- (1.) THE instant L.P.A. has been preferred against the order dated 16.01.2013 passed in W.P. (S) No. 4140 of 2006 whereby the petitioner's prayer for seeking more compensation on account of 75 % disability, sustained in Kargil area while facing terrorist as being posted under respondent -Border Security Force in the year 1995 was dismissed. Learned counsel for the appellant submitted that in the similarly situated circumstance, one Constable, T. Kujur who had sustained 65 % disability was granted compensation of Rs. 11,00,556/ - while the petitioner was paid a compensation of Rs. 5,37,960/ -. It has also been argued by learned counsel that in the counter affidavit filed in the W.P. (S) No. 4140 of 2006, it had been stated that while calculating the compensation of constable T. Kujur, pay plus dearness allowance was included whereas the petitioner was denied the additional dearness allowance, which is a mandatory provision as per Rule 9(21)(a) of the Fundamental Rules and also other emoluments and the said statutory provision cannot be by -passed by an administrative order.
(2.) ON the other hand, learned counsel for the respondents has submitted that there is clear -cut direction contained in letter No. 45/1/2004 -P and PW(G) dated 27th January, 2005 issued by the Ministry of Personnel Public Grievances and Pensions, Government of India, wherein it has been stated that dearness pay will be included in the basic pay while calculating the compensation after 1st April, 2004.
(3.) IN the background of the said submissions and on perusal of records, we find that it is not disputed that the medical examination of the petitioner had taken place on 22nd August, 2001 and with respect to constable T. Kujur, the disability was found to be 100% and his examination had taken place on 24.11.2004 meaning thereby he was covered under the resolution of the Government of India as stated above. On perusal of the impugned order, it also transpires that the petitioner was given opportunity to bring on record the materials to show that his pay shown in the calculation chart was not in accordance with the Rule which he failed to place before the learned Single Judge.;