Ex Nk Vijay Kumar Rathee (Army) vs UOI & Others on 10 September 2025

O R D E R

10.09.2025

MA No 600/2022

1. MA No 600/2022 has been filed by the Applicant for condonation of delay in filing the OA. Having considered the reasons and grounds stated in the MA, the delay in filing the OA is condoned.

OA No 432/2022

2. By way of this Application under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has prayed for grant of Disability Element of Disability Pension along with Rounding Off benefits for life wef 01.02.2022 and that the arrears be paid along with interest @ 12% per annum.

3. The brief facts of the case, as enunciated by the Applicant are that the Applicant was enrolled in the Army on 20.08.2004. While in Service, he suffered from the disabilities, viz., (i) “PIVD L4-L5 and L5-S1” and “Diabetes

Mellitus Type-II” and was placed in low medical category and on completion of terms of engagement, he was discharged from Service on 31.01.2022, for which he has been granted Service Pension for life. The duly constituted Release Medical Board considered his disabilities, viz., (i) “PIVD L4-L5 and L5- S1” as Attributable to Military Service and “Diabetes Mellitus Type-II” as Neither Attributable to Nor Aggravated by Military Service (NANA) and denied for grant of Disability Element of Disability Pension. The Applicant submits that his Disability Diabetes Mellitus Type-II should have also been considered as Attributable to Military Service as he suffered from the same due to service factors and he should have been granted Disability Element of Disability Pension along with Rounding Off benefits from the date of his discharge from Service. In support of his claim, the Applicant has placed reliance on Hon’ble Supreme Court judgments in the case of Sukhvinder Singh Vs UOI & Ors, (2014) STP 468 SC, Dharamvir Singh Vs UOI & Ors (2013) 7 SCC 316, UOI & Anr Vs Rajbir Singh, JT 2015(2) SC 392 and UOI & Ors Vs Ram Avtar, (2014) SCC Online 1761 and submitted that he is eligible for grant of Disability Element of Disability Pension along with Rounding Off benefits. The Applicant made representation as also issued Legal Notice for the aforesaid prayer, but to no avail. Therefore, the aggrieved Applicant has filed the present OA.

4. The Respondents filed a detailed reply to the Application and while not disputing the basic facts presented by the Applicant, they have submitted that ID (i) of the Applicant was assessed @ 20% for life and considered as Aggravated by Military Service and ID (ii) was assessed @ 20% for life and considered as NANA with composite disability @ 28% for life. Since, the Applicant had rendered his unwillingness certificate for surgery for ID (i), his disability for ID (i) was reduced to 10% and, hence, net assessment of disability for qualifying for Disability Pension was assessed @ 10% for life by the duly constituted Release Medical Board. The Applicant was not invalided out of military service but was discharged from Service on completion of terms of engagement. Since the final disability of the Applicant was below 20%, he was not granted Disability Pension in terms of Rule 173 of Pension Regulations for the Army, 1961 (Part-1) and Rule 81 of Pension Regulations for the Army,

2008 (Part-1). The Applicant was communicated about rejection of his disability pension claim with an advice to prefer an appeal if he was not satisfied with the rejection of the claim, however, he did not prefer any appeal within the stipulated timeframe of six months. The Respondents have further submitted that the duly constituted Release Medical Board assessed his disability @ 10% for life which has to be given due value, weight and credence in the light of Hon’ble Supreme Court judgment in the case of Secy MoD & Ors Vs Damodaran AV, (2009) 9 SCC 140. In view of the aforesaid averments, the Respondents have reiterated that the OA is devoid of merit and deserves to be dismissed.

5. After going through the averments of the Learned Counsels and the material available on record, the following facts emerge:- (a) The Applicant was discharged from service on 31.01.2022 on completion of terms of engagement and has been granted Service Pension for life.

(b) The Applicant refused to undergo surgery for disability “PIVD L4- L5 & L5-S1”, therefore, his disability could not be cured and, consequently, he was discharged from Service on expiry of engagement.

(c) His Disability was assessed at 20% for life and opined as Aggravated by Military Service. However, as the Applicant had rendered his unwillingness for Surgery, the same was reduced to 10% and final assessment qualifying for disability pension was assessed @ 10% for life.

(d) Since ID (ii) of the Applicant “Diabetes Mellitus Type-II” was considered as NANA, the same was not considered in net assessment qualifying for disability pension.

6. The point to be determined is whether a person who has rendered unwillingness for surgery is eligible for grant of Disability Pension?

7. Germane to arriving at a conclusion in this issue are the facts mentioned in the Release Medical Board. In Page No 8, Para 2 (c) of the Release Medical Board, in the question as “Has the individual refused to undergo operation/treatment?”, the answer is “Unwilling for Surgery mentioned in Spl opinion”. In Para 2 (d), in the question as “Has the effect of refusal been explained to and fully understood by individual, viz., a reduction in, or the entire withholding of, any disability pension to which he/she might otherwise be entitled”?, the answer is “Effect of refusal been explained to him and he has fully understood the consequences”. In Para 2 (e), in question as “Does the medical board consider it probable that the operation/treatment would have cured the disability or reduced its percentage?”, the answer is “Yes, it would have reduced the disability”. In Para 2 (f), in the question as “If the reply to (e) is in affirmative, what is the probable percentage to which the disablement could be reduced by operation/treatment?, the answer is as “10% at least”. In Para 2 (g), in the question “Does the Medical Board consider the individual’s refusal to submit to operation/treatment reasonable?” it is answered as “The surgical decompression of nerve roots would have relieved the symptoms but does not stop the disease process”. From the above, it is clear that the medical experts have also opined that probably the disability would have been reduced to 10% but the process of disease will not stop and, hence, there was no absolute guarantee that the disease would get fully cured with the proposed surgery.

8. The issue on the entitlements for Disability Pension wherein an individual suffering from a disability refused to undergo medical treatment has been explained in Para 177 of Pension Regulations for the Army, 1961 (Part-1), which reads as under:- “177. Cases where an individual suffering from a disability accepted as attributable to or aggravated by military service refuses to undergo an operation, or other medical treatment which in the opinion of the service medical authority, would cure the disability or reduce the degree of disablement, shall not be treated as those of “aggravation” or “retardation of cure” under Regulation. 118, but shall be dealt with as follows:-

(a) If the refusal to undergo treatment or an operation is reasonable, the full disability pension normally admissible under the regulations shall be granted.

(b) If the refusal to undergo treatment or an operation is unreasonable, pensionary award be regulated as under:-

(i) In case where the Pension Sanctioning Authority in consultation with the Medical Advisor (Pensions) where necessary, decides that an operation or medical treatment will cure the disability, the disability element shall be withheld but the service element as per regulation 186 shall be granted.

(ii) In cases where the pension sanctioning authority in consultation with the Medical Advisor (Pensions) where necessary decides that an operation or medical treatment will reduce the disability to a lower percentage, the disability element of pension shall be restricted to that element which is appropriate to the lower percentage of disablement. If that lower percentage is less than 20 per cent, then only the normal service element admissible as per regulations 186, shall be granted.

(iii) The question whether an individual’s refusal to undergo medical treatment or an operation for his disability is reasonable or unreasonable shall be decided in accordance with the criteria published in Appendix V to these Regulations.”

9. In the present case, the Applicant refused to undergo surgery and, as per the opinion of medical experts, the disability would have been reduced upto 10% only but the surgery will not stop the disease process and there was no guarantee that after surgery, the disability will be fully cured, rather there were associated risks for further damage to spinal cord and further complications could arise. Therefore, the reduction of his disability to 10% by the Release Medical Board is not justified in any way. Hence, we are of the considered view that the Disability of the Applicant “PIVD L4-L5 & L5-S1” as initially assessed by the Release Medical Board would remain @ 20% for life. However, we make it clear that the ID (ii), ie., Diabetes Mellitus Type-II” shall not be considered in net assessment qualifying for disability pension as the same was clearly considered as NANA by the Release Medical Board. Accordingly, the Applicant is eligible for grant of Disability Element of Disability Pension @ 20% for life along with Rounding Off Benefits to 50% for life from his date of discharge from Service, ie., 01.02.2022.

10. In-fine, we direct the Respondents to grant Disability Element of Disability Pension to the Applicant @ 20% duly rounded off to 50% for life wef 01.02.2022. The arrears of Disability Element of Disability Pension shall be paid to the Applicant within six months of receipt of a certified copy of this Order failing which the arrears shall carry interest @ 6% per annum till the date of actual payment.

11. The OA is disposed off, accordingly. Pending Miscellaneous Application(s), if any, also stand disposed off.

12. No order on costs.

(SANJIV MITTAL)

(GOVERDHAN BARDHAR) MEMBER (A)

MEMBER (J)

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