EX-LC Shreya Manhas vs Union Of India And Ors

,

Asha Menon, J",

This petition has been filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari quashing the order dated 8th,

November, 2016 by which the petitioner has been denied the benefit of the ‘broad banding’ policy of the Government of India insofar as it",

relates to the grant of disability award to the members of the Armed Forces.,

The facts as set out in the petition are that the petitioner had joined the Officers Training Academy (OTA), Chennai on 15th October, 2010 after",

she was thoroughly examined by various medical experts and was found absolutely fit and free from any disease or medical disability to undergo the,

rigorous military training. However unfortunately on 8th November, 2010, during military training, the petitioner sustained a neck injury resulting in a",

permanent disability namely “FRACTURE NECK OF FEMUR LTâ€. She was found unfit for Army service by a duly constituted Release,

Medical Board (RMB) held at CHAF, Bangalore, which assessed the disability of the petitioner at 40% for life and the disability was also attributable",

to military service. Accordingly, the petitioner was invalidated out of the service on 21st December, 2011.",

It was only after prolonged correspondence with the respondents that finally the respondents sanctioned ex-gratia disability award to the petitioner,

at the rate of 40% for life which was sanctioned to her on 19th March, 2014. The petitioner has claimed that she was entitled to ‘rounding off/broad",

banding’ as per the policy of the Government of India and entitled to receive the disability award for 50% disability for life. She accordingly,

approached the respondents vide Appeal dated 10th October, 2016 requesting them for ‘broad banding/rounding off’ the ex-gratia disability",

award from 40% to 50%. However, by the impugned order dated 8th November, 2016 the said request was rejected. Thereafter, she approached the",

Armed Forces Tribunal (AFT) for relief but the AFT vide order dated 4th October, 2017 dismissed the Original Application bearing number O.A. No.",

1425 of 2017 filed by her on the ground of lack of jurisdiction as being an ex-cadet, she was not covered under the Armed Forces Tribunal Act, 2007.",

Hence the present petition which was filed on 27th July, 2018.",

The learned counsel for the petitioner has submitted that a very short point is involved in the present petition. The respondents have already granted,

to the petitioner ex-gratia disability award vide order dated 19th March, 2014 as per the provisions of Government of India, Ministry of Defence",

(MoD) Letter No. 1(5)/93/D(Pen-C) dated 16th April, 1996 as amended by Government of India, MoD Letter No. 1(6)/99/D(Pen-C) dated 15th",

September, 2003. The petitioner was only praying that the benefit of the letter of the Government of India, MoD bearing No.1(2)/97/I/D(Pen-C) dated",

31st January, 2001 be granted to her. In other words, her disability award should be calculated @50% for life and not @40% for life. The copy of this",

letter is placed on the record as Annexure R-1 to the Rejoinder. The learned counsel has relied on the judgement of a Division Bench of this court in,

Puneet Gupta v. Union of India & Ors. 2016 SCC OnLine Del 3846 to submit that a cadet under training was also found entitled to the benefit of the,

policy dated 31st January, 2001. He has sent us, through email, the judgement in Puneet Gupta (supra) along with some orders of the AFT where the",

benefit of ‘broad banding’ was granted to army personnel and their disability even if just 20% was considered as 50% for purposes of,

calculation of disability award. He has prayed that the same benefit be given to the petitioner.,

On the other hand, the learned counsel for the respondents submitted that the interpretation placed by this court in Puneet Gupta (supra) was",

incorrect as the policy dated 31st January, 2001 was applicable only to Armed Forces Commissioned Officers and Personnel Below Officer Rank and",

was not applicable to cadets/trainees at all, particularly those who could not even complete their training due to injury sustained. The policy of 2001 did",

not mention cadets or non-commissioned officers. According to learned counsel, the policy that was applicable to cadets was the policy dated 16th",

April, 1996 and the petitioner had already been granted all benefits under the said policy.",

On our request, the learned counsel for the respondents had emailed to us the policy dated 16th April, 1996 titled “Scheme for grant of ex-gratia",

awards in cases of death/disablement of cadets (direct) due to causes attributable to or aggravated by military trainingâ€. Clearly this Scheme is,

applicable to cadets who sustained injuries during training or unfortunately died during the course of training. On the other hand, a perusal of Annexure",

R-1 to the Rejoinder shows that it relates to “implementation of Government decisions on recommendations of the 5th Central Pay Commission,

regarding disability pension/war injury pension/special family pension/liberalised family pension/dependent pension/liberalised dependent family pension,

for the Armed Forces Officers and Personnel Below Officer Rank retiring invaliding or dying in harness on or after 1 January 1996â€. It further,

records that the Presidenthad accorded sanction to the modification of the existing Rules and Regulations concerning the pensionary benefits of the,

Commissioned Officers (including MNS) and Personnel Below Officer Rank (PBOR) including NCs(E) of the three Services. No doubt, the word",

“cadet†or “trainee†finds no mention. The contention of the learned counsel for the respondents was that before the Division Bench of this,

court in Puneet Gupta (supra), the courthad not given the government an opportunity to explain the difference in the policy declared on 31st January,",

2001 and the policy governing the cadets/trainees which has been in force since April, 1996.",

On perusal of the judgment in Puneet Gupta (supra), we find that the Division Bench has exhaustively dealt with the policy of 16th April, 1996 in",

that case while determining whether or not the petitioner before it was entitled to any disability pension and disability award as in that case, the",

petitioner was found to have 20% disability though the respondents had interpolated that finding of the Medical Board to portray disability of between,

11% to 19% and thus deny to him the benefit of even the 1996 policy. The courtheld that the petitioner was entitled to disability award. It is thereafter,

that the court recorded the following:,

“30. Though not pleaded in the writ petition, but since it is to the knowledge of this Court and the existence of which was not denied by",

learned counsel for the respondents, on January 31, 2001 the Government of India, Ministry of Defence issued a office memorandum No.",

1(2)/1997/1/D(Pen-C). The subject of the policy circular is the implementation of the decision by the Government concerning disability,

pension to members of the Armed Forces and as per the same any disability above 20% upto 50% has to be treated as a disability of 50%,

and thus we declare that in conformity therewith the petitioner would be entitled to the benefit of disability at 50%. The policy circular,

clearly states that it would be applicable with effect from January 01, 1996 i.e. has a retrospective operation. But this is irrelevant in the",

facts of the instant case because the petitioner was invalided as a trainee on March 18, 2008 and the benefit which the petitioner receives",

as a result of our opinion would be with effect from the date of the order of termination i.e. March 18, 2008.",

The writ petition is accordingly disposed of directing the respondents to pay the ex-gratia amount at the rate contemplated by the first,

limb of the policy circular dated April 16, 1996 as also and additional disability award on ex-gratia basis at the rate contemplated by the",

second limb of the same policy circular and while doing so to give effect to the Government of India memorandum dated January 31, 2001",

i.e. notwithstanding the disability being assessed 20%, to grant the same by treating the disability at 50%.â€​",

It is quite apparent that the court incorporated the policy of 31st January, 2001 in the judgment without a hearing on the said issue, and on the basis",

that ithad knowledge of the existence of a subsequent policy dated 31st January, 2001. There is therefore merit in the contention of the learned",

counsel for the respondents that they had no opportunity to point out the difference in the two policies. Before us, since the applicability of the policy",

Percentage of disability as assessed by invaliding

medical board","Percentage to be reckoned for computing of

disability element

Less than 50,50

Between 50 and 75,75

Between 76 and 100,100