EX-HAV ASHOK KUMAR versus UNION OF INDIA & ORS.

Citation: [2019] 11 S.C.R. 30 · Decided: 24-07-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 11 S.C.R.
EX-HAV ASHOK KUMAR
v.
UNION OF INDIA & ORS.
(Civil Appeal No.6126 of 2019)
JULY 24, 2019
[DR. DHANANJAYA Y CHANDRACHUD
AND INDIRA BANERJEE, JJ.]
Pension Regulations for the Army, 1961 – Regulations 173,
173-A – On completing original tenure of 24 years of service on 27
Dec. 2010, the appellant, Havildar in the Army was granted
extension of service for two years until 26 Dec. 2012 – During the
course of extended tenure, he suffered stroke and was re-categorised
into the category described as SHAPE-3 (Permanent) with an 80%
disability – Appellant was discharged from service – Appellant’s
claim seeking the grant of disability pension was allowed by the
Armed Forces Tribunal (AFT) – Appellant moved the AFT seeking
payment of ex-gratia compensation of Rs.9,00,000/- based on policy
circular dtd. 26 Dec.2011 – Rejected – On appeal, held: On merits,
the appellant was granted disability pension under the 1961
Regulations– 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% or
more –Regulation 173-A extends the provision for disability pension
by a deeming fiction under which a person who is placed in low
medical category while on extended service and is consequently
discharged will also stand covered by the grant of disability pension
– Deeming fiction is confined to the grant of a benefit to the extent
specified in Regulation 173-A – Initially by policy decision of the
Government of India datd. 4 June 2010, ex-gratia compensation
was provided to the next of kin in cases of death – This was extended
on 26 Dec. 2011 to personnel who are disabled or incapacitated
on account of causes attributable to or aggravated by military
service – Appellant evidently did not meet that requirement of the
policy circular since he was not boarded out of service on account
of disability/war injury attributable to or aggravated by military
service – He was entitled to disability pension in view of Regulation
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173-A – Significantly, under Regulation 173-A, he is deemed to
have been invalidated from service for the purpose of the entitlement
rules laid down in Appendix 2 to the Regulations – Fiction under
Regulation 173-A cannot be extended to the policy document dtd.
26 Dec. 2011 – If the intent of the Policy was to grant ex-gratia
compensation to every person who is granted a disability pension,
it would have provided so – Claim for ex-gratia compensation could
not have been entertained – Armed Forces – Service Law – Code of
Civil Procedure, 1908 – Or. II, r.2.
Appellant, a Havildar in the Army completed his original
tenure of 24 years of service on 27 Dec.2010. He was granted
extension of service for two years until 26 Dec. 2012. During the
course of extended tenure, the appellant suffered a stroke and
was re-categorised into the category described as SHAPE-3
(Permanent) with an 80% disability. The appellant was discharged
from service. In 2013, the Appellant moved the Armed Forces
Tribunal (AFT) at its Principal Bench seeking the grant of
disability pension. The claim was allowed by the AFT. However,
the claim of rounding off of the disability pension was kept open
on the hypothesis that the issue was pending decision before
Supreme Court. The appellant filed Review Application before
the AFT, which was allowed. The AFT held that as a matter of
fact, it was mistaken in its finding that the issue of rounding off
was pending before Supreme Court and that the appellant was
entitled to the benefit of rounding off from 80% to 100%. In 2016,
the appellant moved the AFT seeking the payment of ex-gratia
compensation of Rs.9,00,000/- based on policy circular dtd. 26
Dec. 2011. The claim was rejected by the AFT. Hence, the present
appeal.
Dismissing the appeal, the Court
HELD: 1.1 Regulation 173, Pension Regulations for the
Army, 1961 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 serv

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