C.W.P. No. 16263 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 16263 of 2006 Decided on : 17-03-2009 MWO ( Honorary Flying Officer) Amarjit Singh ....Petitioner VERSUS Union of India & others ....Respondents CORAM:-HON'BLE MR. JUSTICE AJAI LAMBA. Present:- Ms. Jyoti Sareen, Advocate for the petitioner. Ms. Renu Bal Sharma, Advocate, for the respondents. AJAI LAMBA, J This civil writ petition has been filed by Honorary Flying Officer Amarjit Singh under Articles 226/227 of the Constitution of India, praying for issuance of writ in the nature of certiorari for quashing order dated 15.10.2004 (Annexure P-1) and order dated 2.9.2005 (Annexure P-3) . Learned counsel for the petitioner contends that the petitioner is entitled to two claims i.e. disability after rounding of at the rate of 50% and also disability pension while taking into C.W.P. No. 16263 of 2006 -2- account the substantive rank held by the petitioner at the time of retirement. The petitioner has been allowed disability pension at the rate of 30%, however, taking into account the rank held by the petitioner at the point in time when the injury was sustained. Learned counsel for the respondents has not been able to dispute the case of the petitioner in the context of rounding of pension in view of letter dated 31.01.2001(Annexure P-4) issued by Government of India, Ministry of Defence. The claim of the petitioner in this regard stands conceded. In regard to the second claim, learned counsel for the respondents has relied on Regulation 160 (a) of Pension Regulations for Indian Air Force Part I, 1961, which has been placed on record as Annexure R-1. I have heard learned counsel for the parties and gone through the paper book. It has been brought out that the petitioner was enrolled in the Indian Air Force on 27.12.1962. On 10.10.1963, the petitioner while playing a Football game organized by the Unit, sustained an injury. The petitioner suffered a facture on the left hand. The petitioner was placed in lower medical category “CEE”. In 1970, the medical category was raised to “BEE”. Be that as it may, the petitioner was promoted to the C.W.P. No. 16263 of 2006 -3- Rank of Junior Warrant Officer in 1977, to the Rank of Warrant Officer in 1984 and to the rank of Master Warrant Officer in 1990. In 2002, the petitioner was promoted to the Rank of Honorary Flying Officer (Honorary Commissioned Officer). The petitioner was retired from service on 31.3.2002 with all pensionary benefits. The Medical Board considered the case of the petitioner for grant of disability element of pension. It is the admitted case of the respondents that the injury suffered by the petitioner was attributable to Air Force service. Initially, the assessment of disability was to the tune of 30% for 5 years. The petitioner, having been reassessed by Medical Board after expiry of 5 years, the disability was maintained at 30% and it was granted for life. These facts are not in dispute. Vide impugned order dated 15.10.2004 (Annexure P-1), the petitioner was notified that the amount of disability element was to be amended. The petitioner had been allowed disability pension while taking into account the rank of the petitioner as Junior Warrant Officer (JWO). By virtue of order (Annexure P-1), the disability pension was assessed while taking into account the rank of the petitioner as Air Craftman i.e. the rank held by the petitioner when he suffered the disability. Vide other impugned order dated 2.9.2005 (Annexure P-3), the representation of the C.W.P. No. 16263 of 2006 -4- petitioner has been rejected on both the accounts that have been pleaded before this Court. So far as rounding of is concerned, in letter (Annexure P-4) to which reference has been made in earlier part of the judgment, following has been provided:- “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 of the purposes of computing the disability element:- Percentage of disability Percentage to be reckoned as assessed by invaliding for computing of disability medical Board element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100” The legal position having not been disputed by the learned counsel for the respondents, it is held that the petitioner would be entitled to 50% disability pension as the disability of the petitioner has been assessed at 30%. In regard to the second claim of the petitioner, reference may be made to Regulation 159 of Pension Regulations for Indian Air Force Part I, 1961, which reads as under :- “159. For so long as promotions are made on paid acting basis, the service and disability elements shall be reckoned on the paid acting rank held by the individual C.W.P. No. 16263 of 2006 -5- on any of the following dates, whichever is the most favourable:- (a) the date of invalidating from service; xxx xxx xxx xxx xxx xxx xxx xxx” Contention of the learned counsel for the petitioner is that on the date of invalidating from service, the petitioner held the Rank of Honorary Flying Officer and, therefore, the most favourable condition, in the context of Regulation 159 reproduced hereinabove, would be if the petitioner is allowed disability pension considering the petitioner to be Honorary Flying Officer, at which rank the petitioner was retired. As against the above contention, learned counsel for the respondents has relied on Regulation 160 (a) to contend that the petitioner can be allowed disability pension while considering his rank, at which he sustained the injury. Regulation 160 (a) reads as under:- “Individuals remustered within the same group or from a higher to a lower group or vice versa 160. (a) An individual who was remustered from a higher to a lower group on being declared redundant after rendering 15 years or more of qualifying service, may be granted, where more favourable than the service element of disability pending otherwise admissible, a service element based on the rank and group held on the date he was declared redundant and the qualifying C.W.P. No. 16263 of 2006 -6- service rendered up to that date. (b) An Individual who was remustered to a new trade in the same or a higher group, but in a lower rank, for service reasons other than inefficiency or medical unfitness, but is invalided out without restoration of his rank held prior to remustering shall be granted, where more favourable than the disability pension otherwise admissible, a disability pension assessed on the rank and group held on the date of remustering but based on the qualifying service rendered up to the date of invaliding.” Learned counsel for the respondents, however, has not been able to show that the petitioner had been re-mustered from higher to a lower group or had been declared redundant. Such being the circumstances, the case of the petitioner obviously cannot be considered under Regulation 160 (a). The case of the petitioner is, accordingly, covered in Regulation 159. The case of the petitioner is also governed by a Division Bench judgment of this Court rendered in C.W.P. No. 9979 of 2005 decided on 17.8.2006 titled Nb. Sub. Ravinder Kumar vs. Union of India and others. The Division Bench had taken into account Regulation 180 of the Pension Regulations for the Army, 1961 (Part-I) to award relief to the petitioner therein. Regulation 180 is para materia with Regulation 159 of the Pension Regulations for the Army, 1961 (Part-I). Under the circumstances, the case of the petitioner is covered by the pronouncement in Nb. C.W.P. No. 16263 of 2006 -7- Sub. Ravinder Kumar's case In view of the above, this petition is allowed. Impugned orders dated 15.10.2004 (Annexure P-1) and dated 2.9.2005 (Annexure P-3), are hereby quashed. The petitioner would be allowed disability pension computing disability at 50% and taking into account his rank held by him at the time of retirement i.e. of Honorary Flying Officer. The petitioner would be allowed the relief from the date of retirement. 17th March, 2009. (Ajai Lamba) Monika Judge