IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.1364 of 2008 Date of Decision: March 16, 2009 Sis Ram .....PETITIONER(S) VERSUS The Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. R.S. Panghal, Advocate, for the petitioner. Ms. Geeta Singhwal, Central Government Standing Counsel, for the respondents. . . . AJAI LAMBA, J (Oral) This civil writ petition filed under Article 226/227 of the Constitution of India prays for issuance of directions to the respondents to compute the disability element of pension payable to the petitioner @ 50% as per Government of India decision on recommendations of 5th Central Pay Commission and Letter dated 7.5.2007 (Annexure P-5). Learned counsel for the petitioner has argued that the petitioner is an ex-serviceman who served the Indian Army. While in Army, the petitioner became disabled with 100% disability and CWP No.1364 of 2008 [2] was invalided out on medical grounds after examination by the Release Medical Board on account of mental disease. Periodically, the petitioner was re-assessed by Re-survey Medical Board. Disability of the petitioner was subsequently reduced to 20% for life. Last medical re-survey was conducted in the year 2003 and the petitioner was granted disability pension @ Rs.310/- which is 20% of the disablement for life. Learned counsel for the petitioner states that the respondents were requested to revise the disability element of pension to 50% as per Para 7.1 and 7.2 of Letter dated 31.1.2001 (Annexure P-2) issued by the Government of India, Ministry of Defence, New Delhi. The Government of India implemented the provisions of Annexure P-2 to the personnel who were in receipt of disability pension on or before 1.1.1996 under Letter dated 16.5.2001 (Annexure P-3). The petitioner was not paid disability element of pension for 50% disability and therefore, the petitioner was constrained on issuing legal notice dated 16.4.2007 (Annexure P-4). The claim of the petitioner has been declined vide impugned order, Annexure P-5, on the ground that Letter dated 31.1.2001 (Annexure P-2) was not applicable to the facts of the case of the petitioner. Learned counsel for the petitioner has further contended that case of the petitioner is CWP No.1364 of 2008 [3] squarely covered by judgment rendered by Division Bench of this Court in Civil Writ Petition No.9979 of 2005, titled ‘Naib Subedar Ravinder Kumar (Retired) vs. Union of India & Others’ decided on 17.8.2006 that has been placed on record as Annexure P-6. Learned counsel for the respondents states that the provisions of the letter (Annexure P-2) are clear that only those personnel who were in service on 1.1.1996 or had joined service thereafter, would be entitled to pension after considering the Scheme of Rounding Off as provided under Letters, Annexures P-2 and P-3. Since admittedly, the case of the petitioner does not fall in that category, the petitioner having been invalided out in the year 1974, he is not entitled to the benefit. Learned counsel for the respondents, however, has not been able to distinguish the case of the petitioner from that in Ravinder Kumar’s case (supra). I have heard the learned counsel for the parties and considered the issue involved in this petition. The relevant portion of Annexure P-2 in the context of case of the petitioner, reads as under:- “Part I – Date of effect and Definitions: 2.1 The provisions of this letter shall apply to the Armed Forces personnel who were in service on 1.1.1996 or joined/join service thereafter unless otherwise specified in CWP No.1364 of 2008 [4] this letter.” Reference is also required to be made to the Scheme of Rounding Off as contained in Annexure P-2:- “7.2 Where an Armed Forces personnel is invalided out under circumstances mentioned in para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:- “Percentage of disability as assessed by invaliding Medical board. Percentage to be reckoned for computing of disability element. Less than 50 50 Between 50 and 75 75 Between 76 to 100 100” The relevant portion of Annexure P-3 dated 16.5.2001 reads as under:- “Disability/War Injury Pension: 6. For pensioners in receipt of disability pension as on 1.1.96 with effect from 01 Jan.96, the rates of disability element for 100% disability in non-battle casualty cases shall be the rates as indicated in para 7.1(II)(a) of this Ministry’s letter No.1(2)/97/D(Pen-C) dated 31 Jan.2001. Where the disability of a pensioner is less than 100% but not less than 20% the rates of disability element will be proportionately reduced.” The provisions of Letter dated 31.1.2001 (Annexure P-2) and Letter dated 16.5.2001 (Annexure P-3) make it evident that the provisions have been made applicable to personnel who were in service on 1.1.1996 or joined service thereafter. For percentage of disability of less than 50%, a person is required to be reckoned for computing of disability element of 50%. Disability between 50 to 75%, 75% has to be given and disability between 75 CWP No.1364 of 2008 [5] to 100 %, 100% has to be given. This Court while considering the issue in Ravinder Kumar’s case (supra) who had been discharged from service before 1.1.1996 i.e. 31.7.1993, has considered the contents of the letters. The issue has been considered in the following terms:- “The argument of respondent is totally devoid of merit when it is argued that the revised disability percentage is not applicable to the petitioner as he had retired on 31.7.1993 whereas the letter dated 31.01.2001 has come into operation w.e.f. 1.1.1996. We have considered the said contention and are of the opinion that in view of the Judgment or the Supreme Court in the case of Subrata Sen Vs. Union of India 2001 (4) SCT 424, the cut off date is not applicable in the present case of revision of pension. It was specifically held in the said judgment that any revision of pension scheme will be operative for all the pensioners and there is no question of providing any cut off date. The cut off date is justified only where the pension fund is created by contribution by employer and employees. The aforementioned view has been followed and applied in cases of State of West Bengal Vs. West Bengal Pensioners Association 2002(2) SCC 179 and Pensioners Association, Ex. Assam Oil Officers Vs. Union of India 2004(3) SCC 265. In view of the above discussion, we are of the considered view that the writ petition deserves to be allowed. Accordingly, the impugned order dated 14.01.2005 (Annexure P-4) is quashed and it is held that the petitioner is entitled to the assessment of pension in the rank of Nb. Subedar (JCO) as per Regulation 180 of the Regulations with effect from the date of his retirement. We direct the respondents to refix the pension. However, the arrears shall be confined to three years and two months preceding the date of filing of the writ petition i.e. 4.7.2005. It is further held that for the purpose of computing the disability element, 20@ of the disability assessed by the Medical Board shall be reckoned as 50%, as per the letter dated 31.01.2001 w.e.f. 1.1.1996. The amount shall be calculated and arrears would like wise be paid to the petitioner for the period preceding three years and two months from the date of filing of the writ petition i.e. 4.7.2005.” I am of the considered opinion that the case of the petitioner is covered by the judgment rendered in Ravinder Kumar’s case (supra). The petition is accordingly allowed. CWP No.1364 of 2008 [6] Order dated 7.5.2007 (Annexure P-5) is quashed. The petitioner would be entitled to disability pension while reckoning disability at 50% for computing pension. The amount shall be calculated and arrears would likewise be paid to the petitioner for the period preceding three years and two months from the date of filing of the writ petition i.e. 28.1.2008. (AJAI LAMBA) March 16, 2009 JUDGE avin