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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

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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

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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,

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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.

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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

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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

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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:-

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“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

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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

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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.

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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

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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

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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

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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

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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.