EX-HAV ASHOK KUMAR versus UNION OF INDIA & ORS. on 24 July 2019

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[2019] 11 S.C.R. 30

SUPREME COURT REPORTS

[2019] 11 S.C.R.

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EX-HAV ASHOK KUMAR

v.

UNION OF INDIA & ORS.

(Civil Appeal No.6126 of 2019)

BJULY 24, 2019

[DR. DHANANJAYA Y CHANDRACHUDAND INDIRA BANERJEE, JJ.]

Pension Regulations for the Army, 1961 – Regulations 173,173-A – On completing original tenure of 24 years of service on 27CDec. 2010, the appellant, Havildar in the Army was grantedextension of service for two years until 26 Dec. 2012 – During thecourse of extended tenure, he suffered stroke and was re-categorisedinto the category described as SHAPE-3 (Permanent) with an 80%disability – Appellant was discharged from service – Appellant’sDclaim seeking the grant of disability pension was allowed by theArmed Forces Tribunal (AFT) – Appellant moved the AFT seekingpayment of ex-gratia compensation of Rs.9,00,000/- based on policycircular dtd. 26 Dec.2011 – Rejected – On appeal, held: On merits,the appellant was granted disability pension under the 1961Regulations– Regulation 173 provides for the grant of disabilityEpension to a person who is invalidated out of service on account ofa disability which is attributable to or aggravated by military servicein a non-battle casualty where the disability is assessed at 20% ormore –Regulation 173-A extends the provision for disability pensionby a deeming fiction under which a person who is placed in lowFmedical category while on extended service and is consequentlydischarged will also stand covered by the grant of disability pension– Deeming fiction is confined to the grant of a benefit to the extentspecified in Regulation 173-A – Initially by policy decision of theGovernment of India datd. 4 June 2010, ex-gratia compensationwas provided to the next of kin in cases of death – This was extendedGon 26 Dec. 2011 to personnel who are disabled or incapacitatedon account of causes attributable to or aggravated by militaryservice – Appellant evidently did not meet that requirement of thepolicy circular since he was not boarded out of service on accountof disability/war injury attributable to or aggravated by militaryservice – He was entitled to disability pension in view of RegulationH

173-A – Significantly, under Regulation 173-A, he is deemed tohave been invalidated from service for the purpose of the entitlementrules laid down in Appendix 2 to the Regulations – Fiction underRegulation 173-A cannot be extended to the policy document dtd.26 Dec. 2011 – If the intent of the Policy was to grant ex-gratiacompensation to every person who is granted a disability pension,it would have provided so – Claim for ex-gratia compensation couldnot have been entertained – Armed Forces – Service Law – Code ofCivil Procedure, 1908 – Or. II, r.2.

Appellant, a Havildar in the Army completed his originaltenure of 24 years of service on 27 Dec.2010. He was grantedextension of service for two years until 26 Dec. 2012. During thecourse of extended tenure, the appellant suffered a stroke andwas re-categorised into the category described as SHAPE-3(Permanent) with an 80% disability. The appellant was dischargedfrom service. In 2013, the Appellant moved the Armed ForcesTribunal (AFT) at its Principal Bench seeking the grant ofdisability pension. The claim was allowed by the AFT. However,the claim of rounding off of the disability pension was kept openon the hypothesis that the issue was pending decision beforeSupreme Court. The appellant filed Review Application beforethe AFT, which was allowed. The AFT held that as a matter offact, it was mistaken in its finding that the issue of rounding offwas pending before Supreme Court and that the appellant wasentitled to the benefit of rounding off from 80% to 100%. In 2016,the appellant moved the AFT seeking the payment of ex-gratiacompensation of Rs.9,00,000/- based on policy circular dtd. 26Dec. 2011. The claim was rejected by the AFT. Hence, the presentappeal.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1.1 Regulation 173, Pension Regulations for theArmy, 1961 provides for the grant of disability pension to a personwho is invalidated out of service on account of a disability whichis attributable to or aggravated by military service in a non-battlecasualty where the disability is assessed at 20 per cent or more.Regulation 173-A extends the provision for disability pension bya deeming fiction under which a person who is placed in a lowmedical category while on extended service and is consequently AB

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Adischarged will also stand covered by the grant of disabilitypension. A person, who is placed in a low medical category and isdischarged, is also deemed to have been invalidated out of servicefor the purpose of the entitlement rules laid down in Appendix 2to the Regulations. The deeming fiction is confined to the grantof a benefit to the extent specified in Regulation 173-A. InitiallyBby policy decision of the Government of India in the Ministry ofDefence dated 4 June 2010, ex-gratia compensation was providedto the next of kin in cases of death. This was extended on 26December 2011 to personnel who are disabled or incapacitatedon account of causes attributable to or aggravated by militaryCservice.[Paras 9-11] [37-C-F]

1.2 In order to be entitled to the grant of ex-gratiacompensation, it is necessary that the applicant must fulfill thefollowing conditions: (i) The applicant should have been disabledor incapacitated in the performance bona fide official duties; andD(ii) the applicant should have been boarded out of service onaccount of disability/war injury attributable to or aggravated bymilitary service. If the intent of the Policy was to grant an ex-gratia compensation to every person who is granted a disabilitypension, it would have provided so. On 21 September 1998, theEArmy Headquarters provided the procedure and criteria forscreening of personnel below the officer rank for extension inservice. All PBOR are to be screened for extension of two yearsby the Screening Board. Annexure B to the Policy Instructioncontains specific provisions in regard to retention during theextended tenure. [Paras 12-14] [38-B-E]F

1.3 This indicates that a person who is placed in a permanentlow medical category, except a battle casualty or a person woundedin action, and consequently placed in a permanent low medicalcategory during the extended service will be discharged underthe existing rules. Such a person who is discharged undoubtedlyGwould be entitled to the benefit of the disability pension by virtueof the deeming fiction in Regulation 173-A of the PensionRegulations. However, it does not ipso facto entitle the individualto the grant of ex-gratia compensation. The case for ex-gratiacompensation has to fall within the purview of the governingHconditions which are contained in the policy circular dated 26

December 2011. The appellant evidently did not meet thatrequirement of the policy circular since he was not boarded outof service on account of disability/war injury attributable to oraggravated by military service. He was entitled to disabilitypension in view of the provisions contained in Regulation 173-A.Significantly, under Regulation 173-A, he is deemed to have beeninvalidated from service for the purpose of the entitlement ruleslaid down in Appendix 2 to the Regulations. The fiction underRegulation 173-A cannot be extended to the policy documentdated 26 December 2011. The claim for ex-gratia compensationcould not have been entertained. [Paras 15-17] [39-B-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6126of 2019

From the Judgment and Order dated 12.10.2018 of the ArmedForces Tribunal, Principal Bench, New Delhi in O.A. No. 1232 of 2016

V. S. Tomar, Ambreesh Kumar Aggarwal, Advs. for the Appellant.

K. M. Nataraj, ASG, Amit Verma, Shailesh Madiyal, Debashis R.,Sharath Narayan Nambiar, Sudhanshu Prakash, Vinayak Sharma, ArvindKumar Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANAJAYA Y CHANDRACHUD, J.

1. Delay condoned.

2. The appellant was a Havildar in the Indian Army. He completedhis original tenure of twenty four years of service on 27 December2010. He was granted an extension of service for two years until 26December 2012. This extension was granted to the appellant inaccordance with the procedure set out in a policy letter of the ArmyHeadquarters dated 21 September 1998 which is titled:

“PROCEDURE AND CRITERIA FOR SCREENING OFPERSONNEL BELOW OFFICER RANK (PBOR)”

3. During the course of his extended tenure, the appellant suffereda stroke and was re-categorised into the category described as SHAPE-3 (Permanent) with an 80% disability. The Release Medical Board foundthat the disability was not attributable to or aggravated by military service.The appellant was discharged from service.

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A4. Seeking the grant of disability pension, the appellant moved[1]the Armed Forces Tribunal at its Principal Bench[2]. On 2 July 2014, theAFT allowed the O A by holding that the appellant was entitled to disabilitypension. However, the claim of rounding off of the disability pensionwas kept open on the hypothesis that the issue was pending decisionbefore this Court.B

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5. The appellant filed a Review Application before the AFT whichwas allowed on 30 October 2014. The AFT held that as a matter of fact,it was mistaken in its finding that the issue of rounding off was pendingbefore this Court. Hence, the AFT held that the appellant was entitledto the benefit of rounding off from 80% to 100%.C

6. The appellant moved the AFT in 2016 seeking the payment ofex-gratia compensation of Rs 9,00,000 based on a policy circular dated26 December 2011. The AFT rejected the claim on the following counts:

(i) Such a claim should have been made before the AFT in theDearlier round of proceedings and not having been addressed eitherin the OA or in the review, such a relief was barred by Order IIRule 2 of the Code of Civil Procedure, 1908[3];

(ii) The claim was barred by limitation since the appellant wasdischarged from service in 2012 and it was only in 2016 that theEAFT was moved for such relief; and

(iii) On merits, the essential requirement for claiming ex-gratiacompensation was that the applicant should have been invalidatedfrom service on the ground of disability. In the present case, theappellant, upon completing twenty four years of service, wasgranted an extension of two years and it was during the extendedFperiod that he was discharged upon being downgraded to a lowmedical category.

7. The AFT relied on the note appended to Rule 2 of the PensionRegulations for the Army and came to the conclusion that for the purposeof disability pension, a person who is discharged from service during theGextended tenure is deemed to have been invalidated for the purpose onlyof the Entitlement Rules laid down in Appendix 2 to the Regulations.Aggrieved by the decision of the AFT, this appeal has been filed.

1 O A No 321 of 20132 “AFT”H3 “CPC”

8. Mr V S Tomar, learned counsel appearing on behalf of theappellant submitted that in Union of India vs Ram Avtar[4] a three judgeBench of this Court concluded on the issue as to whether an individualwho has retired on attaining the age of superannuation or on completionof the tenure of engagement is entitled to the benefit of rounding off ofdisability pension upon being found to suffer from a disability which isattributable to or aggravated by military service. The Union Ministry ofDefence contended that this benefit of rounding off is available only toArmed Forces personnel who are invalidated out of service and not toany other category. This submission was rejected while dismissing theappeal filed by the Union of India against the decision of the AFT. Hence,it was urged that in the present case, for all intents and purposes,the appellant, who was on an extended tenure of service, wasprematurely discontinued and it must be treated an invalidation out ofservice.On this basis, it was submitted that the appellant would be entitledto ex gratia compensation in terms of the policy circular dated 26December 2011.

9. Opposing the submissions which were urged on behalf of theappellant, Mr. K.M. Nataraj, learned Additional Solicitor Generalsubmitted that in essence, the argument of the appellant is that everyperson who is granted disability pension must necessarily get an ex-gratia payment. This, it was urged, is neither the intent nor the purposeof the Policy Circular. According to the submission, the grant of ex-gratia compensation to Army personnel who die in the course of dutieswhile in service as stipulated in the original policy dated 4 June 2010 wassubsequently extended on 26 December 2011. The essential requirementof the Policy dated 26 December 2011 is that it applies to defence servicepersonnel who are disabled or incapacitated in the performance of theirofficial duties and are boarded out of service on account of disability/war injury attributable to or aggravated by military service. It was urgedthat this condition is not fulfilled in the case of the appellant. The appellant,it was urged, was granted an extended tenure of two years of service interms of the Army Headquarters’ Policy Instruction dated 21 September1998 under which retention during the extended tenure is subject to certainconditions. One of those conditions is that a person who is placed in thepermanent low medical category (except those who are battle casualtiesor wounded in action), would be discharged under the existing Rules.

4 Civil Appeal No 418 of 2012 decided on 10 December 2014

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AHence, it was submitted that as the appellant was discharged inaccordance with the conditions subject to which he was granted anextended tenure, he would not be entitled to the benefit of ex-gratiacompensation. It has been urged that if the policy circular were to indicatethat every person who is entitled to a disability pension would also beentitled to ex-gratia, a specific provision to that effect would have beenBmade.

10. Though the AFT has rejected the claim of the appellant on theground that the claim for ex-gratia compensation was not made in theearlier round and is therefore, barred by both Order II Rule 2 of theCPC and by limitation, we propose to decide the issues in this appeal onCmerits. Hence, we have not gone into these technicalities. We addressedourselves to the merits of the claim since in all fairness that is the basison which the claim has been opposed by the learned Additional SolicitorGeneral.

11. At the outset, it would be necessary to appreciate theDcircumstances in which the appellant was granted disability pension underthe Pension Regulations for the Army, 1961. Regulations 173 and 173-Ahave a bearing on the matter. They provide as follows:

“Primary conditions for the grant of disability pension E173. Unless otherwise specifically provided a disability pensionconsisting of service element and disability element may be grantedto an individual who is invalided out of service on account of adisability which is attributable to or aggravated by military servicein non-battle casualty and is assessed at 20 per cent or over.

FThe question whether a disability is attributable to or aggravatedby military service shall be determined under the rule in AppendixII.

Individuals discharged on account of their beingpermanently in low medical category.

G173-A. Individuals who are placed in a lower medical category(other than ‘E’) permanently and who are discharged because noalternative employment in their own trade/category suitable totheir low medical category could be provided or who are unwillingto accept the alternative employment or who having retained inHalternative appointment are discharged before completion of their EX-HAV ASHOK KUMAR v. UNION OF INDIA & ORS.[DR DHANANAJAYA Y CHANDRACHUD, J.]

engagement, shall be deemed to have been invalided from servicefor the purpose of the entitlement rules laid down in Appendix IIto these Regulations.

Note. The above provision shall also apply to individuals who areplaced in a low medical category while on extended service andare discharged on that account before the completion of the periodof their extension.”

12. Regulation 173 provides for the grant of disability pension to aperson who is invalidated out of service on account of a disability whichis attributable to or aggravated by military service in a non-battle casualtywhere the disability is assessed at 20 per cent or more. Regulation 173-A extends the provision for disability pension by a deeming fiction underwhich a person who is placed in a low medical category while on extendedservice and is consequently discharged will also stand covered by thegrant of disability pension. A person, who is placed in a low medicalcategory and is discharged, is also deemed to have been invalidated outof service for the purpose of the entitlement rules laid down in Appendix2 to the Regulations. The deeming fiction is confined to the grant of abenefit to the extent specified in Regulation 173-A.

13. That leads us to determine the basic issue of whether theappellant fulfilled the requirement for the grant of ex-gratia compensation.Initially by a policy decision of the Government of India in the Ministryof Defence dated 4 June 2010, ex-gratia compensation was provided tothe next of kin in cases of death. This was extended on 26 December2011 to personnel who are disabled or incapacitated on account of causesattributable to or aggravated by military service. However, para 3 of thePolicy Circular dated 26 December 2011 contains the followingstipulations:

“3. The President is pleased to decide that such Defence Servicepersonnel, who are disabled, incapacitated in the performance, oftheir bonafide official duties under various circumstances and areboarded out from service on account of disability/war injuryattributable to or aggravated by military service, shall be paid Ex-gratia lump sum compensation amounting to Rs.9 lakhs for 100%disability. For disability/war injury less than 100% but not lessthan 20%, the amount of Ex-gratia compensation shall beproportionately reduced. No Ex-gratia compensation shall bepayable for disability/war injury less than 20%. The proportionate AB

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Acompensation would be based on actual Percentage of disabilityas certified by the invaliding Medical Board, without applying -board banding provisions as contained in Para 7.2 of this Ministry’sabove mentioned letter dated 31.01.2001.”

14. In order to be entitled to the grant of ex-gratia compensation,Bit is necessary that the applicant must fulfill the following conditions:

(i) The applicant should have been disabled or incapacitated inthe performance bona fide official duties; and

(ii) The applicant should have been boarded out of service onaccount of disability/war injury attributable to or aggravatedCby military service.

15. If the intent of the Policy was to grant an ex-gratiacompensation to every person who is granted a disability pension, it wouldhave provided so.

16. On 21 September 1998, the Army Headquarters provided theDprocedure and criteria for screening of personnel below the officer rankfor extension in service. All PBOR[5] are to be screened for extension oftwo years by the Screening Board. Para 5 of the letter provides:

“5. Retention of a PBOR during extended tenure. The retentionof a PBOR during the extended tenure will be governed by theEconsiderations as per Annexure ‘B’ to this letter.”17. Annexure B to the Policy Instruction contains specificprovisions in regard to retention during the extended tenure and includesthe following stipulations:

“1. Retention of PBOR during the extended tenure will be governedFby the followings consideration:-

(i) Medical Standard The individual must continue to remainmedical category ‘AYE’ PBOR who are temporary lowmedical category at the time of Screening Board as well asduring the currency of extension of service will continue toGbe in service. If this temporary low medical category is madeinto permanent low medical category is made into permanentlow medical category except those who are battle causalitieswounded in action and consequently placed in LMC (pt)

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5 “Persons below officer’s Rank

EX-HAV ASHOK KUMAR v. UNION OF INDIA & ORS.[DR DHANANAJAYA Y CHANDRACHUD, J.]

during enhanced service, the individual will be dischargedunder the existing rules.”

18. This indicates that a person who is placed in a permanent lowmedical category, except a battle casualty or a person wounded in action,and consequently placed in a permanent low medical category duringthe extended service will be discharged under the existing rules. Such aperson who is discharged undoubtedly would be entitled to the benefit ofthe disability pension by virtue of the deeming fiction in Regulation 173-A of the Pension Regulations. However, it does not ipso facto entitle theindividual to the grant of ex-gratia compensation. The case for ex-gratiacompensation has to fall within the purview of the governing conditionswhich are contained in the policy circular dated 26 December 2011.

19. The appellant evidently did not meet that requirement of thepolicy circular since he was not boarded out of service on account ofdisability/war injury attributable to or aggravated by military service. Hewas entitled to disability pension in view of the provisions contained inRegulation 173-A. Significantly, under Regulation 173-A, he is deemedto have been invalidated from service for the purpose of the entitlementrules laid down in Appendix 2 to the Regulations. The fiction underRegulation 173-A cannot be extended to the policy document dated 26December 2011.

20. Consequently, we are of the view, for the reasons we haveindicated, that the claim for ex-gratia compensation could not have beenentertained.

21. The appeal is accordingly dismissed.

22. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeal dismissed.

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