-1- Civil Writ Petition No.67 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: February 12, 2008. Paramjit Singh ... Petitioner VERSUS Union of India through Secretary, Ministry of Defence, New Delhi and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.Sandeep Bansal, Advocate, for the petitioner. Mr. I.S. Saggu, Advocate, for the respondents. -.- MOHINDER PAL, J. Brief facts of the case are that the petitioner was enrolled in the Indian Army on October 16, 1984 in Corps of Engineers. On March 25, 1998, he was posted in a field area in Jammu & Kashmir and while performing duties at insurgency prone area, sustained injuries due to IED blast -2- Civil Writ Petition No.67 of 2007. generated by the suspected anti-national elements/terrorists. He was treated as a case of Pott's fracture left ankle and was subsequently placed in low medical category (BEE Permanent). The Government treated the operation of the petitioner's Unit as a Full-fledged War. The petitioner was known as a case of Battle Casualty. He was operated for his injury on left ankle and a rod was inserted. It has been averred in the petition that disability of the petitioner was assessed at over 50% by the Medical Board. After the operation, the petitioner found it difficult to do his duties efficiently and gave his unwillingness for two years' extension in service. A Release Medical Board was ordered and the petitioner was recommended to be discharged from the Army. He was discharged from the Army on October 31, 2004 after rendering service of 20 years and 16 days. However, percentage of disability of the petitioner was reduced to 20%. He is getting service pension as well as disability pension at the rate of 20 %. The claim of the petitioner is that even though percentage of his disability is considered 20%, yet he is entitled be paid disability pension at the rate of 50% in view of the letter dated February 03, 2000 (Annexure P-1) issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners' Welfare, New Delhi. The petitioner has also claimed that he is entitled to Disability Benefit Cover under the Army Group Insurance Fund for his disability. -3- Civil Writ Petition No.67 of 2007. The claim of the petitioner has been contested by the respondents mainly on the ground that rounding off disability under the provisions of Para 7.2 of Government of India, Ministry of Defence, New Delhi letter No.1 (2)/97/D (Pen-C) dated January 31, 2001 is applicable to the individuals who were invalidated out of service on medical grounds. As the petitioner was discharged on completion of terms of engagement and not invalidated out from service, the relief sought for by him cannot be granted to him. It has been further averred that the petitioner is not entitled to Disability Benefit Cover under the Army Group Insurance Fund as he was discharged from service. It has also been pleaded that this Court has no territorial jurisdiction to adjudicate upon the matter. In the replication filed by the petitioner, the averments made in the writ petition have been reiterated besides pleading that he is being paid service pension and disability pension in the State of Punjab and, thus, the cause of action regarding grant of pension/full pension occurs to him at the place where he is being paid the pension. As such, this Court has territorial jurisdiction to entertain the writ petition. We have heard Mr.Sandeep Bansal, Advocate, appearing for the petitioner and Mr. I.S. Saggu, Advocate, appearing for the respondents and have gone through the records of the case. The respondents have denied the benefit of 50% disability pension and Disability Benefit Cover under the Army Group Insurance Fund to the petitioner only on the ground that -4- Civil Writ Petition No.67 of 2007. he was discharged from service on completion of terms of engagement and was not invalidated out from service. Thus, the only question involved in this petition is - whether the petitioner is entitled to benefits which are admissible to army personnel who are invalidated out of service or not. For answering this question, a resume of facts is necessary. The petitioner joined the Indian Army on October 16, 1984. On March 25, 1988, while he was performing his duties in the insurgency prone area in Jammu & Kashmir, he sustained injuries in a blast suspected to be the handiwork of anti-national elements/terrorists. He was operated upon for his injury on left ankle and a rod was inserted. He was placed in the category of BEE Permanent. As he was unable to perform his duties efficiently after his surgery, he gave his unwillingness for two years' extension in service. Thereafter, the Release Medical Board recommended the petitioner to be discharged from service. Thus, he was discharged from the Army on October 31, 2004 after he had rendered more than twenty years service. At this stage, reference to Regulation 179 of the Army Pension Regulations, 1961 (hereinafter referred to as `the Pension Regulations') is necessary and the same reads as under:- “179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of -5- Civil Writ Petition No.67 of 2007. 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 invalidated out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service 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 on the date of first removal from duty on account of that disease. Note: In the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement should not effect his title to the disability element under the provision of the above regulation. A perusal of the above provisions of Regulation 179 of Pension Regulations leaves no room for doubt that the -6- Civil Writ Petition No.67 of 2007. petitioner was invalidated out of service. The petitioner sustained injury/disability during service, which was attributable to and aggravated by military service and recorded by Service Medical Authorities. The note below Regulation 179 further makes it clear in the case of an individual discharged on fulfilling the terms of his retirement, his unwillingness to continue in service beyond the period of his engagement, as was given by the petitioner in the present case, should not effect his title to the disability element under Regulation 179 of the Pension Regulations. In this view of the matter, we have no hesitation in holding that the petitioner will be deemed to have been invalidated out of service and is entitled to disability pension as is admissible to defence personnel who are invalidated out of service. The letter dated February 03, 200 (Annexure P-1), relied upon by the petitioner, so far as relevant, reads as under:- “ Subject: Special benefits in cases of death and disability in service – payment of disability pension/family pension- recommendation of the Central Pay Commission. The undersigned is directed to say that the Fifth Central Pay Commission inter alia, recommended that for determining the compensation payable for death or disability under different circumstances, the cases could be broadly categorized in five distinct categories -7- Civil Writ Petition No.67 of 2007. as under:- Category `A' xx xx xx. Category `B' xx xx xx. Category `C' xx xx xx. Category `D' xx xx xx. Category `E' Death or disability arising as a result of (a) attack by or during action against extremists, anti-social element etc. and (b) enemy action in international war or border skirmishes and warlike situations, including cases which are attributable to (i) extremists acts, exploding mines etc. while on way to an operational area (ii) kidnapping by extremists; and (iii) battle inoculation as part of training exercises with live ammunition. 2. The Fifth Central Pay Commission recommended various relief packages for the above categories, in modification of the existing provisions on the subject. V. Disability pension – For cases covered under Category `E'. (1) xx xx xx. (2) xx xx xx. -8- Civil Writ Petition No.67 of 2007. (3) xx xx xx. (4) xx xx xx. (5) The Fifth Central Pay Commission also suggested certain procedural changes. These have also been considered by the Government. The President is now pleased to decide as under:- Percentage of Disability Percentage to Disability. be reckoned assessed for computation of disability pension. Less than 50 50 Between 50 and 75 75 Between 76 and 100 100” In view of the letter (Annexure P-1), quoted above, the petitioner having been unable to continue in military service because of the injury suffered by him due to IED blast generated by the suspected anti-national elements/terrorists while performing duties at insurgency prone area in Jammu & Kashmir, he would be deemed to have been invalidated out of service and is entitled to be given 50 % disability pension. As we have held that the petitioner would be deemed to have been invalidated out of service, the objection of the respondents that rounding off the disability pension under the provisions of Para 7.2 of Government of India, Ministry of Defence, New Delhi letter No.1 (2)/97/D (Pen-C) dated January 31, 2001 is -9- Civil Writ Petition No.67 of 2007. applicable to the individuals who were invalidated out of service on medical grounds, no more holds the field. Para 7.2 of the letter dated January 31, 2001, prescribes that where an Army Forces Personnel is invalidated out of service due to acts of violence/attack by terrorists, anti-social elements etc. and if the percentage of disability as assessed by Invalidating Medical Board is less than 50 %, the percentage to be reckoned for computing of disability element would be 50 per cent. For the aforesaid reasons, this petition is allowed and the petitioner is held entitled to 50% disability pension and to Disability Benefit Cover under the Army Group Insurance Fund for his disability. The disability pension at the rate of 50% with all consequential benefits will be paid to him from the date of his retirement. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE February 12, 2008. ak