REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5591 OF 2006

K.J.S. Buttar

..

Appellant

-versus-

Union of India and Anr.

..

Respondents

J U D G M E N T

Markandey Katju, J.

1.

This appeal has been filed against the judgment and order dated

13.9.2004 in C.W.P. No.20447 of 2002 of the High Court of Punjab

and Haryana at Chandigarh.

2.

Heard learned counsel for the parties and perused the record.

3.

The appellant is an ex-captain in the Indian Army, who was

commissioned on 12.1.1969. During the course of his service, the

appellant suffered serious injuries of a permanent nature and was

invalided out of service. The Release Medical Board held on 3.1.1979

viewed his injury ‘gun shot wound left elbow’ as attributable to

military service and assessed the degree of disability at 50% and the

appellant was released from service in Low Medical Category on

10.4.1979. Accordingly, the appellant was granted Disability Pension

w.e.f. 26.7.1979.

4.

The appellant filed a writ petition in the High Court claiming

following benefits under Circular and Notification issued by the

Ministry of Defence, Union of India from time to time :

“a)

War Injury Pension w.e.f. 1.1.1996 in terms of

Ministry of Defence letter dated 31.1.2001;

b)

Treating the disability at 75% instead of 50%

w.e.f. 1.1.1996 as per Ministry of Defence

letter dated 31.1.2001;

c)

Grant of service element for full 10 years of

service instead of 2 years; and

d)

Revision of the rates of the disability pension

w.e.f. 1.1.1996 in terms of the letter dated

31.1.2001.

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It is pertinent to state that the Ministry of Defence letter dated

31.1.2001 had revised the rates pursuant to recommendations of Fifth

Pay Commission.

5.

The appellant was denied the above benefits by the respondent on

the basis that he retired before 1.1.1996, and hence in terms of the

notification dated 31.1.2001 he could not get the said benefits as they

were granted to officers who retired on or after 1.1.1996. The appellant

contended that that in view of the instruction issued on 31.1.2001 and

subsequent instructions the said benefits are available to those who

were invalided even prior to 1.1.1996. In addition, the appellant also

prays that his disability should be treated as 75% instead of 50% in

terms of clause 7.2 of the subsequent instructions.

6.

The appellant had been granted the short service commission in

the Indian Army on 21.1.1969. According to him while participating in

the exercise conducted with live ammunition, he suffered gun shot on

his left elbow and as a result the appellant was relieved from Indian

Army with 50% disability on 10.4.1979.

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7.

A counter affidavit was filed by the respondent in the writ

petition in which it was alleged that instruction dated 1.1.1996 is not

applicable to the appellant. It was also contended that as regards the

instruction dated 31.1.2001 it is not applicable to the appellant as he

had not retired but was invalided out. With regard to the instruction

dated 16.5.2001 it was alleged that the said instruction is applicable

only with respect to paragraph 7.1(ii)(a) of the instruction dated

31.1.2001, and it has no application to the appellant.

8.

The High Court in the impugned judgment held that paragraph

7.2 of the instructions dated 31.1.2001 is not applicable to the

appellant. With respect we cannot agree.

9.

As regards the claim of the appellant for pension for his full 10

years service as a short service commission officer, we have already

held in Union of India & Anr. vs. C.S. Sidhu 2010(4) SCC 563 that

this claim is justified. Hence his entire service in the army has to be

taken into consideration for grant of Disability Pension and he must be

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given arrears with interest @ 8% per annum as was granted in C.S.

Sidhu’s case.

10.

The stand of th