Prem Kumar v. Union of India & Ors.

1. These petitions have been filed by the petitioners, challenging paragraph 3(V) (wrongly mentioned as paragraph 2(V) in the prayer clause) of the Office Memorandum (‘OM’) No. 45/22/97-P&PW(C) dated 03.02.2000 issued by Department of Pension and Pensioners’ Welfare, to the limited extent that it caps the aggregate of the service and disability element of pension at the pay last drawn, for 100% disability.

2. As both the petitions raise similar grievances and challenge in law, to appreciate the same, we have taken the facts from W.P.(C) 2978/2022.

3. The learned counsel for the petitioners, referring to the OM NO. 45/22/97-P&PW(C) dated 03.02.2000, submits that paragraph 5 of the said OM, recognizing that persons suffering from different percentages of disability cannot be equated for grant of the disability element of pension, provides for a graded percentage of disability for the computation of the disability element of pension. He submits that, however, the effect of the Impugned Paragraph 3(V)(1) of the Impugned OM is that a person having a disability of even 1% will get the aggregate of service and disability elements of pension equivalent to his pay last drawn, and so would a person who has 100% disability, due to the ceiling of the aggregate of the service and disability element of pension at the pay last drawn, for 100% disability. He submits that this capping of the aggregate of the service and disability elements is, therefore, violative of Article 14 of the Constitution of India, and cannot be sustained.

4. He submits that realizing the above anomaly, in the OM NO. 1/4/2016-P&PW(F) dated 12.10.2017, issued in the implementation of the recommendations of the 7th Central Pay Commission (‘CPC’), it has been provided that the personnel will get disability pension comprising of the service element equal to 50% of the notional pay as on 01.01.2016 and disability element equal to the same notional pay as on 01.01.2016 for 100% disability, and that for lower percentage of the disability, the disability element shall be proportionately lower subject to the provisions of Rule 8 of the Central Civil Services (Extraordinary Pension) Rules. Therefore, the ceiling on the aggregate of service element and disability element of pension has been done away with.

5. He submits that even prior thereto, as far as the Higher Administrative Grade (HAG) Officers are concerned, the said ceiling had been withdrawn by the OM No.45/3/2008-P&PW(F) dated 30.09.2010.

6. He submits that the effect of the Impugned Paragraph is a reduction in the pension of the petitioner, as reflected in the Pension Payment Orders dated 03.10.2019 and 25.10.2019, wherein the petitioner’s pension has been reduced by relying upon the above Clause that provides for the ceiling of the aggregate amount of the service and disability elements of pension.

7. On the other hand, the learned counsel for the respondents submits that the petitioner, though had been invalidated out of service in February, 2003, did not challenge the above condition till the filing of the present petition in the year 2022.

8. She further submits that the Impugned OM dated 03.02.2000 has been issued in acceptance of the recommendations of the 5th CPC, which consisted of experts in the field, who have given the recommendations after due deliberation and after public hearing. In this regard, she places reliance upon the judgment of the Supreme Court in Secretary, Finance Department & Ors. v. West Bengal Registration Service Association and Ors., 1993 Supp (1) SCC 153, to submit that the Courts generally leave it to the expert bodies like Pay Commission, etc. to determine the pay scale and other benefits as the Courts are not the expert bodies in this field. She submits that, therefore, in the present case, there is no reason to interfere with the OM dated 03.02.2000.

9. We have considered the submissions made by the learned counsels for the parties.

10. The OM dated 03.02.2000 has been issued by the Government of India to implement the recommendations of the 5th CPC. It broadly categorises the cases for determining the compensation payable for death or disability under five distinct categories, that is, from Category ‘A’ to Category ‘E’. Category ‘E’ reads as under:- “Category ‘E’ Death or disability arising as a result of (a) attack by or during action against extremists, anti-social element etc., and (b) enemy action in international war or border skirmishes and warlike situations, including cases which are attributable to (i) extremists acts, exploding mines etc. while on way to an operational area: (ii) kidnapping by extremists; and (iii) battle inoculation as part of training exercises with live ammunition.”

11. Clause 3(ii)(V) gives the Disability Pension for personnel covered under Category ‘E’ as under:- “3. The recommendations of the Commission have been under consideration of the Government for some time. Orders have already been issued regarding ex-gratia payment in case of death in service vide this Dept.'s OM No.45/55/97-P&PW(C) dated 11.09.98. In respect of disability pension/family pension, the President is now pleased to decide as under:xxx

(ii) In cases covered under categories (B),

V. Disability Pension - For cases covered under category ‘E’

(1) Disability pension, comprising a service element equal to the retiring pension and gratuity to which the employee would have been entitled to on the basis of his pay on the date of invalidation but counting service upto the date on which he would have retired in normal course and disability element equal in amount to the pay last drawn subject to the condition that the aggregate of the service and disability elements shall not exceed the pay last drawn, for 100% disability. (2) For lower percentage of disability, the disability element shall be proportionately lower as at present.”

12. A reading of the above would show that the Disability Pension for a personnel falling in Category ‘E’ shall be comprising of a service element equal to the retiring pension and gratuity to which the employee would have been entitled to on the basis of his pay on the date of invalidation but counting service upto the date on which he would have retired in normal course, and a disability element equal in amount to the pay last drawn, however, it is made subject to the condition that the aggregate of the service and disability elements shall not exceed the pay last drawn, for 100% disability.