EX. LT. COL. R. K. RAI versus UNION OF INDIA & ORS. on 16 February 2018

EX. LT. COL. R. K. RAI

v.

UNION OF INDIA & ORS.

(Civil Appeal Nos. 3101-3102 of 2015)

FEBRUARY 16, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Armed Forces – Pension Regulations for the Army, 1961 –Regulations 48, 50 – Disability pension – Entitlement to – Appellant,commissioned in the Artillery Regiment, fell ill while performing theduty of Observation Post Officer – Medical Board opined thatmedical disability was due to stress and strain of services – Appellantapplied for premature retirement and retired on 29.07.2003 –Medical Board assessed appellant’s disability at 30% – O.A filedby appellant before Armed Forces Tribunal for grant of medicaldisability pension, rejected on ground that it cannot be granted tothe appellant as he had taken voluntary retirement much before thecut off date for grant of disability pension, i.e. 01.01.2006 – Reviewpetition also dismissed – On appeal, held: Government of Indiaissued order dated 19.05.2017 extending the benefit of disabilitypension to Armed Forces Personnel, who retired/discharged fromservice even before 01.01.2006 – Appellant fulfills all the threeconditions for grant of disability pension and is fully covered byGovernment order dtd. 19.05.2017 – Judgments of the Tribunal areset aside – Respondents are directed to process the claim of appellantas per Government order dtd. 19.05.2017 – However, it shall alwaysbe open for respondents to assess the percentage of disability ofappellant by convening a Medical Board to find out whether thedisability percentage is 20% or less and discontinue the claim fromany future date if disability has gone below 20% – Service Law –Military Service.

Allowing the appeals, the Court

HELD: 1.1 Para 3 of the Government Order dated19.05.2017 provides that the extension of benefits to those officerswho retired Pre-2006 is on following conditions:-

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A(a) Their disability was accepted as attributable to or aggravatedby military service (b) They had foregone lump sum compensation in lieu of thatdisability B(c) The concerned Armed Forces Personnel should still besuffering from the same disability which should be assessedat 20% or more on the date of effect of this letter.[Para 8][675-E-F]

1.2 In the opinion of the Medical Board, PrimaryCHypertension of the appellant was aggravated by Army serviceand the reasons given are “due to stresses & strains of militaryservice”. It is clear that disability of the appellant was aggravatedby military service and percentage of disability was 30%. Para 5of the Order of the Government dated 19.05.2017 provides thatDclaim for grant of disability element in affected cases will besubmitted along-with copy of medical board/ fresh medical boardproceedings showing extent of disability applicable as on date ofeffect of this letter in respect of Commissioned officers/ JCOs/ORs. Para 7 of the order mentions that “The provisions of thisletter shall take effect from 01.01.2006.” Thus, the disability forEthe purposes of the order dated 19.05.2017 has to be looked intoon the date of 01.01.2006. This is also decipherable from Para 3of the order. [Paras 9, 11 and 12][675-G-H; 677-A-C]

1.3 The Release Medical Board on 31.03.2004 adjudicatedthe appellant’s disability at 30%, which disability was held to beFpermanent in nature. The appellant who appeared in person madea statement that he had not taken any lump sum compensation inlieu of disability. There is no reason not to accept his statement.The appellant thus fulfills all the three conditions for grant ofdisability pension. The appellant is fully covered by the order ofGthe Government dated 19.05.2017. Appropriate steps be takenin accordance with Para 5 for grant of disability pension. However,it shall always be open for the respondents to assess thepercentage of the disability of the appellant by convening a MedicalBoard to find out whether the disability percentage is 20% orless. It will be open to the respondents to discontinue the claimH

from any future date when they on the basis of any medical reportare of the view that the disability has gone below 20%. [Paras 13,14][677-D-F]

1.4 In so far as the case of “AGI Disability” as prayed bythe appellant before this Court, a perusal of the order of theTribunal rejecting the claim does not indicate that the said claimwas pressed before the Tribunal. In the Review Petition also,the appellant does not appear to have pressed the said claim.Thus, it is not necessary to consider the said claim in theseappeals. However, liberty is reserved to the appellant to file aReview Petition before the Tribunal, in event, the claim waspressed and not considered. [Para 15][677-G-H]

Union of India v. Ajay Wahi (2010) 11 SCC 213 :[2010] 7 SCR 777 ; Lt. Col. P.KKapur (Retd.) v. Unionof India [Decision of Armed Forces Tribunal, PrincipalBench, New Delhi in O.A. No. 139 of 2009] ;Maj. (Retd.) Rajesh Kumar Bhardwaj v. Union of India[Decision dated 07.02.2012 of Armed Forces Tribunal,Principal Bench, New Delhi in O.A. No. 336 of 2011]– referred to.

Case Law Reference

[2010] 7 SCR 777 referred toPara 1

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3101-3102 of 2015.

From the Judgment and Orders dated 20.09.2013/20.01.2014 inOriginal Application No. 25 of 2013/ Miscellaneous Application No. 65of 2013 in Original Application No. 25 of 2013 and final Order dated11.06.2014 in Review Application No. 4 of 2014 of the Armed ForcesTribunal Regional Bench at Mumbai.

Lt. Col. R. K. Rai, Petitioner-in-person.

Sanjai Kumar Pathak, Parnay Ranjan, Mukesh Kumar Maroria,Ms. Binu Tamta, Ms. Anjali Bora, Dhruv Tamta, Advs. for theRespondents.

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AThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. These two appeals have been filed bythe appellant challenging the orders dated 20.09.2013 passed by the ArmedForces Tribunal Regional Bench at Mumbai rejecting Petitioner’s O.A.No. 25 of 2013 and the order dated 11.06.2014 rejecting the ReviewBApplication No. 4 of 2014. The brief facts of the case are:

The appellant was commissioned in the Regiment of Artillery on24.12.1982. In the year 1987, while performing the duty of ObservationPost Officer, the appellant fell ill, who was treated in Military Hospital,Devlali. Medical Board was held on 21.01.1988, when he was placedCon low medical category. Medical Board opined that disability was dueto stress and strain of services. On 27.09.2000, the Medical Re-categorization Board assessed the appellant’s disability as 50%. In theyear 2002, appellant was posted at Zakhama in Nagaland. Medical Re-categorization Board held on 20.09.2002 again assessed the medicaldisability of the appellant as 50%. On 06.02.2003, appellant applied forDpremature retirement. Appellant was retired on 29.07.2003. ReleaseMedical Board held on 31.03.2004, found that the appellant was sufferingfrom primary Hypertension, aggravated due to stress and strain of militaryservice. Disability was assessed at 30%. The appellant filed O.A. No.25 of 2013 in the Armed Forces Tribunal, Regional Bench, Mumbai,Ewhere he prayed for following reliefs:- “Relief Sought In view of the facts mentioned in this Original Application, theApplicant most respectfully prays for the following reliefs:-

A. That the Hon’ble Court be pleased to direct Respondent No.1to forward medical disability pension claim to Respondent No.2directing the latter to grant medical disability pension to the Applicantat the earliest.

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B. That the Hon’ble Court be pleased to pass necessary directionto Respondent No.2 to release the medical disability pension inGrespect of the Applicant at the earliest.

C. That the Hon’ble Court be pleased to pass necessary directionto Respondent No.3 to grant “AGI Disability” as applicable to theApplicant at the earliest.

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D. That the Hon’ble Court be pleased to grant such other andfurther reliefs as deemed fit in the interest of justice.”

The Armed Forces Tribunal vide its judgment dated 20.09.2013rejected the application. The Tribunal relying on Regulation 48 andRegulation 50 of Pension Regulations for the Army, 1961 held that those,who took voluntary retirement are not entitled for disability pension. TheTribunal, however, noticed that on the basis of Sixth Pay CommissionReport, an officer, who seeks voluntary retirement on or after 01.01.2006and whose disability is 20% or more, either attributable to or aggravatedby military service, will be entitled to disability pension. However, thatbenefit cannot be granted to the Applicant, because he had taken voluntaryretirement much before the cut off date of 01.01.2006. The appellantfiled a Review Petition before the Tribunal relying on few judgments ofthis Court as well as judgments of Armed Forces Tribunal, PrincipalBench, 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 thejudgment of Principal Bench which held that the cut off date makingdifference between the personnel, who retired before 01.01.1996 andafter 01.01.1996, is discriminatory and arbitrary. The Tribunal relyingon the judgment of this Court in Union of India Vs. Ajay Wahi (2010)11 SCC 213 rejected the Review Petition. Aggrieved against dismissalof his O.A. as well as the Review Petition, the appellant has filed theseappeals.

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 aswell as learned counsel appearing for the respondent No.5.

3. The appellant appearing in person contends that in view of thejudgment 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 andjudgments of Armed Forces Tribunal, Regional Bench, Chandigarh aswell as judgment of Regional Bench, Chennai, those officers, who havetaken voluntary retirement even prior to 01.01.2006 have been grantedthe disability pension. He submits that the Principal Bench, New Delhiin O.A. No. 139 of 2009 has already struck down Para 2.1 of theGovernment Circular dated 04.05.2009. The appellant submits thatjudgment of Principal Bench, New Delhi in O.A. No. 336 of 2011, Maj.(Retd.) Rajesh Kumar Bhardwaj Vs. Union of India & Ors. dated A

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A07.02.2012 has been accepted by the Government of India and now anorder dated 19.05.2017 has been issued extending the benefit of disabilitypension to Armed Forces Personnel, who were retired, discharged fromservice even before 01.01.2006. He submits that in view of the orderdated 19.05.2017, the appellant is entitled for disability pension. Hefurther submits that in his original application, he has prayed for relief toBgrant “AGI Disability”, which has not been considered.

4. Learned counsel for the Union of India refuting the submissionof the appellant contends that against one of the judgments relied on bythe appellant of the Armed Forces Tribunal; S.L.P. is pending in thisCourt. He further submits that from the order dated 19.05.2017, it isCclear that the grant of disability pension to Pre-2006 retired/ dischargedArmed Forces Personnel is subject to conditions as laid down in Para 3and the appellant does not fulfil the conditions mentioned therein.

5. Learned counsel for the respondent No.5 submits that no noticewas served to respondent No. 5 before the Armed Forces Tribunal inDO.A. No. 25 of 2013, hence no one could appear on behalf of therespondent No.5 and file the objection. It is submitted on behalf ofrespondent No.5 that there is no material available with regard to theclaim of the appellant on “AGI Disability”. He submits that the order ofthe Tribunal does not even indicate that the AGI Disability claim was notEeven argued before the Tribunal. It was submitted by learned counselfor respondent No.5 that the appellant is not entitled for any “AGIDisability” and under the Army Group Insurance, fund whatever wasdue to the appellant has already been paid.

6. We have considered the submissions of the appellant and theFlearned counsel appearing for the Union of India as well as respondentNo.5 and have perused the records.

7. A copy of the order dated 19.05.2017 issued by the Governmentof India, Ministry of Defence has been submitted by the appellant to theCourt, a copy of which has also been given to the learned counsel forGthe respondents. The Government of India, Ministry of Defence havingaccepted the claim of those officers, who took voluntary retirement priorto 01.01.2006, the claim of the appellant needs to be examined in viewof the aforesaid order. It is useful to extract the entire GovernmentOrder dated 19.05.2017, which is to the following effect:- H

“No. 16(05)/2008/D(Pension/Policy) Government of India Ministry of DefenceDepartment of Ex-Servicemen Welfare New Delhi-110011

Dated 19th May 2017

To,

The Chief of the Army StaffThe Chief of the Naval StaffThe Chief of the Air Staff Subject: Grant of Disability Element to Armed ForcesPersonnel who were retained in service despite disabilityattributable to or aggravated by Military Service andsubsequently proceeded on premature/voluntaryretirement prior to 01.01.2006.

Sir,

The undersigned is directed to refer to this Ministry’s letterNo.16(5)/2008/ D(pen/Policy) dated 29th September 2009 whereindisability element/war injury element have been allowed to suchArmed Forces Personnel who were retained in service despitedisability and retired/discharged voluntary or otherwise in additionto retiring/ service pension or retiring/ service gratuity, subject tocondition that their disability was accepted as attributable to oraggravated by military service and had foregone lump sumcompensation in lieu of that disability.

2. In terms of Para- 3 of the above referred letter the provisionsstated above are applicable to the Armed Forces Personnel whowere, 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 downPara-3 of this Ministry’s above letter.

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3. The issue of extension of above benefit to the Pre-2006 retired/discharged Armed Forces Personnel, who were retained in servicedespite disability attributable to or aggravated by military service,was under active consideration of Government. Now, the Presidentis pleased to decide that all Pre- 2006 Armed Forces Personnelwho were retained in service despite disability and retiredvoluntarily or otherwise will be allowed disability element/war injuryelement in addition to retiring/ service pension or retiring/ servicegratuity, subject to the condition that their disability was acceptedas attributable to or aggravated by military service and hadforegone lump sum compensation in lieu of that disability. Further,concerned Armed Forces Personnel should still be suffering fromthe same disability which should be assessed at 20% or more onthe date of effect of this letter.

4. Implementation of these orders is expected to be arduous andchallenging. Documents like Medical Board proceedings, retentionof the personnel in service despite disability, option of individualforegoing lump sum compensation and non-payment of lump sumcompensation would be required in all cases which may not beavailable at the end of Pay Accounting Authorities/ Record officesand Pension sanctioning authorities readily. In such cases,pensioners/ family pensioners may be asked to produce the copiesof relevant documents to the Executive authorities in support oftheir claims.

5. The claim for grant of disability element/ war injury element inaffected cases will be submitted to the PSA concerned byPCDA(O) Pune/ NPO/AFCAO/ Record office along-with copyof medical board/ fresh medical board proceedings showing extentof disability applicable as on date of effect of this letter in respectof Commissioned officers/ JCOs/ ORs. It win be responsibility ofPCDA(O) Pune/ NPO/ AFCAO and Record office to confirmpayment/ non- payment of lump sum-compensation in lieu ofdisability element to Commissioned officers and JCOs/ ORs. Asanction 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 theService HQrs in case of Commissioned Officers and sanctionwould be issued by IO/ C Record office in case of JCOs/ ORs.

6. The corrigendum PPOs granting disability element/ war injuryelement in all affected cases will be issued by respective PensionSanctioning 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 indue course.

9. This Issues with the concurrence of Finance Division of thisMinistry their letter I.D. No. 10(3)2012/FIN/PEN dated 19th May2017.

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 ofbenefits to Pre-2006 retired is on following conditions:- (a) Their disability was accepted as attributable to or aggravatedby military service (b) They had foregone lump sum compensation in lieu of thatdisability.

(c) The concerned Armed Forces Personnel should still besuffering from the same disability which should be assessedat 20% or more on the date of effect of this letter.

9. The appellant has relied on the Release Medical Boardproceeding dated 31.03.2004 which has been brought on record asAnnexure A/14. A perusal of the opinion of the Medical Board ascontained in Part 5 of the document, makes it clear that opinion of theMedical Board is that Primary Hypertension of the appellant is aggravatedby Army service and the reasons given are that “due to stresses &strains of military service”. It is useful to extract opinion of MedicalBoard in Part V, which is to the following effect:- A

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APart VOPINIONS OF THE MEDICAL BOARD(Not to be communicated to the individual)

1. Clinical relationship of the disability with service condition or otherwise B

DisabilityAttributable Aggravated Not Reason/ to service By Service connected case (Y/N) (Y/N) with specific service conditions (Y/N) and period in service C(a) Primary No YES No Due to HYPERTENSION stresses & strains of mil service. D

10. Another part of the same opinion of Medical Board, which iswith regard to percentage of disablement, is to the following effect:-

1. What is percent degree of disablement as compared Ewith 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 Percentage Probable Composite for all assessment of disablement duration of this duration (Max F(As numbered degree of 100%) in disabilities disablement with Question 1 part II (a) Primary 30% Permanent 30% G(b) (c) (d) Sd/-x x x x Sd/- x x x x MANOJ (Ms. Vandana Negi) PAPRIKAR Lt. Col. Maj. H

11. From the above, it is clear that disability of the appellant wasaggravated by military service and percentage of disability was 30%.Para 5 of the Order of the Government dated 19.05.2017 provides thatclaim for grant of disability element in affected cases will be submittedto the PSA concerned by PCDA(O) Pune/ NPO/AFCAO/ Record officealong-with copy of medical board/ fresh medical board proceedingsshowing extent of disability applicable as on date of effect of this letterin respect of Commissioned officers/ JCOs/ ORs. Para 7 of the ordermentions that “The provisions of this letter shall take effect from01.01.2006.”

12. Thus, the disability for the purposes of the order dated19.05.2017 has to be looked into on the date of 01.01.2006. The saidconclusion 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%, whichdisability has been held to be permanent in nature. The appellant whoappears in person makes a statement that he has not taken any lumpsum compensation in lieu of disability. We have no reason not to accepthis statement.

14. The appellant thus fulfils all the three conditions for grant ofdisability pension. In above view of the matter, we are of the view thatappellant is fully covered by the order of the Government dated19.05.2017. Appropriate steps be taken in accordance with Para 5 forgrant of disability pension. We, however, make it clear that it shall alwaysbe open for the respondents to assess the percentage of the disability ofthe appellant by convening a Medical Board to find out whether thedisability percentage is 20% or less. It will be open to the respondentsto discontinue the claim from any future date when they on the basis ofany medical report are of the view that the disability has gone below20%.

15. In so far as the case of “AGI Disability” as prayed by theappellant before us, a perusal of the order of the Tribunal rejecting theclaim does not indicate that the said claim was pressed before theTribunal. In the Review Petition also, the appellant does not appear tohave pressed the said claim. We, thus, do not find it necessary to considerthe said claim in these appeals. However, liberty is reserved to theappellant to file a Review Petition before the Tribunal, in event, the claimwas pressed and not considered.

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678SUPREME COURT REPORTS

[2018] 2 S.C.R.

A16. In result, the civil appeals are allowed. Judgment and order ofthe Tribunal dated 20.09.2013 and 11.06.2014 are set aside. Therespondents are directed to process the claim of the appellant as per theGovernment order dated 19.05.2017 in light of the observations as madeabove.

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Appeals allowed.

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