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2010 DIGILAW 526 (HP)

UNION OF INDIA v. SITA DEVI

2010-03-17

KULDIP SINGH, R.B.MISRA

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JUDGMENT Per R.B. Misra, J.(Oral)-The present appeal has been preferred by the appellant-Union of India against the judgment, dated 5.7.2007, passed in CWP No. 868 of 2005 by learned Single Judge whereby disability pension from 20th November, 1977 to 2nd April, 1997 in respect of her husband, late Shri Ranbir Singh was allowed alongwith further grant of family pension to her. 2. It appears that the husband of the respondent, namely late Shri Ranbir Singh, was enrolled in Indian Army on 23rd September, 1955 and was invalidated out of service by the Medical Board held by the Military Hospital, Delhi on 8th October, 1959 and was discharged from service on 25th January, 1960, under the Army Rules, 1954 Rule 13 item III (iii) rendering only 4 years and 124 days. 3. It appears, late Shri Ranbir Singh was granted temporary disability pension from 25th January, 1960 to 19th March, 1977, which, however, was dis-continued from 20.11.1977 vide order dated 4th March, 1978 on the basis of re-assessment made indicating that his disability was reduced less than 20%. The appeal preferred by him was rejected on 17th January, 1979. The second appeal too was rejected in March, 1981. Late Ranbir Singh died on 2nd April, 1997. When the widow, i.e. the respondent, filed an appeal before the appropriate authority for grant of family pension, she was told vide letter, dated 7.5.1999 that she was not entitled to any family pension for the reason that disability pension of her husband was dis-continued from 20th November, 1997. The representation to that effect to Chief Comptroller of Defence Accounts (Pension) was not favourably decided. 4. It appears that a letter, dated 23rd December, 1992 was issued, whereby it was indicated that disability pension was to be paid to an individual for life even if the accepted degree of disablement fall short of 20%, with a rider that individuals invalided out of service before 1.3.1968 having 10 years of service or more to their credit and individuals invalided out of service on or after 1.3.1968, but before 31.12.1972 with more than five years or more service and the individuals invalided out of service on or after 1.1.1973 with any period of length of service. The relevant portions of the letter, dated 23.12.1992 are extracted hereinbelow:- “There appears to exists some misapprehension that service element will be continued for life even the accepted degree of disablement fall short of 20%. The factual rule position is given below:- The disability pension constitutes two elements (i) service element and (ii) disability element. The disability element, is payable for a limited period as notified in the pension payment order(s) notified from time to time unless it is notified for life. However, the service element of disability pension is payable for life only in respect of such individuals who were retired/discharged from service or invalided out of service as under: (i) Individuals invalided out of service before 01.03.68 with 10 years of more service. (ii) Individuals invalided out of service on or after 1-3.68 but before 31.12.72 with more than 5 years or more service. (iii) Individuals invalided out of service on or after 1.1.73 with any period of length of service. In view of the above provisions, the pension disbursing Authorities in the case of individuals at item (i) and (ii) above shall make payment of service element of disability pension for life only where it is specifically notified by the Controller of Defence Accounts (Pensions) in its pension Payment Order and in the absence of such specific authorization for life, the service element shall be payable only for the period for which disability element is authorized.” 5. It appears that late Shri Ranbir Singh was invalidated out of service on 25th January, 1960 after rendering four years and 124 days service and was denied disability pension only on the ground that disability had fallen short of 20% on the basis of re-survey medical board in the year 1977. 6. The writ petitioner placed reliance upon the decision of the High Court of Punjab and Haryana, passed in Gurnam Singh Vs. Union of India 1995 (4) SCT, 278, the relevant portion of which reads as under :- “From the documents which have been placed on record, it is clear that the petitioner was discharged from the military service on the ground of low medical category. He was given medical category ‘EEE’ at the time of discharge from the service. Annexure P-2 is conclusive proof of the fact that the petitioner was given disability pension. He was given medical category ‘EEE’ at the time of discharge from the service. Annexure P-2 is conclusive proof of the fact that the petitioner was given disability pension. This disability pension must have been given to the petitioner on fulfillment of the conditions enumerated in Regulations 173 of the Pension Regulations. By virtue of order (Annexure P-5) the Government of India took a policy decision to extend the benefit of the disability pension to the Army personnel below the officer rank who were granted disability pension at one time but whose disability fell below 20 per cent at a later stage. Annexure P-6 contains similar instructions regarding the grant of disability pension of those whose disability falls below 20 per cent. However, the instructions contained in Annexure P-6 have been made applicable only to those who were on the effective strength of the Army on 1.1.1973. If the petitioner has been discharged from the service after 1.1.1973, he would have become entitled to the grant of disability pension notwithstanding the fact that his disability was subsequently reduced below 20 per cent. Therefore, not it has to be seen whether the restricted application of the instructions contained in Annexure P-6 has got any rationality. There can be no manner of doubt that the petitioner was in receipt of the disability pension as on 1.1.1973 and he continued to draw the disability pension upto 20.8.1974. Some of the Army personnel who were discharged from service after 1.1.1973 and who were given disability pension after 1.1.1973 were placed at par with the petitioner. With reference to the object of giving the benefit of disability pension to those whose disability fell below 20 per cent, the petitioner and others who were discharged after 1.1.1973 constituted one class. With reference to the object aforementioned, there could be no rationales of confining the benefit of the disability pension only to those who were discharged after 1.1.1973. The entire object of extending the benefit of the disability pension even after the reduction of the degree of disability will be frustrated in the cases of the persons like the petitioner, who was actually in receipt of the disability pension on 1.1.1973 but whose disability fell below 20 per cent after 1.1.1973 are denied benefit of disability pension. The entire object of extending the benefit of the disability pension even after the reduction of the degree of disability will be frustrated in the cases of the persons like the petitioner, who was actually in receipt of the disability pension on 1.1.1973 but whose disability fell below 20 per cent after 1.1.1973 are denied benefit of disability pension. To me, fixation of the date as 1.1.1973 has absolutely no nexus with the object of granting the disability pension to those who were initially having the disability of 20 per cent or more but whose degree of disability reduced at a later point of time. To this extent the provisions contained in Annexure P-6 are liable to be declared as unconstitutional. In the result, the writ petition is allowed. The following expression in the order Annexure P-6 is declared ultra vires to Article 14 of the Constitution:- “These orders will take effect from 1st January, 1973 i.e. these will apply to all those who were on the effective strength of the Army on that date and who became non-effective thereafter.” The respondents are directed to give benefit of the disability pension to the petitioner as had been given to those who have been discharged from the service after 1.1.1973.” 7. After hearing learned counsel for the parties and going through the record and the documents produced before us, it appears that in view of the decision of the Punjab and Haryana High Court in Gurnamj Singh’s case (supra), the learned Single Judge has taken a view that late Shri Ranbir Singh was entitled to disability pension even if his disability was assessed as 20% for life. As per learned Single Judge, the disability pension of late Shri Ranbir Singh was discontinued w.e.f. 20th November, 1977 and the only reason for denying family pension to the writ petitioner was that late Shri Ranbir Singh was not getting any pension at the time of his death as per Rule 212 of Pension Regulations of the Army. Learned Single Judge has since taken a view that late Shri Ranbir Singh was entitled to disability pension for life, it means that at the time of his death, he was entitled to receive disability pension and on that basis the writ petitioner is also entitled to family pension. 8. Learned Single Judge has since taken a view that late Shri Ranbir Singh was entitled to disability pension for life, it means that at the time of his death, he was entitled to receive disability pension and on that basis the writ petitioner is also entitled to family pension. 8. On this proposition, learned Single Judge has quashed the rejection of claim of the writ petitioner and has directed to pay disability pension of late Shri Ranbir Singh w.e.f. 20th November, 1977 to 2nd April 1997 and thereafter to grant the writ petitioner family pension. 9. In our considered view the decision of Gurnam Singh’s case (supra) is applicable and in view of such verdict, the verdict of learned Single Judge is legally correct and late Shri Ranbir Singh was entitled for disability pension even if his disability was assessed less than 20% for life. 10. In our considered view, learned Single Judge has rightly taken the view that late Shri Ranbir Singh was entitled to disability pension for life as at the time of his death, he was entitled to receive disability pension and on that basis, the private respondent is also entitled to family pension. 11. We find no scope to interfere in the judgment passed by the learned Single Judge and the appeal is accordingly dismissed.