P.K.KAPURversusUNION OF INDIA AND ORS

A                                P.K.KAPUR
                                      v.
                           UNION OF INDIA AND ORS

                               FEBRUARY I, 2007

B                [DR. ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]


         Service Law:

         Pension-Fixation of pension on superannuation of Commissioned
C Officer in Army injured in war-0.M. No. l(S)/87/D dated 30.10.1987 and
    O.M. dated 3.2.2000-0fficer superannuated on 30.11.1989-lnjury disability
    assessed at 30'!/,,--Allowed weightage of 5+ 3 years-Refrxation of pension
    after Report of Fifth Pay Commission giving weightage of 5 years-Officer
    claiming weightage of 8 years and "enhancement ofpercentage of disability"
D   as also claiming to be treated as invalided from service for the purpose of
    grant of disability pension in terms of O.M. dated 3.2.2000-Held, officer was
    entitled to weightage of 5, but as a consequence of integrated pay scale with
    5 years weightage he was entitled to less pension than that of a Major,
    therefore, to protect his pension, he was given additional 3 years-Pursuant


                                                                                         -
    to Report of Fifth Pay Commission, since he was getting pension more than
E   that of a Major he was rightly given weightage of 5 years-Weightage has
    nexus with the last Rank, therefore, is not violative of Article 14 of the
    Constitution-In terms of O.M. dated 3.2.2000 enhancement of percentage of
    disability is applicable to those who were in service on or after 1.1.1996-
    Provision not applicable to the Officer who retired on superannuation prior
F   to 1.1.1996-Besides, Officer was not invalided out of service-Therefore, he     .l
    cannot be treated as invalided for purposes of grant of disability pension-
    Constitution of India-Article 14-Fixing of cut off date.

           Appellant, a Commissioned Officer in the Army, got injured in the 1965
    war. After the war he was retained in service. He superannuated on
G   30.l I.1989 on completion of 51 years of age after putting in 26 years of
    service. Before his retirement he was subjected to examination by the Medical
    Board which assessed his war injury disability at 30% permanent for life.
    His pension was fixed allowing him weightage of 5+3 years so that his pension
    remained more than that of a Major. He got the benefit of 8 years weightage

H                                       128
                                         P.K. KAPUR v. U.0.1.                           129
    _,._    forten years till 25.10.1999. Pursuant to the Fifth Pay Commission Report          A
            his pension was revised giving him weightage of 5 years and the protected
            weightage of 3 years (8-5) stood withdrawn. This was challenged by the
            appellant in a writ petition before the High Court. He also claimed
            enhancement of percentage of disability from 30% to 50% under Government
            of India, Ministry of Personnel Circular No. 45/22/97-P&PW (C) dated               B
            3.2.2000. The High Court dismissed the writ petition.

                  It was contended by the appellant, who appeared in person, that he had
    "t·     been given a weightage of8 years from 30.11.1989 to 25.10.1999 and there
            was no reason for reducing the weightage from 8 to 5 after the report of the
            Fifth Pay Commission, and in any case the policy offixing different weightages     C
            for different ranks was arbitrary and violative of Article 14 of the
           Constitution; that "enhancement of percentage of disability" by Government
           oflndia O.M. dated 3.2.2000 for Armed Officers in service on or after 1.1.1996
           and denying the said benefit to pre 1.1. 1996 retirees by fixing the cut-off date
           of 1.1.1996 was arbitrary, irrational and violative of Article 14 of the
           Constitution. The appellant also claimed war injury pension at the current          D
           rate. It was submitted that he was released in a lower medical category from
           service on 30. 11.1989 than what he was at the time of recruitment and,
~          therefore, he should be treated as invalided from service with effect from the
           date of release for the purpose of grant of disability pension.

                 Dismi~sing the appeal, the Court
                                                                                               E

                  HELD: 1.1. The very definition of the words "qualifying service" in the
           O.M. dated 30.10.87 indicates that the weightage (in years) is given appropriate
           to the last Rank held. Thus, weightage has a nexus with the Ranks. Applying
           this O.M. to the facts of the present case the appellant was all throughout         F
           entitled to weightage of 5 but at the relevant time when he retired in 1989
           there existed the integrated pay scale, and in the said pay scale with 5 years
           weightage the appellant was entitled to pension the quantum whereof was less
           than that of a Major. To protect his pension, he was given a weightage of 3
           additional points (in years). However, with the coming into force of the Fifth
           Pay Commission, Government of India had to refix the pension with effect            G
           from 1.1.96. Further, after the Fifth Pay Commission the integrated pay Scale
           system was abolished and a separate pay scale was provided for Lieutenant
           Colonel (TS) with 5 years weightage which was there even under the Fourth
           Pay Commission. The result was that the appellant's pay scale was revised
           under the Fifth Pay Commission which was the basis for qualifying pension.          H
    130                   SUPREME COURT REPORTS                     [2007] 2 S.C.R.

A   He has been given a weightage of 5 years. Thus, the protected weightage of
    3 points is removed because after Fifth Pay Commission he earns pension
    more than that of the Major which was not there during the period 1989 to
    I 999. !Para 71 [134-C-H; 135-A-FI

          1.2. It is well settled in law that Article 14 of the Constitution permits
B class legislation and not classification based on intelligible differentia which
    distinguishes those that are grouped together from others and that differentia
    must have a rational relation to the objects sought to be achieved by the Act.
    In the instant case, the O.M. dated 30. I 0.87 clearly shows that the weightage
    had nexus with the last Rank and the period of 33 years qualifying service
C   was an outer limit of qualifying service for calculating pension. Further, the
    weightage of 5 is given under the said O.M. to Lieutenant Colonel (fS) in the
    Army, Commander (TS) in the Navy and Wing Commander (TS) in the Air
    Force. Therefore, weightage (in years) was given under the said O.M. to the
    equivalent Ranks in Army, Navy and Air Force. Therefore, there is no
    violation of Article 14 of the Constitution. IPara 7) 1135-F-C; 136-A-C)
D
          Union of India v. P.N. Menon and Ors., [I 9941 4 SCC 68, relied on.

          B.S. Nak.ara v. Union of India, AIR (1983) SC 130, cited.

          2. As regards appellant's claim for "enhancement of percentage of
E   disability", since, he retired on 30. I 1.89 this enhancement of percentage of
    disability was not admissible in his case. He was entitled to war disability
    pension. He has been paid arrears on that basis on and from 30.11.89. O.M.
    dated 3.2.2000 states that the said enhancement shall be applicable only to
    those officers who stood invalided out of service. This provision is not
    applicable to the appellant who retired on superannuation prior to I.I.1996.       ;.
F   Appellant was not invalided out of service. He completed his normal tenure
    of service. Therefore, he does not fall in the category of invalidment. The
    Government is always entitled to classify officers who stood retired vis-a-vis
    the officers whose tenure of service got reduced due to invalidment. These
    are two distinct and separate categories. Hence, there is no violation of
G   Article 14 of the Constitution. (Para Nos. 8-9) (136-D-G; 137-A-C)

          3. With regard to the claim of the appellant that he should be treated
    as invalided from service with effect from the date of release for the purpose
    of grant of disability pension, suffice it to say that he retired on 30.11.89 on
    superannuation. The concept of invalidment applies to cases in which the
H   tenure of service is cut short due to invalidment on account of war injury or
                          P.K. KAPUR v. U.0.1. [KAPADIA, J.]                    131

•   disability. The concept of invalidment does not apply to cases where an officer    A ,
    completes his tenure of service and retires on attaining the age of
    superannuation. [Para Nos. 10-11] [137-D, F-G[

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4356 of2006.

          From the Final Judgments and Orders dated 8-11-2004 and 15.12.2004 of        B
    the High Court of Delhi at New Delhi in C.W.P. No. 268/200 I and C.M. No.
    438/2004 respectively.

          P.K. Kapur Appellant-In-Person.

         R.Mohan, A.S.G., R. Nedumaran, R.C. Kathia and Anil Katiyar for the           C
    Respondents.

          The Judgment of the Court was delivered by

          KAPADIA, J. I. By filing writ petition in the Delhi High Court, petitioner
    (appellant herein), a retired Lieutenant Colonel (Time Scale), sought weightage    D
    of 8 years to be added to the actual qualifying service as also enhancement
    of percentage of disability, in short, he asked for refixation of the pension.

          2. The facts giving rise to the writ petition are as follows.

          In 1962 appellant was commissioned as an officer in Indian Army. This        E
    was during National Emergency created by Chinese invasion. He was an
    officer in the Sikh Light Infantry.

          In 1965 while fighting in Jammu and Kashmir sector against Pakistani
    troops appellant got a shell injury in his left shoulder. After war, he was
    retained in service, granted permanent commission and. allowed to work till        F
    30.11.89 when he was released on superannuation on completion of 51 years
    of age after putting in qualifying service of 26 years. Before his retirement
    appellant was subjected to examination by the Medical Board which assessed
    the appellant's war injury disability at 30%, permanent for life.

          During the period 30.11.89 to 25. I 0.99 the appellant was given 8 years     G
    weightage (in years) to be added to his qualifying service in order to compute
    his service pension. He was also notified for war disability pension for which
    he was paid arrears with effect from 30.11.89.

         3. At this stage, it may be noted that the Report of the Fourth Pay           H
    132                    SUPREME COURT REPORTS                    [2007] 2 S.C.R.

A Commission came on 30.10.87. As stated above, appellant retired on 30.11.89.         •
    When he retired, in l 989, he was allowed weightage of 5+3 (in years) in order
    to protect his pension. He was entitled to weightage of 5 but since his
    pension fell below that payable to a Major he was given an additional
    weightage of 3. At the relevant time, till Fifth Pay Commission Report, there
B   was integrated pay scale in existence. Appellant was entitled to 5 years
    weightage under the Fourth Pay Commission, however, because of integrated
    pay scale his pay became less than a Major in the Indian Army with 5 years
    weightage admissible to Lieutenant Colonel in the Time Scale (TS). Therefore,
    in order to protect his pay he was given an additional weightage of 3 years
    so that his pension remained more than that of a Major. Appellant enjoyed
C   the benefit of 8 years weightage for 10 years between the date of his retirement
    on 30.11.89 and 25.10.99. However, after Fifth Pay Commission Report appellant
    was informed that calculation of pension will be done on the basis of last rank
    held by him and on the basis of revised pay scale introduced under Fifth Pay
    Commission Report with effect from 1.1.96. With the revision in pay scale
     appellant was given the original weightage of 5 years because after the Report
D    of the Fifth Pay Commission the salary structure was so revised under which
    th:: pension payable to a Lieutenant Colonel (TS) became more than the
     pension payable to a Major and consequently the protected weightage of 3
     (8-5) stood withdrawn. This has been challenged by the appellant.

E          4. As stated above in the writ petition, the appellant also claimed
    enhancement of percentage of disability. According to the appellant, under
    Government of India, Ministry of Personnel, vide Circular No.45122/97-P&PW(C)
    dated 3.2.2000, the percentage of disability stood enhanced from 30% to 50%
    in case of junior officers in the armed forces who were in service on 1.1.96.
    Appellant contended that he was also entitled to such enhancement and that
F   Government of India was not entitled to discriminate in this regard junior
    officers who retired before 1.1.96 and those who are in service on or after
    1.1.96.

         5. Both these challenges failed as can be seen from the impugned
    judgments of the High Court in W.P. (C) No.268/2001 dated 8.11.2004 and ·
G   Review Petition No.438/2004 dated 15.12.2004. Hence, this civil appeal.

        6. Appellant appeared in-person. On the first point he submitted that
  he was given a weightage of 8 for 10 years between 1989 and 1999 and there
  was no reason for reducing the weightage from 8 to 5 after the Report of the
H Fifth Pay Commission. He submitted that on account of the above reduction
                       P.K. KAPUR v. U.0.1. [KAPADIA, .I.]                 133
                                                                                 A
   in weightage he has suffered a monetary loss of Rs.445 per month. He
   submitted that the policy of the Government giving weightage, to be added
   to the actual qualifying service rendered for computation of service pension,
   was arbitrary and discriminatory having no nexus with the object sought to
   be achieved, namely, equal opportunity of earning full pension. He submitted
   that other Ranks except that of Lieutenant Colonel (TS) are given the benefit B
  of 58 years for computation of pension by adding the weightage of number
  of years to the prescribed retirement age and thus he was not given equal
  opportunity of earning full pension in relation to other Ranks. This, according
  to the appellant, was discriminatory. The appellant further submitted that
  there was no reason for Government of India to prescribe different weightage C
  for different Ranks. He submitted that fixation of 5 years weightage in his
  case for computation of service pension was against the basic object having
  no rational relation with the object of enabling him to get 33 years of qualifying
  service to earn full pension which has been denied due to comparatively early
 retirement age in relation to his civil counterparts and in relation to senior
 service officers. Thus, according to the appellant, the policy offixing different D
 weightages for different Ranks was arbitrary and violative of Article 14 since
 the said policy fails to comply the twin tests, namely, that the classification
 must be founded on an intelligible differentia which distinguishes those that
 are grouped together from others and that differentia must have a rational
 relation to the object sought to be achieved by the Act. In this connection, E
 the appellant placed reliance on the judgment of this Court in the case of B.S.
 Nakara v. Union of India, AIR (1983) SC 130. Appellant submitted, in this
 connection, that the standard length of qualifying service for entitlement of
 full pension has been fixed at 33 years for all civilian and service officers.
 Previously it was not so. Previously it depended upon the Rank in question.
 Appellant submitted that, however, now the retirement age of the service F
officers varies from 50 to 52 years, in the case of junior officers, compared
to their civilian counterparts who retire at the age of 58 years and as compared
to senior officers in the Army who retire at the age of 60. In order to remove
this disparity, according to the appellant, weightage was granted in terms of
number of years to be added to the actual qualifying service rendered so that G
junior officers get equal opportunity of benefit of 33 years of service for
entitlement of full pension. Appellant submitted that reducing the weightage
in his case from 8 years to 5 years, after the Report of the Fifth Pay Commission,
was discriminatory as he is deprived of equal opportunity of earning full
pension admissible on completion of 33. years of service. In this connection,
he has placed reliance on a table/chart submitted by him in the special leave H
petition paper book at page 29. Placing reliance on this chart, he submitted
    134                   SUPREME COURT REPORTS                    [2007) 2 S.C.R.

A that all other Ranks in the Army are getting benefit of 58 to 60 years of
    qualifying service for pension by an addition of weightage comprising of the      +
    number of years whereas in the case of Lieutenant Colonel (TS) the qualifyipg
    service on addition of 5 years weightage comes to 56 years for pension and,
    therefore, the impugned policy in O.M. No. l(S)/87/D dated 30.10.87 was totally
B   arbitrary and violative of Article 14 of the Constitution. He submitted that
    the appellant who retired as a Lieutenant Colonel in the time scale got the
    benefit of 5 years of service (51 +5) while other junior and senior Ranks got
    the benefit of 58 to 60 years for pension.

          7. We do not find any merit in the above submission made by the
C appellant on the first point for the following reasons.
         Firstly, under O.M. dated 30.10.87 the expression "qualifying service"
  has been defined to mean actual qualifying service rendered by an officer plus
  a weightage (in years) appropriate to the last Rank held by the officer subject
  to the total qualifying service including weightage not exceeding 33 years. It
D is interesting to note that under the said O.M. dated 30. I0.87 Lieutenant
  Colonel (TS) in the Army, Commander (TS) in the Navy and Wing Commander
  (TS) in the Air Force are all given weightage of 5. Further, the very definition
  of the word "qualifying service" in the O.M. dated 30. I0.87 indicates that the
  weightage (in years) is given appropriate to the last Rank held. In other
  words, weightage has a nexus with the Ranks. Further, the definition of the
E word "qualifying service" also indicates that there is a ceiling/outer limit
  placed on the amount of pension payable which will not exceed the total
  qualifying service of 33 years. Applying this O.M. to the facts of the present
  case we find that appellant was all throughout entitled to weightage of 5 but
  at the relevant time when he retired in 1989 there existed what is called as
p integrated pay scale. The consequence of the integrated pay scale was that
  with 5 years weightage the appellant was entitled to pension the quantum
  whereof was less than that of a Major. To protect his pension, the _appellant
  was given a weightage of 3 additional points (in years). At this stage, it may
   be clarified that the appellant retired on 30.11.89 after completing actual
   qualifying service of 26 years. With the weightage of 8, the total qualifying
G service became 34 and, therefore, in effect he was given a weightage of 7
   because, as stated above, under the O.M. dated 30. I0.87 the qualifying service
   could not got beyond the ceiling of 33 years. However, with the coming into
   force the Fifth Pay Commission, Government of India had to refix the pension
                                                                                          ,.
   because under the Report of the Fifth Pay Commission there was a revision
H of pay scale introduced with effect from 1.1.96 for the Rank of Lieutenant
                               P.K. KAPUR v. U.0.1. [KAPADIA, J.]                   135
           Colonel and other Ranks. Further, after the Fifth Pay Commission the integrated A
           pay Scale system was abolished and a separate pay scale was provided for
           Lieutenant Colonel (TS) with 5 years weightage which was there even under
           the Fourth Pay Commission. The result was that the appellant's pay scale
           was revised under the Fifth Pay Commission which was the basis for qualifying
           pension. Consequently, the pension of Lieutenant Colonel (TS) even with the B
           weightage of 5 years became more than the pension admissible to Major with
           the weightage of 8 years. In this connection, a chart has been submitted by
          the Union of India which indicates Rs.6400/- per month to be pension for a
           Major with 33 years service including 8 years weightage whereas pension
           admissible to Lieutenant Colonel (TS) with 31 years of qualifying service
           including 5 years weightage to be Rs.6905/- per month. Therefore, after the C
           Fifth Pay Commission, on account of increase in the pay scales, pension
~
           admissible to Lieutenant Colonel (TS) with 31 years of service including 5
1         years weightage is more than the pension admissible to a Major with 33 years
'         service including 8 years weightage. Therefore, there is no loss to the
          appellant as alleged. Appellant claims 8 years weightage even after Fifth Pay
          Commission under which his salary has been revised. He claims weightage D
          of 8 to be added to the actuai service rendered by him so that his qualifying
         service becomes 33 and he claims accordingly a pension at the rate of
          Rs. 7350/- per month whereas he is entitled to Rs.6905/- per month. Therefore,
         there is no loss suffered by the appellant as alleged. Appellant is getting
    -+   pension which is more than that of the Major, therefore, he is not entitled to E
         8 years weightage. However, he has been given a weightage of 5 years. In
         other words, the protected weightage of 3 points is removed because after
          Fifth Pay Commission he earns pension more than that of the Major which
         was not there during the period 1989 to 1999. Secondly, it is well settled in
         law that Article 14 permits class legislation and not classification based on
          intelligible differentia which distinguishes those that are grouped together F
         from others and that differentia must have a rational relation to the objects
         sought to be achieved by the Act. In the case of Union of India v. P.N.
         Menon and Ors., [1994] 4 SCC 68, this Court has held that pay revision can
         invite a cut-off date. In matters of pay fixation it is the pay commission which
         is entitled to take into account various parameters depending upon the nature G
         of posts, the pay scales attached to those posts, the duties attached to those
         posts, the qualifications attached thereto, the manner of calculating the
         retirement benefits etc. Both under Fourth Pay Commission and Fifth Pay
         Commission the weightage of 5 is retained. Appellant was always entitled to
         weightage of 5. He was given the weightage of 3 additional points only to
         protect his pension. This protection was given because his pension was H
    136                    SUPREME COURT REPORTS                      [2007] 2 S.C.R.

A falling below the pension admissible to a Major. Under Fourth Pay Commission
    the Government followed integrated pay-scale system whereas under Fifth
    Pay Commission not only the pay scales stood revised but a separate pay
    scale was prescribed for Lieutenant Colonel (TS). The pay scale so prescribed
    was the basis for computation of the pension. Be that as it may, even
B   assuming for the sake of the argument that Article 14 was applicable, the O.M.
    dated 30.10.87 clearly shows that the weightage had nexus with the last Rank
    and the period of 33 years qualifying service was an outer limit of qualifying
    service for calculating pension. Further, the weightage of 5 is given under
    the said O.M. to Lieutenant Colonel (TS) in the Army, Commander (TS) in the
    Navy and Wing Commander (TS) in the Air Force. Therefore, weightage (in
C   years) was given under the said O.M. to the equivalent Ranks in Army, Navy
    and Air Force. Therefore, there is no violation of Article 14 of the Constitution.

         8. Now, coming to the second challenge concerning "enhancement of
  percentage of disability", appellant has submitted that Government of India
  had vide O.M. dated 3.2.2000 enhanced the percentage of disability for Armed
D Forces officers including junior officers in service on or after I. I. 96. Since,
  the appellant retired on 30.11.89 this enhancement of percentage of disability
  was not admissible in the case of the appellant. Appellant submitted that
  there was no reason for denying enhancement of percentage of disability to
  junior officers in the Indian Army who retired prior to 1.1.96. Fixation of this
E cut-off date of 1.1.96, according to the appellant, is arbitrary, irrational and
  violative of Article 14 of the Constitution. Appellant submitted that one of
  the facets of Article 14 is that it eschews arbitrariness in any form. Appellant
  submitted that this Court in the case of Nakara (supra) has observed that
  Article 14 condemns discrimination in any form. He submitted that there is
  no rational for excluding officers from the benefit of enhancement merely
F because they stood retired prior to 1.1.96. Appellant, therefore, submitted
  that O.M. dated 3.2.2000 should be made applicable to officers who have
  retired even prior to 1.1.96.

         9. We do not find any merit in the above arguments. As stated above,
  appellant stood superannuated from the Indian Army on 30.11.89. He was
G entitled to war disability pension. He has been paid arrears on that basis on
  and from 30.11.89. Under Government oflndia letter No.PC 1(2)/97/D (Pen-
  C) dated 16.5.2001 the rate of war injury element for hundred per cent disability
  in battle casualty cases has been prescribed. It is in accordance with the rates
  mentioned in para 11.2 of the letter of Government oflndia No.1(2)/97/D (Pen-
H C) dated 31.1.2001. Under O.M. dated 3.2.2000 the benefit of enhancement
                      P.K. KAPUR v. U.O.L [KAPADIA, J.]                     137
 of percentage of disability, and not the rates, is given to officers who were     A
in service on or after 1.1.96. This enhancement is from 30% to 50%. Appellant
claims this enhancement from 30% to 50% in his case also. However, O.M.
dated 3.2.2000 states that the said enhancement shall be applicable only to
those officers who stood invalided out of service. This provision is not
applicable to the appellant who retired on superannuation prior to 1.1.96.         B
Appellant was not invalided out of service. He completed his normal tenure
of service. The benefit of enhancement is given to those officers who stood
invalided out of service because their tenure of service got cut due to
invalidment on account of disability or war injury. Therefore, the appellant
does not fall in the category of invalidment. The Government is always
entitled to classify officers who stood retired vis-' -vis the officers whose      C
tenure of service got reduced due to invalidment. These are two distinct and
separate categories. Hence, there is no violation of Article 14 of the
Constitution.

       I 0. It is lastly urged by the appellant that :ie has not been paid war
injury pension at the current rate. In this connection, he submitted that under    D
the rules for casualty pensioners invalidation from service is a necessary
condition for the grant of disability pension. If a person is released from
service in a lower medical category then what he was at the time of recruitment,
he would be treated as invalided from service. Appellant contended that he
was released in a lower medical category from service on 30.11.89 then what        E
he was at the time of recruitment and, therefore, he should be treated as
invalided from service with effect from the date of release for the purpose of
grant of disability pension.

       11. We do not find any merit in the third submission. Appellant retired
on 30.11.89 on superannuation. He was never invalided. He now claims to p
be invalided out of service. Having stood retired from service after completing
full tenure of service, appellant cannot now claim that he was invalided out
of service. The concept of invalidment applies to cases in which the tenure
of service is cut short due to invalidment on account of war injury or disability.
The concept of invalidmerit does not apply to cases where an officer completes
his tenure of service and retires on attaining the age of superannuation. G
Therefore, there is no merit in the third CO!ltention raised by the appellant.

      12. For the aforestated reasons, we do not see any merit in this civil
appeal and the same is dismissed with no order as to costs.

RP.                                                         Appeal dismissed.      H