Ex NK Daya Ram Mahlawat (Army) vs UOI & Others on 21 December 2022

**ORDER

21/12/2022**

1. 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 Element to the late husband of the Applicant wef the date of his invaliment from service alongwith rounding off benefits wef 01/1/1996.

2. Brief facts of the case as enunciated by the Applicant are that, the late husband of the Applicant was enrolled in the Army on 05/1/1966 and was invalided out from Service wef 01/2/1986 after serving 20 years and 27 days of service on medical grounds due to the Disability, "Mecular Scar Rt Eye". The RMB assessed the Disability of the Applicant, @20%. However, the late huband of the Applicant was not granted the benefit of Disability Element of Disability Pension by the Respondents. Having been aggrieved, the Applicant filed the OA, praying for relief.

 

3. The Respondents, on the other hand, filed a detailed Reply Statement and the Learned Counsel appearing for the Respondents, has submitted that the late husband of the Applicant was enrolled in the Army (Corps of Signals) on 05/1/1966 and was Discharged from Service on 31/1/1986 under Army Rule 13 (3) Item III (i) read in conjunction with Rule 13 (2A) of the Army Rules 1954 on completion of Service Limit/age limit. He had rendered 20 years and 27 days of service and was granted Service Pension for life vide PPO No S/15713/1986 (Army). The RMB assessed the Disability of the Applicant, "Mascular Scar Rt Eye", @ 20%, and considered it as neither attributable to nor aggravated by military service as also not connected with service. Accordingly, PCDA (P) has rejected the claim of the Applicant for grant of Disability Element of Pension in terms of Para 173 of Pension Regulations for the Army 1961, Part I. The Respondents further contended that the late husband of the Applicant was discharged from Service on 31/1/1986 and the instant OA filed after a lapse of 32 years of his discharge from service is liable to be dismissed on the ground of inordinate delay. To buttress their point of view, the Respondents placed reliance on the judgment of the Hon'ble Apex Court in the case of C Jacob Vs Director of Geology and Mining and Anrs, reported in (2008) 10 SCC 115, wherein it is held that a dead or stale claim is not permitted to be revived and the person who sleeps over his right is not entitled for any indulgence. In view of the aforesaid submission, the Respondents prayed for dismissing the OA being devoid of merits.

4. After perusing the averments of the Learned Counsels and the material available on record, the following facts germane to the case of the late husband of the Applicant emerge :-

- (a) He was enrolled in the Army on 05/1/1966 and was discharged from service on 31/1/1986 under Rule 13 (3) Item III (i) read in conjunction with Rule 13 (2A) of Army Rules, 1954 on culmination of service/age limit. He had rendered 20 years and 27 days of service for which he was granted Service Pension for life.

(b) The RMB assessed the Disability of the Applicant, "Mascular Scar Rt Eye", @20% for two years and considered it as neither attributable to nor aggravated by military service as also not connected with service. The Medical Board also opined that no service factor is responsible for the disability of the late husband of the Applicant.

(c) OA has been filed on 22/5/2018 after an inordinate and inexplicable delay of 31 years, 9 months and 21 days.

(d) As per copy of Death Certificate, husband of the Applicant expired on 26/2/2021.

5. The issue to be determined in this case is whether the late husband of the Applicant who was Discharged from Service on culmination of his service/age limit with Disability assessed at 20% for two years is eligible for grant of Disability Element of Pension.

6. It is evident from the foregoing that the late husband of the Applicant was Discharged from Service on 31/1/1986 under Rule 13 (3) Item III (i) of Army Rules 1954, read in conjunction with Rule 13 (2A) of the Army Rules 1954. He had rendered 20 years and 27 days of service and was granted Service Pension for life. The RMB assessed the Disability of the late husband of the Applicant, "Mascular Scar Rt Eye", @20% for two years and considered it as neither attributable to nor aggravated by military service as also not connected with military service. The RMB has not recommended for a Review thereafter. The OA has been filed after an inordinate and inexplicable delay of 32 years. However, in terms of judgment of the Hon'ble Supreme Court in the case of Dharamvir Singh Vs UOI & Ors, reported in (2013) 7 SCC 316, the late husband of the Applicant is eligible for grant of Disability Element of Pension @20% for two years as assessed by the duly constituted RMB from the date of his discharge from service. Prayer for grant of Disability Element for life is not found favour and is rejected.

7. In fine, the OA is allowed and the Respondents are directed to grant Life Time Arrears of Disability Element of Disability Pension @20% of the late husband of the Applicant for two years wef the date of his Discharge from Service ie, wef 01/2/1986 to the Applicant. The arrears shall be paid to the Applicant within a period of four months from the date of receipt of a copy of this Order, in default thereof, interest @8% shall accrue on the arrears till the actual date of payment.

8. The OA is ordered, accordingly. No order on costs.

9. Pending Application(s), if any, also stand disposed off.

Sd/- x x x

**(SANJIV MITTAL)** **MEMBER (A)**

Sd/- x x x

**(GOVERDHAN BARDHAR)** **MEMBER (J)**

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