-service law – MEDICAL DISABILITY PENSION – RETIRED BEFORE 1-1-2006 – Whether entitled for the same – yes – recommended for consideration as per new orders of Govt. – Principal Bench, New Delhi in O.A. No. 139 of 2009, Lt. Col. P.K. Kapur (Retd.) Vs. Union of India and judgments of Armed Forces Tribunal, Regional Bench, Chandigarh as well as judgment of Regional Bench, Chennai, those officers, who have taken voluntary retirement even prior to 01.01.2006 have been granted the disability pension. He submits that the Principal Bench, New Delhi in O.A. No. 139 of 2009 has already struck down Para 2.1 of the Government Circular dated 04.05.2009. The appellant submits that judgment of Principal Bench, New Delhi in O.A. No. 336 of 2011, Maj. (Retd.) Rajesh Kumar Bhardwaj Vs. Union of India & Ors. dated 07.02.2012 has been accepted by the Government of India and now an order dated 19.05.2017 has been issued extending the benefit of disability pension to Armed Forces Personnel, who were retired, discharged from service even before 01.01.2006.- From the above, it is clear that disability of the appellant was aggravated by military service and percentage of disability was 30%. -Release Medical Board (Annexure A/14) adjudicated the appellant’s disability at 30%, which disability has been held to be permanent in nature. The appellant who appears in person makes a statement that he has not taken any lump sum compensation in lieu of disability. We have no reason not to accept his statement. – The appellant thus fulfils all the three conditions for grant of disability pension. In above view of the matter, we are of the view that appellant is fully covered by the order of the Government dated 19.05.2017 Appropriate steps be taken in accordance with Para 5 for grant of disability pension. We, however, make it clear that it shall always be open for the respondents to assess the percentage of the disability of the appellant by convening a Medical Board to find out whether the disability percentage is 20% or less. It will be open to the respondents to discontinue the claim from any future date when they on the basis of any medical report are of the view that the disability has gone below 20%

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3101-3102 OF 2015

EX. LT. COL. R.K. RAI …APPELLANT

VERSUS

UNION OF INDIA & ORS. …RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

These two appeals have been filed by the appellant

challenging the orders dated 20.09.2013 passed by the

Armed Forces Tribunal Regional Bench at Mumbai rejecting

Petitioner’s O.A. No. 25 of 2013 and the order dated

11.06.2014 rejecting the Review Application No. 4 of

2014. The brief facts of the case are:

The appellant was commissioned in the Regiment of

Artillery on 24.12.1982. In the year 1987, while

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performing the duty of Observation Post Officer, the

appellant fell ill, who was treated in Military

Hospital, Devlali. Medical Board was held on

21.01.1988, when he was placed on low medical

category. Medical Board opined that disability was due

to stress and strain of services. On 27.09.2000, the

Medical Re-categorization Board assessed the

appellant’s disability as 50%. In the year 2002,

appellant was posted at Zakhama in Nagaland. Medical

Re-categorization Board held on 20.09.2002 again

assessed the medical disability of the appellant as

50%. On 06.02.2003, appellant applied for premature

retirement. Appellant was retired on 29.07.2003.

Release Medical Board held on 31.03.2004, found that

the appellant was suffering from primary Hypertension,

aggravated due to stress and strain of military

service. Disability was assessed at 30%. The

appellant filed O.A. No. 25 of 2013 in the Armed

Forces Tribunal, Regional Bench, Mumbai, where he

prayed for following reliefs:-

“Relief Sought

In view of the facts mentioned in this

Original Application, the Applicant most

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respectfully prays for the following reliefs:-

A. That the Hon’ble Court be pleased to

direct Respondent No.1 to forward medical

disability pension claim to Respondent

No.2 directing the latter to grant medical

disability pension to the Applicant at the

earliest.

B. That the Hon’ble Court be pleased to pass

necessary direction to Respondent No.2 to

release the medical disability pension in

respect of the Applicant at the earliest.

C. That the Hon’ble Court be pleased to pass

necessary direction to Respondent No.3 to

grant “AGI Disability” as applicable to

the Applicant at the earliest.

D. That the Hon’ble Court be pleased to grant

such other and further reliefs as deemed

fit in the interest of justice.”

The Armed Forces Tribunal vide its judgment dated

20.09.2013 rejected the application. The Tribunal

relying on Regulation 48 and Regulation 50 of Pension

Regulations for the Army, 1961 held that those, who

took voluntary retirement are not entitled for

disability pension. The Tribunal, however, noticed

that on the basis of Sixth Pay Commission Report, an

officer, who seeks voluntary retirement on or after

01.01.2006 and whose disability is 20% or more, either

attributable to or aggravated by military service,

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will be entitled to disability pension. However, that

benefit cannot be granted to the Applicant, because he

had taken voluntary retirement much before the cut off

date of 01.01.2006. The appellant filed a Review

Petition before the Tribunal relying on few judgments

of this Court as well as judgments of Armed Forces

Tribunal, Principal Bench, New Delhi in O.A. No. 139

of 2009, Lt. Col. P.K. Kapur (Retd.) Vs. Union of

India. In the Review Petition, the petitioner relied

on the judgment of Principal Bench which held that the

cut off date making difference between the personnel,

who retired before 01.01.1996 and after 01.01.1996, is

discriminatory and arbitrary. The Tribunal relying on

the judgment of this Court in Union of India Vs. Ajay

Wahi (2010) 11 SCC 213 rejected the Review Petition.

Aggrieved against dismissal of his O.A. as well as the

Review Petition, the appellant has filed these

appeals.

2. The appellant, Ex. Lt. Col. R.K. Rai has appeared in

person. We have also heard learned counsel appearing

for the Union of India as well as learned counsel

appearing for the respondent No.5.

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3. The appellant appearing in person contends that in

view of the judgment of Armed Forces Tribunal,

Principal Bench, New Delhi in O.A. No. 139 of 2009,

Lt. Col. P.K. Kapur (Retd.) Vs. Union of India and

judgments of Armed Forces Tribunal, Regional Bench,

Chandigarh as well as judgment of Regional Bench,

Chennai, those officers, who have taken voluntary

retirement even prior to 01.01.2006 have been granted

the disability pension. He submits that the

Principal Bench, New Delhi in O.A. No. 139 of 2009

has already struck down Para 2.1 of the Government

Circular dated 04.05.2009. The appellant submits

that judgment of Principal Bench, New Delhi in O.A.

No. 336 of 2011, Maj. (Retd.) Rajesh Kumar Bhardwaj

Vs. Union of India & Ors. dated 07.02.2012 has been

accepted by the Government of India and now an order

dated 19.05.2017 has been issued extending the

benefit of disability pension to Armed Forces

Personnel, who were retired, discharged from service

even before 01.01.2006. He submits that in view of

the order dated 19.05.2017, the appellant is entitled

for disability pension. He further submits that in

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his original application, he has prayed for relief to

grant “AGI Disability”, which has not been

considered.

4. Learned counsel for the Union of India refuting the

submission of the appellant contends that against one

of the judgments relied on by the appellant of the

Armed Forces Tribunal; S.L.P. is pending in this

Court. He further submits that from the order dated

19.05.2017, it is clear that the grant of disability

pension to Pre-2006 retired/ discharged Armed Forces

Personnel is subject to conditions as laid down in

Para 3 and the appellant does not fulfil the

conditions mentioned therein.

5. Learned counsel for the respondent No.5 submits that

no notice was served to respondent No. 5 before the

Armed Forces Tribunal in O.A. No. 25 of 2013, hence

no one could appear on behalf of the respondent No.5

and file the objection. It is submitted on behalf of

respondent No.5 that there is no material available

with regard to the claim of the appellant on “AGI

Disability”. He submits that the order of the

Tribunal does not even indicate that the AGI

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Disability claim was not even argued before the

Tribunal. It was submitted by learned counsel for

respondent No.5 that the appellant is not entitled

for any “AGI Disability” and under the Army Group

Insurance, fund whatever was due to the appellant has

already been paid.

6. We have considered the submissions of the appellant

and the learned counsel appearing for the Union of

India as well as respondent No.5 and have perused the

records.

7. A copy of the order dated 19.05.2017 issued by the

Government of India, Ministry of Defence has been

submitted by the appellant to the Court, a copy of

which has also been given to the learned counsel for

the respondents. The Government of India, Ministry of

Defence having accepted the claim of those officers,

who took voluntary retirement prior to 01.01.2006,

the claim of the appellant needs to be examined in

view of the aforesaid order. It is useful to extract

the entire Government Order dated 19.05.2017, which

is to the following effect:-

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“No. 16(05)/2008/D(Pension/Policy)

Government of India

Ministry of Defence

Department of Ex-Servicemen Welfare

New Delhi-110011

Dated 19th May 2017

To,

The Chief of the Army Staff

The Chief of the Naval Staff

The Chief of the Air Staff

Subject: Grant of Disability Element to Armed

Forces Personnel who were retained in service

despite disability attributable to or aggravated

by Military Service and subsequently proceeded on

premature/voluntary retirement prior to

01.01.2006.

Sir,

The undersigned is directed to refer to this

Ministry’s letter No.16(5)/2008/ D(pen/Policy)

dated 29th September 2009 wherein disability

element/war injury element have been allowed to

such Armed Forces Personnel who were retained in

service despite disability and retired/discharged

voluntary or otherwise in addition to retiring/

service pension or retiring/ service gratuity,

subject to condition that their disability was

accepted as attributable to or aggravated by

military service and had foregone lump sum

compensation in lieu of that disability.

2. In terms of Para- 3 of the above referred

letter the provisions stated above are applicable

to the Armed Forces Personnel who were,

retired/discharged from service on or after

01.01.2006. Armed Force Tribunal (Principal

Branch) New Delhi in OA No. 336 of 2011 vide

their order dated 07.02.2012 have struck down

Para-3 of this Ministry’s above letter.

3. The issue of extension of above benefit to the

Pre-2006 retired/discharged Armed Forces

Personnel, who were retained in service despite

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disability attributable to or aggravated by

military service, was under active consideration

of Government. Now, the President is pleased to

decide that all Pre- 2006 Armed Forces Personnel

who were retained in service despite disability

and retired voluntarily or otherwise will be

allowed disability element/war injury element in

addition to retiring/ service pension or

retiring/ service gratuity, subject to the

condition that their disability was accepted as

attributable to or aggravated by military service

and had foregone lump sum compensation in lieu of

that disability. Further, concerned Armed Forces

Personnel should still be suffering from the same

disability which should be assessed at 20% or

more on the date of effect of this letter.

4. Implementation of these orders is expected to

be arduous and challenging. Documents like

Medical Board proceedings, retention of the

personnel in service despite disability, option

of individual foregoing lump sum compensation and

non-payment of lump sum compensation would be

required in all cases which may not be available

at the end of Pay Accounting Authorities/ Record

offices and Pension sanctioning authorities

readily. In such cases, pensioners/ family

pensioners may be asked to produce the copies of

relevant documents to the Executive authorities

in support of their claims.

5. The claim for grant of disability element/ war

injury element in affected cases will be

submitted to the PSA concerned by PCDA(O) Pune/

NPO/AFCAO/ Record office along-with copy of

medical board/ fresh medical board proceedings

showing extent of disability applicable as on

date of effect of this letter in respect of

Commissioned officers/ JCOs/ ORs. It win be

responsibility of PCDA(O) Pune/ NPO/ AFCAO and

Record office to confirm payment/ non- payment of

lump sum-compensation in lieu of disability

element to Commissioned officers and JCOs/ ORs. A

sanction showing extent of disability and its

attributability/ aggravation due to Military

service in terms of MOD letter No.

4684/DIR(PEN)/2001 dated 14.08.2001 would be

issued by the Service HQrs in case of

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Commissioned Officers and sanction would be

issued by IO/ C Record office in case of JCOs/

ORs.

6. The corrigendum PPOs granting disability

element/ war injury element in all affected cases

will be issued by respective Pension Sanctioning

Authorities.

7. The provisions of this letter shall take

effect from 01.01.2006.

8. Pension Regulation of all the three services

will be amended in due course.

9. This Issues with the concurrence of Finance

Division of this Ministry their letter I.D. No.

10(3)2012/FIN/PEN dated 19th May 2017.

10. Hindi version will follow.

Yours faithfully

Sd/-

(Manoj Sinha)

Under Secretary to the Government of India”

8. Para 3 of the Government Order provides that the

extension of benefits to Pre-2006 retired is on

following conditions:-

(a) Their disability was accepted as

attributable to or aggravated by military

service

(b) They had foregone lump sum compensation in

lieu of that disability.

(c) The concerned Armed Forces Personnel

should still be suffering from the same

disability which should be assessed at 20%

or more on the date of effect of this

letter.

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9. The appellant has relied on the Release Medical Board

proceeding dated 31.03.2004 which has been brought on

record as Annexure A/14. A perusal of the opinion of

the Medical Board as contained in Part 5 of the

document, makes it clear that opinion of the Medical

Board is that Primary Hypertension of the appellant

is aggravated by Army service and the reasons given

are that “due to stresses & strains of military

service”. It is useful to extract opinion of Medical

Board in Part V, which is to the following effect:-

Part V

OPINIONS OF THE MEDICAL BOARD

(Not to be communicated to the individual)

1. Clinical relationship of the disability with service

condition or otherwise

Disability Attributab

le to

service

(Y/N)

Aggravated

By Service

(Y/N)

Not

connected

with

service

(Y/N)

Reason/

case

specific

conditions

and period

in service

(a)

Primary

HYPERTENSI

ON

No YES No Due to

stresses &

strains of

mil

service.

10.Another part of the same opinion of Medical Board,

which is with regard to percentage of disablement, is

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to the following effect:-

1. What is percent degree of disablement as compared

with a healthy person of the same age and sex?

(Percentage will be expressed as Nil of as follows):-

1-5%, 6-10%, 11-14%, 15-19% and thereafter in multiples

of ten from 20% to 100%.

Disability

assessment

(As numbered

in

disabilities

with Question

1 part II

Percentage of

disablement

Probable

duration of

this degree

of

disablement

Composite for

all duration

(Max 100%)

(a) Primary 30% Permanent 30%

(b)

(c)

(d) Sd/-x x x x

MANOJ

PAPRIKAR

Maj.

Sd/- x x x x

(Ms. Vandana

Negi)

Lt. Col.

11.From the above, it is clear that disability of the

appellant was aggravated by military service and

percentage of disability was 30%. Para 5 of the

Order of the Government dated 19.05.2017 provides

that claim for grant of disability element in

affected cases will be submitted to the PSA concerned

by PCDA(O) Pune/ NPO/AFCAO/ Record office along-with

copy of medical board/ fresh medical board

proceedings showing extent of disability applicable

as on date of effect of this letter in respect of

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Commissioned officers/ JCOs/ ORs. Para 7 of the

order mentions that “The provisions of this letter

shall take effect from 01.01.2006.”

12.Thus, the disability for the purposes of the order

dated 19.05.2017 has to be looked into on the date of

01.01.2006. The said conclusion is also decipherable

from Para 3 of the order.

13.From the above, it is clear that Release Medical

Board (Annexure A/14) adjudicated the appellant’s

disability at 30%, which disability has been held to

be permanent in nature. The appellant who appears in

person makes a statement that he has not taken any

lump sum compensation in lieu of disability. We have

no reason not to accept his statement.

14. The appellant thus fulfils all the three conditions

for grant of disability pension. In above view of

the matter, we are of the view that appellant is

fully covered by the order of the Government dated

19.05.2017. Appropriate steps be taken in accordance

with Para 5 for grant of disability pension. We,

however, make it clear that it shall always be open

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for the respondents to assess the percentage of the

disability of the appellant by convening a Medical

Board to find out whether the disability percentage

is 20% or less. It will be open to the respondents

to discontinue the claim from any future date when

they on the basis of any medical report are of the

view that the disability has gone below 20%.

15.In so far as the case of “AGI Disability” as prayed

by the appellant before us, a perusal of the order of

the Tribunal rejecting the claim does not indicate

that the said claim was pressed before the Tribunal.

In the Review Petition also, the appellant does not

appear to have pressed the said claim. We, thus, do

not find it necessary to consider the said claim in

these appeals. However, liberty is reserved to the

appellant to file a Review Petition before the

Tribunal, in event, the claim was pressed and not

considered.

16.In result, the civil appeals are allowed. Judgment

and order of the Tribunal dated 20.09.2013 and

11.06.2014 are set aside. The respondents are

directed to process the claim of the appellant as per

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the Government order dated 19.05.2017 in light of the

observations as made above.

……………………..J.

( A.K. SIKRI )

……………………..J.

( ASHOK BHUSHAN )

NEW DELHI,

FEBRUARY 16, 2018.