

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by Military Service he shall be deemed to have been invalided out of  

service.   Relavant  provision (page 25 additional  documents)  read as  

under :-

“Officers Compulsorily Retired on account of Age or on  Completion of Tenure.

53.(1) An officer retired on completion of tenure 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 invalided out of service and shall be granted  disability  pension  from  the  date  of  retirement,  if  the  accepted degree of disability is 20 percent or more, and  service element if the degree of disability is less than 20  percent.  The retiring pension/retiring gratuity, if already,  sanctioned  and  paid,  shall  be  adjusted  against  the  disability pension/service element, as the case may be.

(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.”   

In  our  opinion  the  appellant  is  entitled  to  the  benefit  of  the  above  

Regulation.

19. As a result this appeal is allowed and we hold that the appellant is  

entitled to grant of War Injury Pension w.e.f. 1.1.1996.  The disability  

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element of the Disability Pension shall be commuted as 75% instead of  

50% and the appellant will be granted arrears w.e.f. 1.1.1996 with an  

interest  of  8%  per  annum.   He  will  also  be  granted  10  years’  

commission service and interest as granted in  C.S. Sidhu’s case from  

the date of his release.  The impugned judgment is set aside.

20.  The appeal is allowed. There shall be no order as to costs.       

……………………………..J. (Markandey Katju)

……………………………..J. (Gyan Sudha Misra)

New Delhi;  31st March, 2011

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