Ex-Hav Ashok Kumar v. Union of India & Ors

2011. The AFT rejected the claim on the following counts:

(i) Such a claim should have been made before the AFT in the earlier round of proceedings and not having been addressed either in the OA or in the review, such a relief was barred by Order II Rule 2 of the Code of Civil Procedure, 1908[3];

(ii) The claim was barred by limitation since the appellant was discharged from service in 2012 and it was only in 2016 that the AFT was moved for such relief; and

(iii) On merits, the essential requirement for claiming ex-gratia compensation was that the applicant should have been invalidated from service on the ground of disability. In the present case, the appellant, upon completing twenty four years of service, was granted an extension of two years and it was during the extended period that he was discharged upon being downgraded to a low medical category. The AFT relied on the note appended to Rule 2 of the Pension Regulations for the Army and came to the conclusion that for the purpose of disability pension, a person who is discharged from service during the extended tenure is deemed to have been invalidated for the purpose only of the Entitlement Rules laid down in Appendix 2 to the Regulations. Aggrieved by the decision of the AFT, this appeal has been filed. Mr V S Tomar, learned counsel appearing on behalf of the appellant submitted that in Union of India vs Ram Avtar[4] a three judge Bench of this Court concluded on the issue as to whether an individual who has retired on attaining the age of superannuation or on completion of the tenure of engagement is entitled to the benefit of rounding off of disability pension upon being found to suffer from a disability which is attributable to or aggravated by military service. The Union Ministry of Defence contended that this benefit of rounding off is available only to Armed Forces personnel who are invalidated out of service and not to any other category. This submission was rejected while dismissing the appeal filed by the Union of India against the decision of the AFT. Hence, it was urged that in the present case, for all intents and purposes, the appellant, who was on an extended tenure of service, was prematurely discontinued and it must be treated an

4 Civil Appeal No 418 of 2012 decided on 10 December 2014 invalidation out of service. On this basis, it was submitted that the appellant would be entitled to ex-gratia compensation in terms of the policy circular dated 26 December 2011. Opposing the submissions which were urged on behalf of the appellant, Mr. K.M. Nataraj, learned Additional Solicitor General submitted that in essence, the argument of the appellant is that every person who is granted disability pension must necessarily get an ex-gratia payment. This, it was urged, is neither the intent nor the purpose of the Policy Circular. According to the submission, the grant of ex-gratia compensation to Army personnel who die in the course of duties while in service as stipulated in the original policy dated 4 June 2010 was subsequently extended on 26 December 2011. The essential requirement of the Policy dated 26 December 2011 is that it applies to defence service personnel who are disabled or incapacitated in the performance of their official duties and are boarded out of service on account of disability/war injury attributable to or aggravated by military service. It was urged that this condition is not fulfilled in the case of the appellant. The appellant, it was urged, was granted an extended tenure of two years of service in terms of the Army Headquarters’ Policy Instruction dated 21 September 1998 under which retention during the extended tenure is subject to certain conditions. One of those conditions is that a person who is placed in the permanent low medical category (except those who are battle casualties or wounded in action), would be discharged under the existing Rules. Hence, it was submitted that as the appellant was discharged in accordance with the conditions subject to which he was granted an extended tenure, he would not be entitled to the benefit of ex-gratia compensation. It has been urged that if the policy circular were to indicate that every person who is entitled to a disability pension would also be entitled to ex-gratia, a specific provision to that effect would have been made. Though the AFT has rejected the claim of the appellant on the ground that the claim for ex-gratia compensation was not made in the earlier round and is therefore, barred by both Order II Rule 2 of the CPC and by limitation, we propose to decide the issues in this appeal on merits. Hence, we have not gone into these technicalities. We addressed ourselves to the merits of the claim since in all fairness that is the basis on which the claim has been opposed by the learned Additional Solicitor General. At the outset, it would be necessary to appreciate the circumstances in which the appellant was granted disability pension under the Pension Regulations for the Army, 1961. Regulations 173 and 173-A have a bearing on the matter. They provide as follows: “Primary conditions for the grant of disability pension

173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in nonbattle casualty and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II. Individuals discharged on account of their being permanently in low medical category. 173-A. Individuals who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations. Note. The above provision shall also apply to individuals who are placed in a low medical category while on extended service and are discharged on that account before the completion of the period of their extension.” Regulation 173 provides for the grant of disability pension to a person who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in a non-battle casualty where the disability is assessed at 20 per cent or more. Regulation 173-A extends the provision for disability pension by a deeming fiction under which a person who is placed in a low medical category while on extended service and is consequently discharged will also stand covered by the grant of disability pension. A person, who is placed in a low medical category and is discharged, is also deemed to have been invalidated out of service for the purpose of the entitlement rules laid down in Appendix 2 to the Regulations. The deeming fiction is confined to the grant of a benefit to the extent specified in Regulation 173-A. That leads us to determine the basic issue of whether the appellant fulfilled the requirement for the grant of ex-gratia compensation. Initially by a policy decision of the Government of India in the Ministry of Defence dated 4 June 2010, ex-gratia compensation was provided to the next of kin in cases of death. This was extended on 26 December 2011 to personnel who are disabled or incapacitated on account of causes attributable to or aggravated by military service. However, para 3 of the Policy Circular dated 26 December 2011 contains the following stipulations:

In order to be entitled to the grant of ex-gratia compensation, it is necessary that the applicant must fulfill the following conditions:

(i) The applicant should have been disabled or incapacitated in the performance bona fide official duties; and

(ii) The applicant should have been boarded out of service on account of disability/war injury attributable to or aggravated by military service. If the intent of the Policy was to grant an ex-gratia compensation to every person who is granted a disability pension, it would have provided so. On 21 September 1998, the Army Headquarters provided the procedure and criteria for screening of personnel below the officer rank for extension in service. All PBOR[5] are to be screened for extension of two years by the Screening Board. Para 5 of the letter provides:

Annexure B to the Policy Instruction contains specific provisions in regard to retention during the extended tenure and includes the following stipulations: