Supreme Court of India
G H UNION OF INDIA & ORS. versus WING COMMANDER S.P. RATHORE on 11 December 2019
990
[2019] 18 S.C.R. 990
SUPREME COURT REPORTS
[2019] 18 S.C.R.
AUNION OF INDIA & ORS.
v.
WING COMMANDER S.P. RATHORE
(Civil Appeal No. 10870 of 2018)
BDECEMBER 11, 2019
[DEEPAK GUPTA AND SANJIV KHANNA, JJ.]
Armed Forces – Air Force – Disability pension – Entitlement– Disability pension consisting of a service element and a disabilityelement – Appellant, an Air Force Officer, was superannuated fromCservice – His disability was less than 20% – Whether appellant nothaving 20% disability was at all entitled to disability pension –Held: Both Regulation 37(a) of the Pension Regulations and Para8.2 of Circular dated 31.01.2001 issued by Ministry of Defenceclearly provided that disability element was not admissible if theDdisability was less than 20% – In view of the provisions, appellantwas not entitled to disability pension – Consequently, there was noquestion of rounding off (of his disability) by applying the provisionsof Para 7.2 of the Circular, as done by the Armed Forces Tribunal(AFT) – AFT erred in applying the principles of rounding off (ofdisability) without determining whether appellant was entitled toEdisability pension at all – When appellant is not entitled to disabilitypension, there would be no question of rounding off (of his disability)by application of the provisions of Para 7.2 – Defence ServiceRegulations – Pension Regulations for the Air Force, 1961 – rr.37(a),(b) – Circular dated 31.01.2001 issued by Ministry of Defence –FPara 7.2 and 8.2.
Allowing the appeal, the Court
HELD: 1. A bare reading of rr.37(a), (b) of the PensionRegulations for the Air Force, 1961 makes it clear that an officerof the Air Force who retires on attaining the age of superannuationGis entitled to disability pension only if disability is assessed at20% or above. Furthermore, this disability must be attributableor aggravated by service rendered in the Air Force. [Para 3][992-E]
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2. Para 7.2 of Circular dated 31.01.2001 issued by theMinistry of Defence which deals with officials of Armed Forcesinvalided out under circumstances mentioned in Para 4.1 providesthat they would be entitled to rounding of the disability. Therefore,if the disability was less than 50%, it would be rounded off to50%. If the disability was between 50 and 75% it would berounded off to 75%. If the disability was between 76 and 100% itwould be rounded off to 100%. Para 8.2 of the said circular fallsunder the heading of Disability Element on Disability/Dischargeand provides that the provisions contained in Para 7.2 shall notbe applicable for computing disability element in cases wherethe disability was less than 20%. Both Regulation 37(a) and Para8.2 clearly provide that the disability element is not admissible ifthe disability is less than 20%. In that view of the matter, thequestion of rounding off would not apply if the disability is lessthan 20%. If a person is not entitled to the disability pension,there would be no question of rounding off. [Paras 6, 9][993-D-F;994-B]
3. The Armed Forces Tribunal (‘AFT’) put the cart beforethe horse. It applied the principles of rounding off withoutdetermining whether the petitioner/applicant before it wouldentitled to disability pension at all. In view of the provisions, theoriginal petitioner/applicant before the AFT is not entitled todisability pension. Therefore, the question of applying theprovisions of Para 7.2 would not arise in his case. In this view ofthe matter, the order of the AFT is set aside. [Paras 10, 11][994-C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10870of 2018.
From the Judgment and Order dated 15.03.2018 of the ArmedForces Tribunal, Regional Bench, Lucknow in O.A. No. 477 of 2017and order dated 12[th] July, 2018 in M.A. No. 1306 & 1307/2018 in OANo. 477/2017.
Ms. V.Mohana, R. Balasubramanian, Sr. Advs., Pranay Ranjan,Santosh Kr. Vishwakarma, Arvind Kumar Sharma, Advs. for theAppellants.
Mohan Kumar, Ms. Rashmi Singh, Ms. Ritu Bhardwaj, Ms. NeetuSingh, Ramesh Chandra, Advs. for the Respondent.
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AThe Judgment of the Court was delivered by DEEPAK GUPTA, J.
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1. The short question involved in this appeal filed by the Union ofIndia is whether disability pension is at all payable in case of a Air ForceOfficer who superannuated from service in the natural course and whoseBdisability is less than 20%.
2. We may make reference to the Defence Service RegulationsPension Regulations for the Air Force, 1961. Regulations 37(a) and (b)under the heading “Disability Pension – when admissible” read as follows :
“37(a) An officer who is retired from air force service on accountof a disability which is attributable to or aggravated by such serviceand is assessed at 20 percent or over may, on retirement beawarded disability pension consisting of a service element and adisability element in accordance with the regulations in this section.
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D(b) The question whether a disability is attributable to or aggravatedby air force service shall be determined under the regulations inAppendix II.”
3. A bare reading of the aforesaid provision makes it clear that anofficer of the Air Force who retires on attaining the age of superannuationis entitled to disability pension only if disability is assessed at 20% orEabove. Furthermore, this disability must be attributable or aggravated byservice rendered in the Air Force.
4. So far as the second part is concerned, we are not going intothat issue since in this case, it is admitted that the disability was aggravateddue to service rendered in the Air Force. The only issue is whether theFAppellant not having 20% disability is at all entitled to disability pension.
5. Both learned senior counsel appearing for the Union of Indiaand learned counsel appearing for the Respondent rely upon Paras 7.2and 8.2 of Circular dated 31.1.2001 issued by Ministry of Defence whichread as follows :G
“7.2 Where an Armed Forced personnel is invalided out undercircumstances mentioned in Para 4.1 above, the extent of disabilityor functional incapacity shall be determined in the following mannerfor the purposes of computing the disability element:- H
UNION OF INDIA & ORS. v. WING COMMANDERS. P. RATHORE [DEEPAK GUPTA, J.]
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“8.2 For disabilities less than 100% but not less than 20% theabove rates shall be proportionately reduced. No disability elementshall be payable for disabilities less than 20%. Provisions containedin Para 7.2 above shall not be applicable for computing disabilityelement. Disability actually assessed by the duly approved ReleaseMedical Board/Invaliding Medical Board as accepted by thePension Sanctioning Authority, shall reckon for computing disabilityelement.”
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6. Para 8.2 falls under the heading of Disability Element onDisability/Discharge. A bare reading of Para 8.2 shows that where thedisability is more than 20% but less than 80%, the rates prescribed earlierwould be proportionately reduced. Again, it is made clear that no disabilityelement shall be payable for disabilities less than 20%. Para 8.2 alsoprovides that the provisions contained in Para 7.2 shall not be applicablefor computing disability element in such cases. Para 7.2 which dealswith officials of Armed Forces invalided out under circumstancesmentioned in Para 4.1 would be entitled to rounding of the disability.Therefore, if the disability was less than 50%, it would be rounded off to50%. If the disability was between 50 and 75% it would be rounded offto 75%. If the disability was between 76 and 100% it would be roundedoff to 100%.
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7. Reliance has been placed by the learned counsel for theRespondent on the Order dated 10.12.2014 of this Court in “Union ofIndia and Ors. Versus Ram Avtar” (Civil Appeal No.418 of 2012 etc.)and subsequent letter dated 18.4.2016 sent by the Ministry of Defenceto the Chief of all the Armed Forces.
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8. This Court in Ram Avtar (supra), while approving the judgmentof the Armed Forces Tribunal only held that the principle of rounding offas envisaged in Para 7.2 referred to herein above would be applicableeven to those who superannuated under Para 8.2. The Court did not H
Adeal with the issue of entitlement to disability pension under theRegulations of Para 8.2.
9. As pointed out above, both Regulation 37(a) and Para 8.2 clearlyprovide that the disability element is not admissible if the disability is lessthan 20%. In that view of the matter, the question of rounding off wouldBnot apply if the disability is less than 20%. If a person is not entitled tothe disability pension, there would be no question of rounding off.
10. The Armed Forces Tribunal (‘AFT’), in our opinion, put thecart before the horse. It applied the principles of rounding off withoutdetermining whether the petitioner/applicant before it would entitled toCdisability pension at all.
11. In view of the provisions referred to above, we are clearly ofthe view that the original petitioner/applicant before the AFT is not entitledto disability pension. Therefore, the question of applying the provisionsof Para 7.2 would not arise in his case. In this view of the matter, we setDaside the order of the AFT and consequently, the original applicationfiled by the Respondent before the AFT shall stand dismissed.
The appeal is allowed accordingly.
Bibhuti Bhushan BoseE
Appeal allowed.
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