K.J.S. BUTTARversusUNION OF INDIA AND ANR.

                         [2011] 4 S.C.R. 136


A                           K.J.S. BUTTAR
                                   v.
                    UNION OF INDIA AND ANR.
                  (Civil Appeal No. 5591 of 2006)

                          MARCH 31, 2011
B
    [MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

        SERVICE LAW:

C       ARMED FORCES:

         Disability Pension and other consequential claims -
  Army-ex-Captain - Invalided for injury attributable to military
  service - Disability assessed at 50% in Low Medical Category
  - Disability Pension granted w.e.f. 26. 7. 1979 - Claims for War
D Injury Pension w.e.f. 1.1.1996 in terms of Ministry of Defence
  letter dated 31.1.2001 - Disability to be raised to 75% from
  50% - Grant of service element of 10 years of service instead
  of 2 years - Revision of rates of disability pension w.e.f.
  1. 1. 1996 - HELD: The restriction of the benefits only to officers
E who were invalided out of service after 1.1.1996 is violative
  of Article 14 of the Constitution - Letter dated 31.1.2001 is
  only liberalization of the existing Scheme - Claims allowed
  with 8% interest on arrears - Constitution of India, 1950 -
  Article 14.
F
         The appellant, an ex-Captain, had been granted Short
  Service Commission in the Indian Army on 21.1.1969.
  While participating in the exercise conducted with live
  ammunition, he suffered gun shot on his left elbow
G resulting into 50% disability. He was accordingly
  invalided out of service with Disability Pension w.e.f.
  26.7.1979. The appellant filed a writ petition claiming: (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
H                                 136
     K.J.S. BUTIAR v. UNION OF INDIA AND ANR.             137


at 75% ins.tead of 50% w.e.f. 1.1.1996 as per Ministry of        A
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.
                                                                 B
     The respondents resisted the claims of the appellant
on the ground that he had retired prior to 1.1.1996. The
High Court declined the reliefs. Aggrieved, the pensioner
filed the appeal.

    Allowing the appeal, the Court                               c
      HELD: 1.1. The claim of the appellant for pension for
his full 1O years service as a Short Service Commission
Officer, as has been held in C.S. Sidhu's case*, is justified.
Hence the entire service of the appellant in the army has        o
to be taken into consideration for grant of Disability
Pension and he must be given arrears with interest @ 8%
per annum. 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 hence illegal. The         E
letter of the Ministry of Defence datc:;d 31.1.2001 is only
liberalization of an existing scheme. [para 9.11-12] [142-
C-F-H; 143-A]
                                           \
     *Union of India & Anr. VS. C.S. Sidhu 2010(4) sec 563,
Union of India & Anr. vs. Deoki Nandan Aggarwal 1992             F
Suppl.(1) SCC 323, State of Punjab vs. Justice S.S. Dewan
(1997) 4 SCC 569, Union of India & Anr. vs. S.P.S. Vains
(Retd.) & Ors. 2008(9) sec 125- relied on.

     1.2. The appellant was entitled to the benefit of para _G
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. Therefore, the appellant was H
                               ··1   .
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   138      SUPREME COURT REPORTS             [2011) 4 S.C.R.

A entitled to the said benefits with arrears from 1.1.1996.
  [para 14] [144-F-G]

       1.3. It may be mentioned that the Government of
  India, Ministry of Defence had been granting War Injury
B 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
C 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 personers retiring after
  1.1.1996 but later on by virtue of the subsequent
  Notifications dated 16.5.2001 it was extended to pre-1996
D retirees also on rationalization of the scheme. [para 15)
  [144-H; 145-A-C]

       1.4. As per Para 10.1 of the Instructions dated
  31.1.2001, where an Armed Forces personnel is invalided
E 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
F 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
G Instructions dated 31.1.2001. [para 15) [145-C-E]
       1.5. As per para-6 of the 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
H this letter w.e.f. 1.1.1996 the rates of War Injury element
--
         K.J.S. BUTTAR v. UNION OF INDIA AND ANR.             139


     shall be the rates indicated in letter dated 31.1.2001. Thus,   A
     in view of the Instruction dated 31.1.2001 read with
     Instructions dated 16.5.2001, the appellant was entitled to
     the War Injury Pension. It is pertinent to state that a
     reading of paras 6, 7 and 8 of the Notifications/Circular
     dated 16.5.2001 makes it absolutely clear that the said         B
     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           c
     retirees also. [para 16] [147 -B-D]

         1.6. 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           D
     the Army 1961 where any officer is found suffering from
     disability attributable to or aggravated by Military Service
     he shall be deemed to have been invalided out of service.
     The appellant is entitled to the benefit of the above
     Regulation. [para 18) [147-F-G]                                 E

          1.7. The appellant is entitled to grant of War Injury
     Pension w.e.f. 1.1.1996. The disability element of the
     Disability Pension shall be commuted as 75% instead of
     50% and the appellant will be granted arrears w.e.f.            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 impu!;Jned judgment is set aside. [para 19] [148-F-G]
                         Case Law Reference:                         G
         2010(4) sec 563             relied on         para 9
         1992 Suppl.{1) sec 323 relied on              para 11
         (1997) 4 sec 569            relied on         para 12       Hi
                                                                     -
    140       SUPREME COURT REPORTS              [2011] 4 S.C.R.


A         2008(9) sec 12s            relied on         para 13
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5591 of 2006.

       From the Judgment & Order dated 13.9.2004 of the High
B Court of Punjab & Haryana at Chandigarh in CWP No. 20447
  of 2002.                                                  ·

          Seeraj Bagga (for Sureshta Bagga) for the Appellant.

C       P.P. Malhotra, Purnima Bhat, Anil Katiyar for the
    Respondents.

          The Judgment of the Court was delivered by

      MARKANDEY KATJU, J. 1. This appeal has been filed
D 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.
E
       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
F 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.
G        4. The appellant filed a writ petition in the High Court
    claiming foMowing benefits under Circular and Notification
    issued by the Ministry of Defence, Union of India from time to
    time:

H          "(a) War Injury Pension w.e.f. 1.1.1996 in terms of


                 \
    K.J.S. BUTIAR v. UNION OF INDIA AND ANR.                   141
                [MARKANDEY KATJU, J.]
            Ministry of Defence letter dated 31.1.2001;                A

      (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 ofservice element for full 10 years of service       B
            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. f.2001.
It is pertinent to state that the Ministry of Defence letter dated     C
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        D
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
mvalided even prior to 1.1.1996. In addition, the appellant also       E
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           F
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.
      7. A counter affidavit was filed by the respondent in the writ   G
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          H
                                                                       -
    142      SUPREME COURT REPORTS                [2011] 4 S.C.R.


A 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
8
  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
C 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 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
D 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
E 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.
F 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.
G      12. In State of Punjab vs. Justice S.S. Dewan (1997) 4
  sec 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
H our opinion the letter of the Ministry of Defence dated 31.1.2001
-
        K.J.S. BUTTAR v. UNION OF INDIA AND ANR.                   143
                  [MARKANDEY KATJU, J.]
    is only liberalization of an existing scheme.                          A
         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           B
        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              C
        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.                                      o
        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           E
        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.
        The said question was taken up by a Constitution Bench             F
        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          G
        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                H
                                                                           -
    144        SUPREME COURT REPORTS                 [2011] 4 S.C.R.


A         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,
B         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.
c         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
D         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
E         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."
        14. In our opinion the appellant was entitled to the benefit
F 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
G with arrears fron'l 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
H pre 1996 retirees also in terms of para 10.1 of Ministry's letter
      K.J.S. BUTIAR v. UNION OF INDIA AND ANR.                   145
               [MARKANDEY KAT JU, J.]

  No.1 (5)/87/D(Pen-Ser) dated 30.10.1987 (Page 59 Para 8).              A
  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            B
  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 per the Instructions, different
  categories have been provided by the Government for award              c
  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
                                                                         0
  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             E
__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                                                          F
            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            G
      follows:
       (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       H
     146            SUPREME COURT REPORTS                [2011] 4 S.C.R.


A                    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
B                    calculating retiring/service pension. There shall be
                     no condition of minimum qualifying service for
                     earning this element.
            (b)      War Injury eleme.nt: Equal to reckonable
                     emoluments last drawn for 100% disablement.
c                    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.
 D Category 'E"
           Death or disability arising as a result of :-
           (a) to (e) xxx                   xxx              xxx
           (f) War like situations, including cases, which are
E          attributable to/aggravated by :-
            (i)      extremist acts, exploding mines etc., while on way
                     to an operational areas;
            (ii)     battle     inoculation   training   exercises        for
F                    demonst~ation with live ammunition;

            (iii)    Kidnapping by extremists while on operational duty
            (g) to (i)    xxx         xxx            xxx
G                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
.H         is reproduced hereunder :-


                                                                   ·,.•
-
        K.J.S. BUTTAR v. UNION OF INDIA AND ANR.                147
                  [MARKANDEY KATJU, J.]
             Subject - Rationalization of Pension Structure for pre A
        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
                                                                      8
    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 C
    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
    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 D
    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 viol.ation   E
    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 F
    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 i1walided out and released in a low
    medical category with permanent disability assessed at 50%
    by the Release Medical Board. As per the Defence Service G
    Regulation/Pension regulation for the Army 1961 where any
    officer is found suffering from disability attributable to or
    aggravated by Military Service he shall be deemed to have
    been invalided out of service. Relavant provision (page 25 ·
    additional documents) read as under :-                           H
    148         SUPREME COURT REPORTS                 [2011) 4 S.C.R.


A          "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),
B          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
c          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.
D
           (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."
E
    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
F appellant is entitled to grant of War Injury Pension w.e.f.
  1.1.1996. The disability 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 1O years' commission service
  and interest as granted in C. S. Sidhu's case from the date of
G his release. The impugned judgment is set aside.
         20. The appeal is allowed. There shall be no order as to
    costs.

H   R.P.                                              Appeal allowed.