Ex Hav & Hony Nb Sub Mahendra Singh (Army) vs UOI & Others on 30 July 2025

O R D E R

30.07.2025

MA No 409/2019

1. MA No 409/2023 has been filed by the Applicant for condonation of delay of more than 23 years in filing the OA. Having considered the reasons and grounds stated in the MA and also the fact that the pension is a recurring cause of action, the delay in filing the OA is condoned.

OA No 272/2019

2. By way of this Application under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has prayed for directing the Respondents to grant Disability Pension to the Applicant after considering his disability from 15-19% to 50% wef 24.04.1996 or arrange a Re-Assessment Medical Board of the Applicant to ascertain present medical condition of the Applicant.

3. Brief facts of the case as enunciated by the Applicant are that the Applicant was enrolled in the Army on 03.09.1962 and after rendering more than 22 years of Service, he was discharged from Service on 30.09.1984. The duly constituted Release Medical Board assessed his Disability “Sciatica Syndrome (Lt)” @ 20% for two years and considered it as Aggravated by Military Service and, accordingly, he was granted Disability Element of Disability Pension for two years from 01.10.1984 to 22.04.1986, in addition to Service Pension for life. Thereafter, the Applicant’s Re-Survey Medical Board (RSMB) was held in 1986, which assessed his Disability @ 20% for life, however, MA (P) at PCDA (P) arbitrarily assessed it @ 20% for ten years and granted Disability Pension till 23.04.1996. After ten years, next RSMB was held in 1996, which assessed his Disability @ 20% for life wef 24.06.1996 but the MA (P) at PCDA (P) again re- assessed his disability @ 15-19% for ten years and discontinued the Disability Element of Disability Pension wef 24.06.1996. The Applicant submits that PCDA (P) has no jurisdiction to overrule the opinion of medical boards and he is eligible for grant of Disability Pension for life wef 24.06.1996. The Applicant made representations as also issued Legal Notice for grant of Disability Pension, but to no avail. Therefore, the aggrieved Applicant has filed present OA.

4. The Respondents filed a detailed reply to the Application. While not disputing the basic facts presented by the Applicant, they have submitted that the disability was re-assessed @ 15-19% for ten years wef 24.04.1996 by MA (P) at PCDA (P), hence the Applicant is not eligible for grant of Disability Element of Disability Pension wef 24.04.1996. Further, on expiry of ten years, the Applicant was asked to appear before the RSMB in 2006, however, he did not appear before the RSMB. Therefore, he is not eligible for grant of Disability Element of Disability Pension wef 24.04.1996.

5. We have heard Learned Counsel for the parties and perused the records.

6. It is not in dispute that the Applicant’s disability was assessed by RSMB held in 1996 @ 20% for life, but the MA (P) at PCDA (P) re-assessed his disability @ 15-19% for ten years and discontinued Disability Element of Disability Pension wef 24.04.1996.

7. The entitlement for grant of Disability Pension is mentioned in Rule 173 of Pension Regulations for the Army, 1961 (Part-1), which reads as under:- "173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over.

173-A. Individuals who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative employment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.

Note: The above provision shall also apply to individuals who are placed in a low medical category while on extended service and discharged on the account before the completion of the period of their extension.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II."

8. The provisions for grant of pensionary awards when the degree of disablement is reassessed at less than 20% are mentioned in Rule 186 of Pension Regulations for the Army, 1961 (Part-1), which read as under:- “186. (1) An individual who is invalided out of service with a disability attributable to or aggravated by service but assessed below at below 20 per cent shall be entitled to service element only.

An individual who was initially granted disability pension but whose disability is re-assessed at below 20% subsequently shall cease to draw disability element of disability pension from the date it falls below 20 per cent. He shall however continue to draw the service element of disability pension.”

9. The Hon’ble Supreme Court in its judgment in the case of Secretary, Ministry of Defence and others Vs. AV Damodaran (dead) through LRs and Others, reported in (2009) 9 SCC 140, clearly brings out the following principles with regard to primacy of opinion of medical board:- “8. When an individual is found suffering from any disease or has sustained injury, he is examined by the medical experts who would not only examine him but also ascertain the nature of disease/injury and also record a decision as to whether the said personnel is to be placed in a medial category which is lower than ‘AYE’ (fit category) and whether temporarily or permanently. They also give a medical assessment and advice as to whether the individual is to be brought before the release/invalidating medical board. The said release/invalidating medical board generally consists of three doctors and they, keeping in view the clinical profile, the date and place of onset of invaliding disease/disability and service conditions, draws a conclusion as to whether the disease/injury has a causal connection with military service or not. On the basis of the same, they recommend (a) attributability, or (b) aggravation, or (c) whether connection with service. The second aspect which is also examined is the extent to which the functional capacity of the individual is impaired. The same is adjudged and an assessment is made of the percentage of the disability suffered by the said personnel which is recorded so that the case of the personnel could be considered for grant of disability element of pension. Another aspect which is taken notice of at this stage is the duration for which the disability is likely to continue. The same is assessed/recommended in the form of AFMSF-16. The Invalidating Medical Board forms its opinion/recommendations on the basis of the medical report, injury report, court of enquiry proceedings, if any, charter of duties relating to peace or field area and, of course, the physical examination of the individual.

9. The aforesaid provisions came to be interpreted by the various decisions rendered by this Court in which it has been consistently held that the opinion given by the doctors or the medical board shall be given weightage and primacy in the manner for ascertainment as to whether or not the injuries/illness sustained was due to or was aggravated by the military service which contributed to invalidation from the military service.”

10. As regards rejection of Disability Pension claim by the PCDA (P) overruling the opinion of the Medical Authorities, the Hon’ble Supreme Court has given a final and definitive judgment on the question in Ex Sapper Mohinder Singh Vs UOI (Civil Appeal No 164 of 1993) decided on 14/1/1993 wherein it has observed as follows :- “From the above narrated facts and the stand taken by the parties before us, the controversy that falls for determination by us is in a very narrow compass viz, whether the Chief Controller of Defence Accounts (Pension) has any jurisdiction to sit over the opinion of the experts (Medical Board) while dealing with the case of grant of disability pension, in regard to the percentage of the disability pension, or not. In the present case, it is nowhere stated that the petitioner was subjected to any higher medical board before the Chief Controller of Defence Accounts (Pension) decided to decline the disability pension to the petitioner. We are unable to see as to how the accounts branch dealing with the pension can sit over judgment of the experts in the medical line and comment upon the extent of disability without making any reference to a detailed or higher medical board which can be constituted under the relevant instructions and rules by the Director General of Army Medical Corps”.

11. The issue relating to grant of Rounding Off Benefit of the Disability Element of Pension is no longer res integra in view of the order passed by the Hon’ble Supreme Court in UOI & Ors Vs Ram Avtar in Civil Appeal No 418 of 2012, decided on 10.12.2014 whereby the Hon’ble Supreme Court has directed the Respondents to grant the said benefits also to those personnel who have not only been invalided out from service but to other categories also.

12. In the present case, the Disability of the Applicant was assessed by RSMB @ 20% for life, but the MA (P) at PCDA (P) re-assessed his disability @ 15-19%

for ten years and discontinued Disability Element of Disability Pension wef 24.04.1996. In the light of principles laid down by various judgments of Hon’ble Supreme Court as mentioned above, this Tribunal is of the view that the MA (P) at PCDA (P) was not justified in re-assessing the Disability of the Applicant below 20% for ten years. The Disability of the Applicant was assessed @ 20% for life, therefore, the Applicant is eligible for grant of Disability Element of Disability Pension duly rounded off to 50% from the date of his discharge from Service. However, in the light of principles settled by Hon’ble Supreme Court in the case of Tarsem Singh, 2008 (8), SCC 648, the Applicant is eligible for grant of Disability Pension three years prior to the date of filing the OA on 09.05.2019.

13. The Respondents are directed to grant of Disability Element of Disability Pension to the Applicant duly Rounded Off to 50% from 09.05.2016, ie., three years prior to the date of filing the OA. The arrears of pension shall be paid within six months from the date of receipt of a certified copy this Order, failing which, the arrears shall carry interest at 6% per annum till the date of actual payment.

14. The OA is ordered accordingly. Miscellaneous Application(s) if any pending, also stands disposed off.

15. No order on costs.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

Ssy/-