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REPORTABLE   IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10870 OF 2018     

UNION OF INDIA & ORS. .. Appellant (s)                         Versus

WING COMMANDER S.P.RATHORE  ..  Respondent(s)

J U D G M E N T

DEEPAK GUPTA, J.

1. The short question involved in this appeal filed by

the Union of India is whether disability pension is at all

payable in case of a Air Force Officer who superannuated

from service in the natural course and whose disability is

less than 20%.

2. We  may  make  reference  to  the  Defence  Service

Regulations Pension 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  account  of  a  disability  which  is attributable to or aggravated by such service and is assessed at 20 percent or over may, on retirement  be  awarded  disability  pension consisting of a service element and a disability element in accordance with the regulations in this section.

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(b) The  question  whether  a  disability  is attributable  to  or  aggravated  by  air  force service  shall  be  determined  under  the regulations in Appendix II.”

3. A bare reading of the aforesaid provision makes it

clear  that  an  officer  of  the  Air  Force  who  retires  on

attaining  the  age  of  superannuation  is  entitled  to

disability pension only if disability is assessed at 20% or

above.  Furthermore, this disability must be attributable

or aggravated by service rendered in the Air Force.   

4. So far as the second part is concerned, we are not

going into that issue since in this case, it is admitted

that the  disability was aggravated due to service rendered

in the Air Force.  The only issue is whether the Appellant

not having 20% disability is at all entitled to disability

pension.

5. Both learned senior counsel appearing for the Union of

India and learned counsel appearing for the Respondent rely

upon Paras 7.2 and 8.2 of Circular dated 31.1.2001 issued

by Ministry of Defence which read as follows :

“7.2 Where an Armed Forced personnel is invalided out  under  circumstances  mentioned  in  Para  4.1 above,  the  extent  of  disability  or  functional incapacity shall be determined in the following manner  for  the  purposes  of  computing  the disability element:-

Percentage of disability as assessed by invaliding

medical board

Percentage to be reckoned for computing of disability

element Less than 50 50

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Between 50 and 75 75 Between 76 and 100 100

“8.2 For disabilities less than 100% but not less than 20% the above rates shall be proportionately reduced. No disability element shall be payable for  disabilities  less  than  20%.  Provisions contained  in  Para  7.2  above  shall  not  be applicable  for  computing  disability  element. Disability actually assessed by the duly approved Release Medical Board/Invaliding Medical Board as accepted by  the Pension  Sanctioning Authority, shall reckon for computing disability element.”

6. Para 8.2 falls under the heading of Disability Element

on Disability/Discharge.  A bare reading of Para 8.2  shows

that  where the disability is more than 20% but less than

80%, the rates prescribed earlier would be proportionately

reduced.    Again, it is made clear that no disability

element shall be payable for disabilities less than 20%.

Para 8.2 also provides that the provisions contained in

Para 7.2 shall not be applicable for computing disability

element in such cases.  Para 7.2 which deals with officials

of Armed Forces invalided out under circumstances mentioned

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 to 50%.  If the disability was

between 50 and 75% it would be rounded off to 75%.  If the

disability was between 76 and 100% it would be rounded off

to 100%.   

7. Reliance has been placed by the learned counsel for

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the Respondent on the Order dated 10.12.2014 of this Court

in “Union of India and Ors. Versus Ram Avtar” (Civil Appeal

No.418 of 2012 etc.) and subsequent letter dated 18.4.2016

sent by the Ministry of Defence to the Chief of all the

Armed Forces.

8. This Court in Ram Avtar (supra), while approving the

judgment of the Armed Forces Tribunal  only held that the

principle of rounding off as envisaged in Para 7.2 referred

to  herein  above  would  be  applicable  even  to  those  who

superannuated under Para 8.2.  The Court did not deal with

the issue of entitlement to disability pension under the

Regulations of Para 8.2.

9. As pointed out above, both Regulation 37(a) and Para

8.2  clearly  provide  that  the  disability  element  is  not

admissible if the disability is less than 20%.  In that

view of the matter, the question of rounding off would not

apply if the disability is less than 20%. If a person is

not entitled to the disability pension, there would be no

question of rounding off.

10. The Armed Forces Tribunal (‘AFT’), in our opinion, put

the cart before the house.  It applied the principles of

rounding  off  without  determining  whether  the

petitioner/applicant before it would entitled to disability

pension at all.

11. In view of the provisions referred to above, we are

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clearly of the view that the original petitioner/applicant

before  the  AFT  is  not  entitled  to  disability  pension.

Therefore, the question of applying the provisions of Para

7.2 would not arise in his case.  In this view of the

matter, we set aside the order of the AFT and consequently,

the original application filed by the Respondent before the

AFT shall stand dismissed.

The appeal is allowed accordingly.

                          .............................J.                             (  DEEPAK GUPTA )           

 .............................J.

                    ( SANJIV KHANNA ) New Delhi, Dated:December 11, 2019