2007 Supreme(SC) 114

2007(2) Supreme 905
SUPREME COURT OF INDIA
(From Delhi High Court)
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
P.K. Kapur—Appellant
versus
Union of India & Ors.—Respondents
Civil Appeal No. 4356 of 2006
Decided on 1-2-2007
Counsel for the Parties :
For the Appellant : P.K. Kapur, Appellant-In-Person.
For the Respondents : R. Mohan, A.S.G., R. Nedumaran, R.C. Kathia and Mrs. Anil Katiyar, Advocates.

IMPORTANT POINT
In matters of pay fixation it is the pay commission which is entitled to take into account various parameters depending upon the nature of posts, the pay scales attached to those posts, the duties attached to those posts, the qualifications attached thereto, the manner of calculating the retirement benefits etc.

Headnote:(i) SERVICE LAW—Pension—Retired Lieutenant Colonel in Indian Army—‘Qualifying service’—Computation of pension by adding weightage of number of years to the prescribed retirement age—Under Fourth Pay Commission the Government followed Integrated Pay Scale System—Under Fifth Pay Commission not only the pay scales stood revised but a separate pay scale was prescribed for Lieutenant Colonel—In 1962, appellant was commissioned as an Officer in Indian Army—In 1965 while fighting against Pakistani troops appellant got a shell injury in his left shoulder—However, he was retained in service, granted permanent commission and allowed to work till 30-11-89—He was released on superannuation on completion of 51 years of age after putting in qualifying service of 26 years —Before his retirement Medical Board assessed appellant’s war injury disability at 30%, permanent for life—During the period 30-11-1989 to 25-10-99 appellant was given 8 years weightage to be added to his qualifying service in order to compute his service pension—He was entitled to weightage of 5 but since his pension fell below that payable to a Major because of integrated pay scale, he was given an additional weightage of 3—However, after Fifth Pay Commission Report appellant was informed that calculation of pension will be done on basis of last rank held by him—With revision in pay scale appellant was given original weightage of 5 years as now pension payable to Lieutenant Colonel became more than that payable to a Major—According to appellant, policy of fixing different weightages for different Ranks was arbitrary and violative of Article 14 of the Constitution—Whether appellant’s claim of weightage of 8 to be added to the actual service rendered by him can be allowed—(No)—Whether there is any violation of Article 14 of the Constitution—(No)—Constitution of India—Article 14.

       Held : The very definition of the word “qualifying service” in the O.M. dated 30.10.87 indicates that the weightage (in years) is given appropriate to the last Rank held. In other words, weightage has a nexus with the Ranks. Further, the definition of the word “qualifying service” also indicates that there is a ceiling/outer limit placed on the amount of pension payable which will not exceed the total qualifying service of 33 years. Applying this O.M. to the facts of the present case we find that appellant was all throughout entitled to weightage of 5 but at the relevant time when he retired in 1989 there existed what is called as integrated pay scale. The consequence of the integrated pay scale was that with 5 years weightage the appellant was entitled to pension the quantum whereof was less than that of a Major. To protect his pension, the appellant was given a weightage of 3 additional points (in years). At this stage, it may be clarified that the appellant retired on 30.11.89 after completing actual qualifying service of 26 years. With the weightage of 8, the total qualifying service became 34 and, therefore, in effect he was given a weightage of 7 because, as stated above, under the O.M. dated 30.10.87 the qualifying service could not got beyond the ceiling of 33 years. However, with the coming into force the Fifth Pay Commission, Government of India had to refix the pension because under the Report of the Fifth Pay Commission there was a revision of pay scale introduced with effect from 1.1.96 for the Rank of Lieutenant Colonel and other Ranks. Further, after the Fifth Pay Commission the integrated pay Scale system was abolished and a separate pay scale was provided for Lieutenant Colonel (TS) with 5 years weightage which was there even under the Fourth Pay Commission. The result was that the appellant’s pay scale was revised under the Fifth Pay Commission which was the basis for qualifying pension. Consequently, the pension of Lieutenant Colonel (TS) even with the weightage of 5 years became more than the pension admissible to Major with the weightage of 8 years. In this connection, a chart has been submitted by the Union of India which indicates Rs.6400/- per month to be pension for a Major with 33 years service including 8 years weightage whereas pension admissible to Lieutenant Colonel (TS) with 31 years of qualifying service including 5 years weightage to be Rs.6905/- per month. Therefore, after the Fifth Pay Commission, on account of increase in the pay scales, pension admissible to Lieutenant Colonel (TS) with 31 years of service including 5 years weightage is more than the pension admissible to a Major with 33 years service including 8 years weightage. Therefore, there is no loss to the appellant as alleged. Appellant claims 8 years weightage even after Fifth Pay Commission under which his salary has been revised. He claims weightage of 8 to be added to the actual service rendered by him so that his qualifying service becomes 33 and he claims accordingly a pension at the rate of Rs.7350/- per month whereas he is entitled to Rs.6905/- per month. Therefore, there is no loss suffered by the appellant as alleged. Appellant is getting pension which is more than that of the Major, therefore, he is not entitled to 8 years weightage. However, he has been given a weightage of 5 years. In other words, the protected weightage of 3 points is removed because after Fifth Pay Commission he earns pension more than that of the Major which was not there during the period 1989 to 1999. Secondly, it is well settled in law that Article 14 permits class legislation and not classification based on intelligible differentia which distinguishes those that are grouped together from others and that differentia must have a rational relation to the objects sought to be achieved by the Act. In matters of pay fixation it is the pay commission which is entitled to take into account various parameters depending upon the nature of posts, the pay scales attached to those posts, the duties attached to those posts, the qualifications attached thereto, the manner of calculating the retirement benefits etc. Both under Fourth Pay Commission and Fifth Pay Commission the weightage of 5 is retained. Appellant was always entitled to weightage of 5. He was given the weightage of 3 additional points only to protect his pension. This protection was given because his pension was falling below the pension admissible to a Major. Under Fourth Pay Commission the Government followed integrated pay-scale system whereas under Fifth Pay Commission not only the pay scales stood revised but a separate pay scale was prescribed for Lieutenant Colonel (TS). The pay scale so prescribed was the basis for computation of the pension. Be that as it may, even assuming for the sake of the argument that Article 14 was applicable, the O.M. dated 30.10.87 clearly shows that the weightage had nexus with the last Rank and the period of 33 years qualifying service was an outer limit of qualifying service for calculating pension. Further, the weightage of 5 is given under the said O.M. to Lieutenant Colonel (TS) in the Army, Commander (TS) in the Navy and Wing Commander (TS) in the Air Force. Therefore, weightage (in years) was given under the said O.M. to the equivalent Ranks in Army, Navy and Air Force. Therefore, there is no violation of Article 14 of the Constitution.(Para 10)

       (ii) SERVICE LAW—Armed Forces —Percentage of War Injury Disability for Armed Forces Officers—Claim of ‘enhancement of percentage of disability’ vide O.M. dated 3-2-2000 from 30% to 50%—Maintainability—Appellant retired as Lieutenant Colonel on 30-11-89—Government of India had vide O.M. dated 3-2-2000 enhanced percentage of disability for Armed Forces including junior officers in service on or after 1-1-96—Fixation of cut off date of 1-1-96 challenged as arbitrary, irrational and violative of Article 14 of the Constitution—Appellant having completed his normal tenure of service—Benefit of enhancement is given to those officers who stood invalidated out of service on account of disability or war injury—Appellant not falling in the category of invalidment held not entitled to benefit of enhancement of percentage of disability—Constitution of India—Article 14.

       Held : Under O.M. dated 3.2.2000 the benefit of enhancement of percentage of disability, and not the rates, is given to officers who were in service on or after 1.1.96. This enhancement is from 30% to 50%. Appellant claims this enhancement from 30% to 50% in his case also. However, O.M. dated 3.2.2000 states that the said enhancement shall be applicable only to those officers who stood invalided out of service. This provision is not applicable to the appellant who retired on superannuation prior to 1.1.96. Appellant was not invalided out of service. He completed his normal tenure of service. The benefit of enhancement is given to those officers who stood invalided out of service because their tenure of service got cut due to invalidment on account of disability or war injury. Therefore, the appellant does not fall in the category of invalidment. The Government is always entitled to classify officers who stood retired vis-a-vis the officers whose tenure of service got reduced due to invalidment. These are two distinct and separate categories. Hence, there is no violation of Article 14 of the Constitution.(Para 12)

       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. (Para 14)

       (iii) Words and Phrases—Expression ‘qualifying service’—Meaning—Service Law—Pension—Retired Army Officer.(Para 10)

       (iv) Constitution of India—Article 14—Pay fixation—Cut off date—Validity—Article 14 permits class legislation and not classification based on intelligible differentia which distinguishes those that are grouped together from others—That differentia must have a rational relation to the objects sought to be achieved by the Act—Service Law.(Para 10)