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CASE NO.: Appeal (civil)  4356 of 2006

PETITIONER: P.K. Kapur                                                    \005Appellant

RESPONDENT: Union of India and Others                                   \005Respondents

DATE OF JUDGMENT: 01/02/2007

BENCH: Dr. Arijit Pasayat & S. H. Kapadia

JUDGMENT: J U D G M E N T

KAPADIA, J.

       By filing writ petition in the Delhi High Court,  petitioner (appellant herein), a retired Lieutenant Colonel  (Time Scale), sought weightage of 8 years to be added to the  actual qualifying service as also enhancement of percentage  of disability, in short, he asked for refixation of the pension.

       The facts giving rise to the writ petition are as follows.

       In 1962 appellant was commissioned as an officer in  Indian Army.  This was during National Emergency created  by Chinese invasion.  He was an officer in the Sikh Light  Infantry.

       In 1965 while fighting in Jammu and Kashmir sector  against Pakistani troops appellant got a shell injury in his  left shoulder.  After war, he was retained in service, granted  permanent commission and allowed to work till 30.11.89  when he was released on superannuation on completion of  51 years of age after putting in qualifying service of 26  years.  Before his retirement appellant was subjected to  examination by the Medical Board which assessed the  appellant’s war injury disability at 30%, permanent for life.

       During the period 30.11.89 to 25.10.99 the appellant  was given 8 years weightage (in years) to be added to his  qualifying service in order to compute his service pension.   He was also notified for war disability pension for which he  was paid arrears with effect from 30.11.89.

       At this stage, it may be noted that the Report of the  Fourth Pay Commission came on 30.10.87.  As stated  above, appellant retired on 30.11.89.  When he retired, in  1989, he was allowed weightage of 5+3 (in years) in order to  protect his pension.  He was entitled to weightage of 5 but  since his pension fell below that payable to a Major he was  given an additional weightage of 3.  At the relevant time, till  Fifth Pay Commission Report, there was integrated pay  scale in existence.  Appellant was entitled to 5 years  weightage under the Fourth Pay Commission, however,  because of integrated pay scale his pay became less than a  Major in the Indian Army with 5 years weightage admissible  to Lieutenant Colonel in the Time Scale (TS).  Therefore, in  order to protect his pay he was given an additional  weightage of 3 years so that his pension remained more

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than that of a Major.  Appellant enjoyed the benefit of 8  years weightage for 10 years between the date of his  retirement on 30.11.89 and 25.10.99.  However, after Fifth  Pay Commission Report appellant was informed that  calculation of pension will be done on the basis of last rank  held by him and on the basis of revised pay scale  introduced under Fifth Pay Commission Report with effect  from 1.1.96.  With the revision in pay scale appellant was  given the original weightage of 5 years because after the  Report of the Fifth Pay Commission the salary structure  was so revised under which the pension payable to a  Lieutenant Colonel (TS) became more than the pension  payable to a Major and consequently the protected  weightage of 3 (8-5) stood withdrawn.  This has been  challenged by the appellant.   

As stated above in the writ petition, the appellant also  claimed enhancement of percentage of disability.  According  to the appellant, under Government of India, Ministry of  Personnel, vide Circular No.45/22/97-P&PW(C) dated  3.2.2000, the percentage of disability stood enhanced from  30% to 50% in case of junior officers in the armed forces  who were in service on 1.1.96.  Appellant contended that he  was also entitled to such enhancement and that  Government of India was not entitled to discriminate in this  regard junior officers who retired before 1.1.96 and those  who are in service on or after 1.1.96.         Both these challenges failed as can be seen from the  impugned judgments of the High Court in W.P. (C)  No.268/2001 dated 8.11.2004 and Review Petition  No.438/2004 dated 15.12.2004.  Hence, this civil appeal.

       Appellant appeared in-person.  On the first point he  submitted that he was given a weightage of 8 for 10 years  between 1989 and 1999 and there was no reason for  reducing the weightage from 8 to 5 after the Report of the  Fifth Pay Commission.  He submitted that on account of  the above reduction in weightage he has suffered a  monetary loss of Rs.445 per month.  He submitted that the  policy of the Government giving weightage, to be added to  the actual qualifying service rendered for computation of  service pension, was arbitrary and discriminatory having no  nexus with the object sought to be achieved, namely, equal  opportunity of earning full pension.  He submitted that  other Ranks except that of Lieutenant Colonel (TS) are  given the benefit of 58 years for computation of pension by  adding the weightage of number of years to the prescribed  retirement age and thus he was not given equal opportunity  of earning full pension in relation to other Ranks.  This,  according to the appellant, was discriminatory.  The  appellant further submitted that there was no reason for  Government of India to prescribe different weightage for  different Ranks.  He submitted that fixation of 5 years  weightage in his case for computation of service pension  was against the basic object having no rational relation  with the object of enabling him to get 33 years of qualifying  service to earn full pension which has been denied due to  comparatively early retirement age in relation to his civil  counterparts and in relation to senior service officers.   Thus, according to the appellant, the policy of fixing  different weightages for different Ranks was arbitrary and  violative of Article 14 since the said policy fails to comply  the twin tests, namely, that the classification must be  founded on an intelligible differentia which distinguishes  those that are grouped together from others and that

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differentia must have a rational relation to the object  sought to be achieved by the Act.  In this connection, the  appellant placed reliance on the judgment of this Court in  the case of B.S. Nakara v. Union of India \026 AIR 1983 SC  130.  Appellant submitted, in this connection, that the  standard length of qualifying service for entitlement of full  pension has been fixed at 33 years for all civilian and  service officers.  Previously it was not so.  Previously it  depended upon the Rank in question.  Appellant submitted  that, however, now the retirement age of the service officers  varies from 50 to 52 years, in the case of junior officers,  compared to their civilian counterparts who retire at the  age of 58 years and as compared to senior officers in the  Army who retire at the age of 60.  In order to remove this  disparity, according to the appellant, weightage was  granted in terms of number of years to be added to the  actual qualifying service rendered so that junior officers get  equal opportunity of benefit of 33 years of service for  entitlement of full pension.  Appellant submitted that  reducing the weightage in his case from 8 years to 5 years,  after the Report of the Fifth Pay Commission, was  discriminatory as he is deprived of equal opportunity of  earning full pension admissible on completion of 33 years  of service.  In this connection, he has placed reliance on a  table/chart submitted by him in the special leave petition  paper book at page 29.  Placing reliance on this chart, he  submitted that all other Ranks in the Army are getting  benefit of 58 to 60 years of qualifying service for pension by  an addition of weightage comprising of the number of years  whereas in the case of Lieutenant Colonel (TS) the  qualifying service on addition of 5 years weightage comes to  56 years for pension and, therefore, the impugned policy in  O.M. No.1(S)/87/D dated 30.10.87 was totally arbitrary  and violative of Article 14 of the Constitution.  He  submitted that the appellant who retired as a Lieutenant  Colonel in the time scale got the benefit of 5 years of service  (51+5) while other junior and senior Ranks got the benefit  of 58 to 60 years for pension.

       We do not find any merit in the above submission  made by the appellant on the first point for the following  reasons.

       Firstly, under O.M. dated 30.10.87 the expression  "qualifying service" has been defined to mean actual  qualifying service rendered by an officer plus a weightage  (in years) appropriate to the last Rank held by the officer  subject to the total qualifying service including weightage  not exceeding 33 years.  It is interesting to note that under  the said O.M. dated 30.10.87 Lieutenant Colonel (TS) in the  Army, Commander (TS) in the Navy and Wing Commander  (TS) in the Air Force are all given weightage of 5.  Further,  the very definition of the word "qualifying service" in the  O.M. dated 30.10.87 indicates that the weightage (in years)  is given appropriate to the last Rank held.  In other words,  weightage has a nexus with the Ranks.  Further, the  definition of the word "qualifying service" also indicates that  there is a ceiling/outer limit placed on the amount of  pension payable which will not exceed the total qualifying  service of 33 years.  Applying this O.M. to the facts of the  present case we find that appellant was all throughout  entitled to weightage of 5 but at the relevant time when he  retired in 1989 there existed what is called as integrated  pay scale.  The consequence of the integrated pay scale was  that with 5 years weightage the appellant was entitled to

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pension the quantum whereof was less than that of a  Major.  To protect his pension, the appellant was given a  weightage of 3 additional points (in years).  At this stage, it  may be clarified that the appellant retired on 30.11.89 after  completing actual qualifying service of 26 years.  With the  weightage of 8, the total qualifying service became 34 and,  therefore, in effect he was given a weightage of 7 because,  as stated above, under the O.M. dated 30.10.87 the  qualifying service could not got beyond the ceiling of 33  years.  However, with the coming into force the Fifth Pay  Commission, Government of India had to refix the pension  because under the Report of the Fifth Pay Commission  there was a revision of pay scale introduced with effect from  1.1.96 for the Rank of Lieutenant Colonel and other Ranks.   Further, after the Fifth Pay Commission the integrated pay  Scale system was abolished and a separate pay scale was  provided for Lieutenant Colonel (TS) with 5 years weightage  which was there even under the Fourth Pay Commission.   The result was that the appellant’s pay scale was revised  under the Fifth Pay Commission which was the basis for  qualifying pension.  Consequently, the pension of  Lieutenant Colonel (TS) even with the weightage of 5 years  became more than the pension admissible to Major with the  weightage of 8 years.  In this connection, a chart has been  submitted by the Union of India which indicates Rs.6400/-  per month to be pension for a Major with 33 years service  including 8 years weightage whereas pension admissible to  Lieutenant Colonel (TS) with 31 years of qualifying service  including 5 years weightage to be Rs.6905/- per month.   Therefore, after the Fifth Pay Commission, on account of  increase in the pay scales, pension admissible to  Lieutenant Colonel (TS) with 31 years of service including 5  years weightage is more than the pension admissible to a  Major with 33 years service including 8 years weightage.   Therefore, there is no loss to the appellant as alleged.   Appellant claims 8 years weightage even after Fifth Pay  Commission under which his salary has been revised.  He  claims weightage of 8 to be added to the actual service  rendered by him so that his qualifying service becomes 33  and he claims accordingly a pension at the rate of  Rs.7350/- per month whereas he is entitled to Rs.6905/-  per month.  Therefore, there is no loss suffered by the  appellant as alleged.  Appellant is getting pension which is  more than that of the Major, therefore, he is not entitled to  8 years weightage.  However, he has been given a weightage  of 5 years.  In other words, the protected weightage of 3  points is removed because after Fifth Pay Commission he  earns pension more than that of the Major which was not  there during the period 1989 to 1999.  Secondly, it is well  settled in law that Article 14 permits class legislation and  not classification based on intelligible differentia which  distinguishes those that are grouped together from others  and that differentia must have a rational relation to the  objects sought to be achieved by the Act.  In the case of  Union of India v. P.N. Menon and others \026 (1994) 4 SCC  68, this Court has held that pay revision can invite a cut-off  date.  In matters of pay fixation it is the pay commission  which is entitled to take into account various parameters  depending upon the nature of posts, the pay scales  attached to those posts, the duties attached to those posts,  the qualifications attached thereto, the manner of  calculating the retirement benefits etc.  Both under Fourth  Pay Commission and Fifth Pay Commission the weightage  of 5 is retained.  Appellant was always entitled to weightage  of 5.  He was given the weightage of 3 additional points only

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to protect his pension.  This protection was given because  his pension was falling below the pension admissible to a  Major.  Under Fourth Pay Commission the Government  followed integrated pay-scale system whereas under Fifth  Pay Commission not only the pay scales stood revised but a  separate pay scale was prescribed for Lieutenant Colonel  (TS).  The pay scale so prescribed was the basis for  computation of the pension.   Be that as it may, even  assuming for the sake of the argument that Article 14 was  applicable, the O.M. dated 30.10.87 clearly shows that the  weightage had nexus with the last Rank and the period of  33 years qualifying service was an outer limit of qualifying  service for calculating pension.  Further, the weightage of 5  is given under the said O.M. to Lieutenant Colonel (TS) in  the Army, Commander (TS) in the Navy and Wing  Commander (TS) in the Air Force.  Therefore, weightage (in  years) was given under the said O.M. to the equivalent  Ranks in Army, Navy and Air Force.  Therefore, there is no  violation of Article 14 of the Constitution.

       Now, coming to the second challenge concerning  "enhancement of percentage of disability", appellant has  submitted that Government of India had vide O.M. dated  3.2.2000 enhanced the percentage of disability for Armed  Forces officers including junior officers in service on or after  1.1.96.  Since, the appellant retired on 30.11.89 this  enhancement of percentage of disability was not admissible  in the case of the appellant.  Appellant submitted that there  was no reason for denying enhancement of percentage of  disability to junior officers in the Indian Army who retired  prior to 1.1.96.  Fixation of this cut-off date of 1.1.96,  according to the appellant, is arbitrary, irrational and  violative of Article 14 of the Constitution.  Appellant  submitted that one of the facets of Article 14 is that it  eschews arbitrariness in any form.  Appellant submitted  that this Court in the case of Nakara (supra) has observed  that Article 14 condemns discrimination in any form.  He  submitted that there is no rational for excluding officers  from the benefit of enhancement merely because they stood  retired prior to 1.1.96.  Appellant, therefore, submitted that  O.M. dated 3.2.2000 should be made applicable to officers  who have retired even prior to 1.1.96.

       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 been 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 invalided out of service.  This provision is  not applicable to the appellant who retired on  superannuation prior to 1.1.96.  Appellant was not  invalided out of service.  He completed his normal tenure of  service.  The benefit of enhancement is given to those  officers who stood invalided out of service because their

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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-‘- 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.

       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 at the time of recruitment, he would be treated as  invalided from service.  Appellant contended that he was  released in a lower medical category from service on  30.11.89 then what he was at the time of recruitment and,  therefore, he should be treated as invalided from service  with effect from the date of release for the purpose of grant  of disability pension.

       We do not find any merit in the third submission.   Appellant retired on 30.11.89 on superannuation.  He was  never invalided.  He now claims to be invalided out of  service.  Having stood retired from service after completing  full tenure of service, appellant cannot now claim that he  was invalided 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.   

       For the aforestated reasons, we do not see any merit  in this civil appeal and the same is dismissed with no order  as to costs.