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Kjs Buttar, Captain No. Ss-21515-N Petitioner v. Union Of India And Another S
Factual and Procedural Background
The petitioner was granted Short Service Commission in the Army on 12.1.1969. While participating in an exercise conducted with live ammunition he suffered a gun shot to his left elbow on 11.3.1971. He was released from service with 50% disability on 10.04.1979 and was granted disability pension on 26.7.1979. Service element was originally granted only for a period of two years (from date of commission to date of injury). The disability pension was enhanced in 1981, 1983, 1985, 1993 and 1999.
On 31.3.2001 instructions issued after the 5th Pay Commission classified injuries by manner; injury during training exercises fell in category “E”, which the instructions stated entitled a person to war injury pension and directed that disability between 50% and 75% be reckoned as 75% for the disability element. Instructions of 31.1.2001 were made applicable to invalidated personnel even prior to 1.1.1996 (noted on 16.5.2001).
On 09.09.2001 the petitioner applied for grant of War Injury pension at 75% and for service element counting 10 years’ service. The petitioner filed CWP No. 20447 of 2002, disposed of on 13.3.2004: the prayer for War Injury Pension was rejected, the disability element was granted at 75% in view of the instructions, and the prayer for counting the complete commissioned service for the service element was rejected. The petitioner’s Special Leave Petition challenging denial of War Injury Pension is pending before the Supreme Court. In the present writ petition the petitioner seeks grant of the service element for his complete commissioned service.
Order date: 09.10.2009. Judge: PERMOD KOHLI, BLS JUDGE.
Legal Issues Presented
- Whether the petitioner is entitled to have the entire period of commissioned service counted as qualifying service for the service element of pension.
- Whether the directions in Ex-Capt. Surinder Pal Singh Gondara (CWP No. 5429 of 1986) apply to the petitioner’s case and, if so, the consequent relief and computation of arrears.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ex-Capt. Surinder Pal Singh Gondara v. Union of India and another, (CWP No. 5429 of 1986) on 15.3.1988 | The respondents were directed to count the entire period of commissioned service rendered by the petitioner from 2.3.1968 to 31.8.1975 as the qualifying service and to calculate his pension in accordance with the pension scale of 1.1.1973 and give him all other benefits to which he was entitled. | The court held that the observations/directions in Gondara are fully applicable to the present case and granted the petitioner the relief indicated by that precedent, subject to an arrears limitation. |
Court's Reasoning and Analysis
The court accepted the concession of learned counsel that the controversy is squarely covered by the Gondara judgment. It recited the Gondara directions requiring respondents to count the entire commissioned service as qualifying service and to calculate pension per the 1.1.1973 scale. Finding the Gondara observations applicable to the facts of the present case, the court concluded the petitioner is entitled to the same relief. The court limited monetary arrears to three years prior to the filing of the writ petition.
Holding and Implications
DISPOSED OF
Holding: The petitioner is entitled to have his entire period of commissioned service counted as qualifying service and to pension calculated in accordance with the Gondara directions; arrears are restricted to three years prior to the filing of the writ petition.
Implications: The direct effect is an order directing respondents to apply the Gondara relief to the petitioner and to finalize the matter (subject to the arrears limitation). The opinion applies an existing precedent and does not purport to set a new legal principle.
PERMOD KOHLI, J.
The petitioner granted Short Service Commission in the Army on 12.1.1969 While participating in exercise conducted with live ammunition, he suffered gun short on his left elbow on 11.3.1971 He was released from service with 50 per cent disability on 10.04.1979 On 26.7.1979 the petitioner was granted disability pension. Service element granted only for a period of 2 years i.e from date of Commission to the date of injury. Disability pension granted to the petitioner was enhanced in 1981, 1983, 1985, 1993 and 1999. On 31.3.2001 instructions were issued after 5th Pay Commission providing different categories of disability suffered having regard to the manner of injury suffered. Injury suffered on account of training exercise came in category “E” This category entitled a person to war injury pension in terms of the same instructions and that disability between 50 per cent and 75 per cent was directed to be reckoned for disability element with 75 per cent disability. On 16.5.2001 instructions issued by the government dated 31.1.2001 made applicable to all invalidated even prior to 1.1.1996 On 09.09.2001 the petitioner applied for grant of War Injury pension and @ 75% disability and also for service element for 10 years service rendered. Petitioner filed CWP No. 20447 of 2002 which was disposed of on 13.3.2004 wherein the prayer for War Injury Pension was rejected. However, request of the petitioner for disability element of 75 per cent was granted keeping in view the instructions aforesaid. The prayer for award of service element counting the complete commission service was rejected. The petitioner filed SLP impugning the part of the judgment whereby he was denied War Injury Pension which is pending before the Supreme Court. In the present writ petition the petitioner is claiming grant of service element for complete commissioned service.
It is agreed to by the learned counsel for the parties that the controversy involved in the present case is squarely covered by a judgment of this Court rendered in Ex-Capt. Surinder Pal Singh Gondara v. Union of India and another, (CWP No. 5429 of 1986) on 15.3.1988, wherein the following directions/observations have been made:-
“Consequently, this writ petition is succeeds. The respondents are directed to count the entire period of commissioned service rendered by the petitioner from 2.3.1968 to 31.8.1975 as the qualifying service and calculate his pension in accordance with pension scale of 1.1.1973 and give him all other benefits which he is entitled to under the law. It is further directed that the matter be finalized within three months of this order. No costs.”
The above observations/directions are fully applicable in the facts and circumstances of the present case. The petitioner is entitled to the relief indicated above. However, arrears are restricted to three years prior to the filing of the writ petition.
Disposed of.
09.10.2009 (PERMOD KOHLI) BLS JUDGE
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