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1997 Supreme(Del) 918
High Court Of Delhi
B.R.MALHOTRA - Appellant
Versus
UNION OF INDIA - Respondent
Civil 184 of 1997
Decided On : 11/12/1997
REKHA PALLI
Headnote:Service Law - Disability pension — Denial of — Petition suffered disability during employment in high altitude area of NEFA — Sent on deputation in BEL in public interest — Absorbed in BEL permanently in BEL petitioner entitled to disability pension — Disability suffered during service in Army (?)(Yes) — Writ petition under Article 226 — Pleaded discrimination — Admissibility of pension — Pension not a bounty or an award — Regulation 50 is discriminatory — Entitled to full pension — Petition allowed,
Held:
Pension is not a bounty nor an award. It is a deferred wage. Simply because the petitioner got absorbed in a Public Sector Undertaking and that too in public interest Ins deferred wage i.e. the pension earned by him could not be denied.
After his permanent absorption in the BEL, the respondent cannot deprive him nor can make him suffer his rightful due to receive disability pension which accrued to him in 1966 when while on duty he suffered the injury attributable to military service.
Even otherwise also I find no justification to deprive an officer his disability pension simply on the ground that he sought voluntary retirement. If on account of disability army can invalidate an officer and throw him out of the service then why an officer is denied disability pension when he seeks voluntary retirement. I find no reason for this discrimination. People who become disable due to military service are a class apart, they cannot be discriminated nor denied disability pension on the ground of voluntary retirement. I see no justification nor any nexus in depriving this class of officers the disability pension merely because they sought voluntary retirement. The disability does not cease on voluntary retirement. Hence, to my mind, Rule 50 of the Pension Regulation is discriminatory. It cannot stand the test being arbitrary and bad in law.
So far as petitioner is concerned his pension had to be standardised on the rank held at the time of his retirement.
( 1 ) PETITIONER joined the Indian Military Academy in 1961. He got permanent commission in the Regiment of Artillery in June,1963. In April,1966 petitioner sustained Gun Shot Wound in both his knees. This happened while petitioner was operationally deployed in hi altitude area of NEFA. The Medical Board assessed his disability at 40% and opined that it was attributable to Military Service. However, the petitioner remained in military hospital for treatment and thereafter served in various staff appointments in the Indian Army as permanent Low Medical Category Officer. On 12th May,1982 petitioner was sent on deputation to Bharat Electronics Ltd. (in short the BEL) as Manager (Personnel and Administration ). The deputation was in public interest and not on his request. While working in the BEL a question arose whether the petitioner would be entitled to disability pension in the event of his permanently getting absorbed in BEL. In response to this query by the BEL, the Army Headquarters intimated and confirmed that the officer would be entitled to disability pension even if he gets permanently absorbed in BEL. After receipt of this letter on 17th December,1983, the petitioner retired from the Army on 12th May,1985. He got absorbed in the BEL after he was given post facto sanction by the President of India vide letter dated 10th July,1985. On 13th August,1985 a Release medical Board was held at Army Hospital, Delhi Cantt. Medical report was forwarded to the CDA (Pension ). The CDA (Pension) asked the authorities to arrange for medical board as earlier the hospital had sent medical proceedings on wrong form. Accordingly on 22nd November,1985 a fresh Medical Board was held which gave the same opinion as given by the earlier Medical Board held on 13th August,1985. After receipt of the Medical Board opinion, the CDA (Pension) sanctioned pro-rata pension at the rate of Rs. 1,220. 00 per month in favour of the petitioner beside capitalised value at Rs. 96,835. 00 based on 43% commutation. Beside CDA (Pension) sanctioned residual pension at the rate of Rs. 696. 00 per month. The CDA (Pension) also sanctioned commutation of pension based on age next birthday 43 and applying factor 15. 15 for commutation.
( 2 ) PETITIONER felt aggrieved for having been denied disability pension and on account of wrong commutation and calculation of pension. He made representation to the CDA (Pension) indicating that he was entitled to pension at the rate of Rs. 1,400. 00 per month. That commutation was not acceptable as the basis of age next birthday was wrongly calculated. The first medical board was held before the petitioner attained the age of 42 years, therefore commutation ought to have been on the basis of Medical Board held on 13th August,1985. It was no fault of his if the hospital authority sent the proceedings on a wrong form. That disability pension could not be arbitrarily withheld particularly when the injury was sustained by the petitioner while on duty and the same was attributable to military service. The CDA (Pension) did not agree with his contention. It summarily rejected his request. The petitioner made yet another representation to the Ministry of Defence indicating all his grievances as pointed out above. His representation/ appeal was rejected hence being aggrieved the petitioner preferred this writ petition.
( 3 ) THE defence of the respondent is based primarily on the fact that after the petitioner voluntarily retired and got permanently absorbed in a Public Sector Undertaking like BEL, he lost his entitlement to claim disability pension. Absorption in Public Undertaking disentitled him of the disability pension. As regards capitalised value of pension age of birthday was correctly taken as 43 years. The period had been calculated by deducting the date of 29th August,1943 from the date of his absorption i. e. 14th May,1985. Moreover, the pension fixed at Rs. 1,220. 00 was in accordance with the Government of India
