P.K. Kapur Ã Appellant vs Union Of India And Others Ã Respondents

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

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.

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 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Colonel (TS) became more than the pension payable to a Major and consequently the protected weightage of 3 (8-5) stood withdrawn.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.

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.