1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3101-3102 OF 2015
EX. LT. COL. R.K. RAI …APPELLANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
These two appeals have been filed by the appellant
challenging the orders dated 20.09.2013 passed by the
Armed Forces Tribunal Regional Bench at Mumbai rejecting
Petitioner’s O.A. No. 25 of 2013 and the order dated
11.06.2014 rejecting the Review Application No. 4 of
2014. The brief facts of the case are:
The appellant was commissioned in the Regiment of
Artillery on 24.12.1982. In the year 1987, while
2
performing the duty of Observation Post Officer, the
appellant fell ill, who was treated in Military
Hospital, Devlali. Medical Board was held on
21.01.1988, when he was placed on low medical
category. Medical Board opined that disability was due
to stress and strain of services. On 27.09.2000, the
Medical Re-categorization Board assessed the
appellant’s disability as 50%. In the year 2002,
appellant was posted at Zakhama in Nagaland. Medical
Re-categorization Board held on 20.09.2002 again
assessed the medical disability of the appellant as
50%. On 06.02.2003, appellant applied for premature
retirement. Appellant was retired on 29.07.2003.
Release Medical Board held on 31.03.2004, found that
the appellant was suffering from primary Hypertension,
aggravated due to stress and strain of military
service. Disability was assessed at 30%. The
appellant filed O.A. No. 25 of 2013 in the Armed
Forces Tribunal, Regional Bench, Mumbai, where he
prayed for following reliefs:-
“Relief Sought
In view of the facts mentioned in this
Original Application, the Applicant most
3
respectfully prays for the following reliefs:-
A. That the Hon’ble Court be pleased to
direct Respondent No.1 to forward medical
disability pension claim to Respondent
No.2 directing the latter to grant medical
disability pension to the Applicant at the
earliest.
B. That the Hon’ble Court be pleased to pass
necessary direction to Respondent No.2 to
release the medical disability pension in
respect of the Applicant at the earliest.
C. That the Hon’ble Court be pleased to pass
necessary direction to Respondent No.3 to
grant “AGI Disability” as applicable to
the Applicant at the earliest.
D. That the Hon’ble Court be pleased to grant
such other and further reliefs as deemed
fit in the interest of justice.”
The Armed Forces Tribunal vide its judgment dated
20.09.2013 rejected the application. The Tribunal
relying on Regulation 48 and Regulation 50 of Pension
Regulations for the Army, 1961 held that those, who
took voluntary retirement are not entitled for
disability pension. The Tribunal, however, noticed
that on the basis of Sixth Pay Commission Report, an
officer, who seeks voluntary retirement on or after
01.01.2006 and whose disability is 20% or more, either
attributable to or aggravated by military service,
4
will be entitled to disability pension. However, that
benefit cannot be granted to the Applicant, because he
had taken voluntary retirement much before the cut off
date of 01.01.2006. The appellant filed a Review
Petition before the Tribunal relying on few judgments
of this Court as well as judgments 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. In the Review Petition, the petitioner relied
on the judgment of Principal Bench which held that the
cut off date making difference between the personnel,
who retired before 01.01.1996 and after 01.01.1996, is
discriminatory and arbitrary. The Tribunal relying on
the judgment of this Court in Union of India Vs. Ajay
Wahi (2010) 11 SCC 213 rejected the Review Petition.
Aggrieved against dismissal of his O.A. as well as the
Review Petition, the appellant has filed these
appeals.
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 as well as learned counsel
appearing for the respondent No.5.
5
3. The appellant appearing in person contends that in
view of the judgment 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 and
judgments of Armed Forces Tribunal, Regional Bench,
Chandigarh as well as judgment of Regional Bench,
Chennai, those officers, who have taken voluntary
retirement even prior to 01.01.2006 have been granted
the disability pension. He submits that the
Principal Bench, New Delhi in O.A. No. 139 of 2009
has already struck down Para 2.1 of the Government
Circular dated 04.05.2009. The appellant submits
that judgment of Principal Bench, New Delhi in O.A.
No. 336 of 2011, Maj. (Retd.) Rajesh Kumar Bhardwaj
Vs. Union of India & Ors. dated 07.02.2012 has been
accepted by the Government of India and now an order
dated 19.05.2017 has been issued extending the
benefit of disability pension to Armed Forces
Personnel, who were retired, discharged from service
even before 01.01.2006. He submits that in view of
the order dated 19.05.2017, the appellant is entitled
for disability pension. He further submits that in
6
his original application, he has prayed for relief to
grant “AGI Disability”, which has not been
considered.
4. Learned counsel for the Union of India refuting the
submission of the appellant contends that against one
of the judgments relied on by the appellant of the
Armed Forces Tribunal; S.L.P. is pending in this
Court. He further submits that from the order dated
19.05.2017, it is clear that the grant of disability
pension to Pre-2006 retired/ discharged Armed Forces
Personnel is subject to conditions as laid down in
Para 3 and the appellant does not fulfil the
conditions mentioned therein.
5. Learned counsel for the respondent No.5 submits that
no notice was served to respondent No. 5 before the
Armed Forces Tribunal in O.A. No. 25 of 2013, hence
no one could appear on behalf of the respondent No.5
and file the objection. It is submitted on behalf of
respondent No.5 that there is no material available
with regard to the claim of the appellant on “AGI
Disability”. He submits that the order of the
Tribunal does not even indicate that the AGI
7
Disability claim was not even argued before the
Tribunal. It was submitted by learned counsel for
respondent No.5 that the appellant is not entitled
for any “AGI Disability” and under the Army Group
Insurance, fund whatever was due to the appellant has
already been paid.
6. We have considered the submissions of the appellant
and the learned counsel appearing for the Union of
India as well as respondent No.5 and have perused the
records.
7. A copy of the order dated 19.05.2017 issued by the
Government of India, Ministry of Defence has been
submitted by the appellant to the Court, a copy of
which has also been given to the learned counsel for
the respondents. The Government of India, Ministry of
Defence having accepted the claim of those officers,
who took voluntary retirement prior to 01.01.2006,
the claim of the appellant needs to be examined in
view of the aforesaid order. It is useful to extract
the entire Government Order dated 19.05.2017, which
is to the following effect:-
8
“No. 16(05)/2008/D(Pension/Policy)
Government of India
Ministry of Defence
Department of Ex-Servicemen Welfare
New Delhi-110011
Dated 19th May 2017
To,
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Subject: Grant of Disability Element to Armed
Forces Personnel who were retained in service
despite disability attributable to or aggravated
by Military Service and subsequently proceeded on
premature/voluntary retirement prior to
01.01.2006.
Sir,
The undersigned is directed to refer to this
Ministry's letter No.16(5)/2008/ D(pen/Policy)
dated 29th September 2009 wherein disability
element/war injury element have been allowed to
such Armed Forces Personnel who were retained in
service despite disability and retired/discharged
voluntary or otherwise in addition to retiring/
service pension or retiring/ service gratuity,
subject to condition that their disability was
accepted as attributable to or aggravated by
military service and had foregone lump sum
compensation in lieu of that disability.
2. In terms of Para- 3 of the above referred
letter the provisions stated above are applicable
to the Armed Forces Personnel who were,
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 down
Para-3 of this Ministry's above letter.
3. The issue of extension of above benefit to the
Pre-2006 retired/discharged Armed Forces
Personnel, who were retained in service despite
9
disability attributable to or aggravated by
military service, was under active consideration
of Government. Now, the President is pleased to
decide that all Pre- 2006 Armed Forces Personnel
who were retained in service despite disability
and retired voluntarily or otherwise will be
allowed disability element/war injury element in
addition to retiring/ service pension or
retiring/ service gratuity, subject to the
condition that their disability was accepted as
attributable to or aggravated by military service
and had foregone lump sum compensation in lieu of
that disability. Further, concerned Armed Forces
Personnel should still be suffering from the same
disability which should be assessed at 20% or
more on the date of effect of this letter.
4. Implementation of these orders is expected to
be arduous and challenging. Documents like
Medical Board proceedings, retention of the
personnel in service despite disability, option
of individual foregoing lump sum compensation and
non-payment of lump sum compensation would be
required in all cases which may not be available
at the end of Pay Accounting Authorities/ Record
offices and Pension sanctioning authorities
readily. In such cases, pensioners/ family
pensioners may be asked to produce the copies of
relevant documents to the Executive authorities
in support of their claims.
5. The claim for grant of disability element/ war
injury element in affected cases will be
submitted to the PSA concerned by PCDA(O) Pune/
NPO/AFCAO/ Record office along-with copy of
medical board/ fresh medical board proceedings
showing extent of disability applicable as on
date of effect of this letter in respect of
Commissioned officers/ JCOs/ ORs. It win be
responsibility of PCDA(O) Pune/ NPO/ AFCAO and
Record office to confirm payment/ non- payment of
lump sum-compensation in lieu of disability
element to Commissioned officers and JCOs/ ORs. A
sanction 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 the Service HQrs in case of
10
Commissioned Officers and sanction would be
issued by IO/ C Record office in case of JCOs/
ORs.
6. The corrigendum PPOs granting disability
element/ war injury element in all affected cases
will be issued by respective Pension Sanctioning
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 in due course.
9. This Issues with the concurrence of Finance
Division of this Ministry their letter I.D. No.
10(3)2012/FIN/PEN dated 19th May 2017.
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 of benefits to Pre-2006 retired is on
following conditions:-
(a) Their disability was accepted as
attributable to or aggravated by military
service
(b) They had foregone lump sum compensation in
lieu of that disability.
(c) The concerned Armed Forces Personnel
should still be suffering from the same
disability which should be assessed at 20%
or more on the date of effect of this
letter.
11
9. The appellant has relied on the Release Medical Board
proceeding dated 31.03.2004 which has been brought on
record as Annexure A/14. A perusal of the opinion of
the Medical Board as contained in Part 5 of the
document, makes it clear that opinion of the Medical
Board is that Primary Hypertension of the appellant
is aggravated by Army service and the reasons given
are that “due to stresses & strains of military
service”. It is useful to extract opinion of Medical
Board in Part V, which is to the following effect:-
Part V
OPINIONS OF THE MEDICAL BOARD
(Not to be communicated to the individual)
1. Clinical relationship of the disability with service
condition or otherwise
Disability Attributab
le to
service
(Y/N)
Aggravated
By Service
(Y/N)
Not
connected
with
service
(Y/N)
Reason/
case
specific
conditions
and period
in service
(a)
Primary
HYPERTENSI
ON
No YES No Due to
stresses &
strains of
mil
service.
10.Another part of the same opinion of Medical Board,
which is with regard to percentage of disablement, is
12
to the following effect:-
1. What is percent degree of disablement as compared
with 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
assessment
(As numbered
in
disabilities
with Question
1 part II
Percentage of
disablement
Probable
duration of
this degree
of
disablement
Composite for
all duration
(Max 100%)
(a) Primary 30% Permanent 30%
(b)
(c)
(d) Sd/-x x x x
MANOJ
PAPRIKAR
Maj.
Sd/- x x x x
(Ms. Vandana
Negi)
Lt. Col.
11.From the above, it is clear that disability of the
appellant was aggravated by military service and
percentage of disability was 30%. Para 5 of the
Order of the Government dated 19.05.2017 provides
that claim for grant of disability element in
affected cases will be submitted to the PSA concerned
by PCDA(O) Pune/ NPO/AFCAO/ Record office along-with
copy of medical board/ fresh medical board
proceedings showing extent of disability applicable
as on date of effect of this letter in respect of
13
Commissioned officers/ JCOs/ ORs. Para 7 of the
order mentions that “The provisions of this letter
shall take effect from 01.01.2006.”
12.Thus, the disability for the purposes of the order
dated 19.05.2017 has to be looked into on the date of
01.01.2006. The said conclusion 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%, which disability has been held to
be permanent in nature. The appellant who appears in
person makes a statement that he has not taken any
lump sum compensation in lieu of disability. We have
no reason not to accept his statement.
14. The appellant thus fulfils all the three conditions
for grant of disability pension. In above view of
the matter, we are of the view that appellant is
fully covered by the order of the Government dated
19.05.2017. Appropriate steps be taken in accordance
with Para 5 for grant of disability pension. We,
however, make it clear that it shall always be open
14
for the respondents to assess the percentage of the
disability of the appellant by convening a Medical
Board to find out whether the disability percentage
is 20% or less. It will be open to the respondents
to discontinue the claim from any future date when
they on the basis of any medical report are of the
view that the disability has gone below 20%.
15.In so far as the case of “AGI Disability” as prayed
by the appellant before us, a perusal of the order of
the Tribunal rejecting the claim does not indicate
that the said claim was pressed before the Tribunal.
In the Review Petition also, the appellant does not
appear to have pressed the said claim. We, thus, do
not find it necessary to consider the said claim in
these appeals. However, liberty is reserved to the
appellant to file a Review Petition before the
Tribunal, in event, the claim was pressed and not
considered.
16.In result, the civil appeals are allowed. Judgment
and order of the Tribunal dated 20.09.2013 and
11.06.2014 are set aside. The respondents are
directed to process the claim of the appellant as per
15
the Government order dated 19.05.2017 in light of the
observations as made above.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 16, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3101-3102 OF 2015
EX. LT. COL. R.K. RAI …APPELLANT
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
These two appeals have been filed by the appellant
challenging the orders dated 20.09.2013 passed by the
Armed Forces Tribunal Regional Bench at Mumbai rejecting
Petitioner’s O.A. No. 25 of 2013 and the order dated
11.06.2014 rejecting the Review Application No. 4 of
2014. The brief facts of the case are:
The appellant was commissioned in the Regiment of
Artillery on 24.12.1982. In the year 1987, while
2
performing the duty of Observation Post Officer, the
appellant fell ill, who was treated in Military
Hospital, Devlali. Medical Board was held on
21.01.1988, when he was placed on low medical
category. Medical Board opined that disability was due
to stress and strain of services. On 27.09.2000, the
Medical Re-categorization Board assessed the
appellant’s disability as 50%. In the year 2002,
appellant was posted at Zakhama in Nagaland. Medical
Re-categorization Board held on 20.09.2002 again
assessed the medical disability of the appellant as
50%. On 06.02.2003, appellant applied for premature
retirement. Appellant was retired on 29.07.2003.
Release Medical Board held on 31.03.2004, found that
the appellant was suffering from primary Hypertension,
aggravated due to stress and strain of military
service. Disability was assessed at 30%. The
appellant filed O.A. No. 25 of 2013 in the Armed
Forces Tribunal, Regional Bench, Mumbai, where he
prayed for following reliefs:-
“Relief Sought
In view of the facts mentioned in this
Original Application, the Applicant most
3
respectfully prays for the following reliefs:-
A. That the Hon’ble Court be pleased to
direct Respondent No.1 to forward medical
disability pension claim to Respondent
No.2 directing the latter to grant medical
disability pension to the Applicant at the
earliest.
B. That the Hon’ble Court be pleased to pass
necessary direction to Respondent No.2 to
release the medical disability pension in
respect of the Applicant at the earliest.
C. That the Hon’ble Court be pleased to pass
necessary direction to Respondent No.3 to
grant “AGI Disability” as applicable to
the Applicant at the earliest.
D. That the Hon’ble Court be pleased to grant
such other and further reliefs as deemed
fit in the interest of justice.”
The Armed Forces Tribunal vide its judgment dated
20.09.2013 rejected the application. The Tribunal
relying on Regulation 48 and Regulation 50 of Pension
Regulations for the Army, 1961 held that those, who
took voluntary retirement are not entitled for
disability pension. The Tribunal, however, noticed
that on the basis of Sixth Pay Commission Report, an
officer, who seeks voluntary retirement on or after
01.01.2006 and whose disability is 20% or more, either
attributable to or aggravated by military service,
4
will be entitled to disability pension. However, that
benefit cannot be granted to the Applicant, because he
had taken voluntary retirement much before the cut off
date of 01.01.2006. The appellant filed a Review
Petition before the Tribunal relying on few judgments
of this Court as well as judgments 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. In the Review Petition, the petitioner relied
on the judgment of Principal Bench which held that the
cut off date making difference between the personnel,
who retired before 01.01.1996 and after 01.01.1996, is
discriminatory and arbitrary. The Tribunal relying on
the judgment of this Court in Union of India Vs. Ajay
Wahi (2010) 11 SCC 213 rejected the Review Petition.
Aggrieved against dismissal of his O.A. as well as the
Review Petition, the appellant has filed these
appeals.
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 as well as learned counsel
appearing for the respondent No.5.
5
3. The appellant appearing in person contends that in
view of the judgment 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 and
judgments of Armed Forces Tribunal, Regional Bench,
Chandigarh as well as judgment of Regional Bench,
Chennai, those officers, who have taken voluntary
retirement even prior to 01.01.2006 have been granted
the disability pension. He submits that the
Principal Bench, New Delhi in O.A. No. 139 of 2009
has already struck down Para 2.1 of the Government
Circular dated 04.05.2009. The appellant submits
that judgment of Principal Bench, New Delhi in O.A.
No. 336 of 2011, Maj. (Retd.) Rajesh Kumar Bhardwaj
Vs. Union of India & Ors. dated 07.02.2012 has been
accepted by the Government of India and now an order
dated 19.05.2017 has been issued extending the
benefit of disability pension to Armed Forces
Personnel, who were retired, discharged from service
even before 01.01.2006. He submits that in view of
the order dated 19.05.2017, the appellant is entitled
for disability pension. He further submits that in
6
his original application, he has prayed for relief to
grant “AGI Disability”, which has not been
considered.
4. Learned counsel for the Union of India refuting the
submission of the appellant contends that against one
of the judgments relied on by the appellant of the
Armed Forces Tribunal; S.L.P. is pending in this
Court. He further submits that from the order dated
19.05.2017, it is clear that the grant of disability
pension to Pre-2006 retired/ discharged Armed Forces
Personnel is subject to conditions as laid down in
Para 3 and the appellant does not fulfil the
conditions mentioned therein.
5. Learned counsel for the respondent No.5 submits that
no notice was served to respondent No. 5 before the
Armed Forces Tribunal in O.A. No. 25 of 2013, hence
no one could appear on behalf of the respondent No.5
and file the objection. It is submitted on behalf of
respondent No.5 that there is no material available
with regard to the claim of the appellant on “AGI
Disability”. He submits that the order of the
Tribunal does not even indicate that the AGI
7
Disability claim was not even argued before the
Tribunal. It was submitted by learned counsel for
respondent No.5 that the appellant is not entitled
for any “AGI Disability” and under the Army Group
Insurance, fund whatever was due to the appellant has
already been paid.
6. We have considered the submissions of the appellant
and the learned counsel appearing for the Union of
India as well as respondent No.5 and have perused the
records.
7. A copy of the order dated 19.05.2017 issued by the
Government of India, Ministry of Defence has been
submitted by the appellant to the Court, a copy of
which has also been given to the learned counsel for
the respondents. The Government of India, Ministry of
Defence having accepted the claim of those officers,
who took voluntary retirement prior to 01.01.2006,
the claim of the appellant needs to be examined in
view of the aforesaid order. It is useful to extract
the entire Government Order dated 19.05.2017, which
is to the following effect:-
8
“No. 16(05)/2008/D(Pension/Policy)
Government of India
Ministry of Defence
Department of Ex-Servicemen Welfare
New Delhi-110011
Dated 19th May 2017
To,
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Subject: Grant of Disability Element to Armed
Forces Personnel who were retained in service
despite disability attributable to or aggravated
by Military Service and subsequently proceeded on
premature/voluntary retirement prior to
01.01.2006.
Sir,
The undersigned is directed to refer to this
Ministry's letter No.16(5)/2008/ D(pen/Policy)
dated 29th September 2009 wherein disability
element/war injury element have been allowed to
such Armed Forces Personnel who were retained in
service despite disability and retired/discharged
voluntary or otherwise in addition to retiring/
service pension or retiring/ service gratuity,
subject to condition that their disability was
accepted as attributable to or aggravated by
military service and had foregone lump sum
compensation in lieu of that disability.
2. In terms of Para- 3 of the above referred
letter the provisions stated above are applicable
to the Armed Forces Personnel who were,
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 down
Para-3 of this Ministry's above letter.
3. The issue of extension of above benefit to the
Pre-2006 retired/discharged Armed Forces
Personnel, who were retained in service despite
9
disability attributable to or aggravated by
military service, was under active consideration
of Government. Now, the President is pleased to
decide that all Pre- 2006 Armed Forces Personnel
who were retained in service despite disability
and retired voluntarily or otherwise will be
allowed disability element/war injury element in
addition to retiring/ service pension or
retiring/ service gratuity, subject to the
condition that their disability was accepted as
attributable to or aggravated by military service
and had foregone lump sum compensation in lieu of
that disability. Further, concerned Armed Forces
Personnel should still be suffering from the same
disability which should be assessed at 20% or
more on the date of effect of this letter.
4. Implementation of these orders is expected to
be arduous and challenging. Documents like
Medical Board proceedings, retention of the
personnel in service despite disability, option
of individual foregoing lump sum compensation and
non-payment of lump sum compensation would be
required in all cases which may not be available
at the end of Pay Accounting Authorities/ Record
offices and Pension sanctioning authorities
readily. In such cases, pensioners/ family
pensioners may be asked to produce the copies of
relevant documents to the Executive authorities
in support of their claims.
5. The claim for grant of disability element/ war
injury element in affected cases will be
submitted to the PSA concerned by PCDA(O) Pune/
NPO/AFCAO/ Record office along-with copy of
medical board/ fresh medical board proceedings
showing extent of disability applicable as on
date of effect of this letter in respect of
Commissioned officers/ JCOs/ ORs. It win be
responsibility of PCDA(O) Pune/ NPO/ AFCAO and
Record office to confirm payment/ non- payment of
lump sum-compensation in lieu of disability
element to Commissioned officers and JCOs/ ORs. A
sanction 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 the Service HQrs in case of
10
Commissioned Officers and sanction would be
issued by IO/ C Record office in case of JCOs/
ORs.
6. The corrigendum PPOs granting disability
element/ war injury element in all affected cases
will be issued by respective Pension Sanctioning
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 in due course.
9. This Issues with the concurrence of Finance
Division of this Ministry their letter I.D. No.
10(3)2012/FIN/PEN dated 19th May 2017.
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 of benefits to Pre-2006 retired is on
following conditions:-
(a) Their disability was accepted as
attributable to or aggravated by military
service
(b) They had foregone lump sum compensation in
lieu of that disability.
(c) The concerned Armed Forces Personnel
should still be suffering from the same
disability which should be assessed at 20%
or more on the date of effect of this
letter.
11
9. The appellant has relied on the Release Medical Board
proceeding dated 31.03.2004 which has been brought on
record as Annexure A/14. A perusal of the opinion of
the Medical Board as contained in Part 5 of the
document, makes it clear that opinion of the Medical
Board is that Primary Hypertension of the appellant
is aggravated by Army service and the reasons given
are that “due to stresses & strains of military
service”. It is useful to extract opinion of Medical
Board in Part V, which is to the following effect:-
Part V
OPINIONS OF THE MEDICAL BOARD
(Not to be communicated to the individual)
1. Clinical relationship of the disability with service
condition or otherwise
Disability Attributab
le to
service
(Y/N)
Aggravated
By Service
(Y/N)
Not
connected
with
service
(Y/N)
Reason/
case
specific
conditions
and period
in service
(a)
Primary
HYPERTENSI
ON
No YES No Due to
stresses &
strains of
mil
service.
10.Another part of the same opinion of Medical Board,
which is with regard to percentage of disablement, is
12
to the following effect:-
1. What is percent degree of disablement as compared
with 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
assessment
(As numbered
in
disabilities
with Question
1 part II
Percentage of
disablement
Probable
duration of
this degree
of
disablement
Composite for
all duration
(Max 100%)
(a) Primary 30% Permanent 30%
(b)
(c)
(d) Sd/-x x x x
MANOJ
PAPRIKAR
Maj.
Sd/- x x x x
(Ms. Vandana
Negi)
Lt. Col.
11.From the above, it is clear that disability of the
appellant was aggravated by military service and
percentage of disability was 30%. Para 5 of the
Order of the Government dated 19.05.2017 provides
that claim for grant of disability element in
affected cases will be submitted to the PSA concerned
by PCDA(O) Pune/ NPO/AFCAO/ Record office along-with
copy of medical board/ fresh medical board
proceedings showing extent of disability applicable
as on date of effect of this letter in respect of
13
Commissioned officers/ JCOs/ ORs. Para 7 of the
order mentions that “The provisions of this letter
shall take effect from 01.01.2006.”
12.Thus, the disability for the purposes of the order
dated 19.05.2017 has to be looked into on the date of
01.01.2006. The said conclusion 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%, which disability has been held to
be permanent in nature. The appellant who appears in
person makes a statement that he has not taken any
lump sum compensation in lieu of disability. We have
no reason not to accept his statement.
14. The appellant thus fulfils all the three conditions
for grant of disability pension. In above view of
the matter, we are of the view that appellant is
fully covered by the order of the Government dated
19.05.2017. Appropriate steps be taken in accordance
with Para 5 for grant of disability pension. We,
however, make it clear that it shall always be open
14
for the respondents to assess the percentage of the
disability of the appellant by convening a Medical
Board to find out whether the disability percentage
is 20% or less. It will be open to the respondents
to discontinue the claim from any future date when
they on the basis of any medical report are of the
view that the disability has gone below 20%.
15.In so far as the case of “AGI Disability” as prayed
by the appellant before us, a perusal of the order of
the Tribunal rejecting the claim does not indicate
that the said claim was pressed before the Tribunal.
In the Review Petition also, the appellant does not
appear to have pressed the said claim. We, thus, do
not find it necessary to consider the said claim in
these appeals. However, liberty is reserved to the
appellant to file a Review Petition before the
Tribunal, in event, the claim was pressed and not
considered.
16.In result, the civil appeals are allowed. Judgment
and order of the Tribunal dated 20.09.2013 and
11.06.2014 are set aside. The respondents are
directed to process the claim of the appellant as per
15
the Government order dated 19.05.2017 in light of the
observations as made above.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
FEBRUARY 16, 2018.
