Supreme Court of India
EX. LT. COL. R. K. RAIversusUNION OF INDIA & ORS.
- Citation
- 2018 INSC 163
- Decided
- 16 February 2018
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
The 2017 Government order extends disability pension to pre‑2006 voluntary retirees who meet its conditions, and the appellant fulfills those conditions, making him entitled to the pension.
Summary
Ex‑Lt Col R.K. Rai, commissioned in 1982, developed primary hypertension that the Medical Board attributed to stresses of military service and was assessed at 30% disability. He took premature voluntary retirement in July 2003 and later applied to the Armed Forces Tribunal for a disability pension. The Tribunal rejected his claim, relying on Regulation 48 and 50 of the Armed Forces (Pension) Regulations, 1961, which barred voluntary retirees who left service before 1 January 2006 from receiving disability pension. The Supreme Court examined the Government of India order dated 19 May 2017, which extended disability pension benefits to pre‑2006 retirees provided (i) the disability is attributable to or aggravated by service, (ii) the retiree has foregone lump‑sum compensation, and (iii) the disability is at least 20% as of the order’s effective date. The Court found that Rai satisfied all three conditions, and that the 2017 order supersedes the earlier regulations. Consequently, the Court set aside the Tribunal’s orders and directed the respondents to process Rai’s disability pension, while reserving the right to reassess the disability percentage if it falls below 20%.
Issues considered
- Whether the Government order dated 19 May 2017 extending disability pension to pre‑2006 retired Armed Forces personnel overrides the earlier pension regulations restricting such benefits.
- Whether Ex‑Lt Col R.K. Rai satisfies the conditions laid down in the 2017 order for entitlement to disability pension.
- Whether the Armed Forces Tribunal was correct in rejecting the claim on the basis of Regulation 48 and 50 of the 1961 Pension Regulations.
Legislation cited
- Armed Forces (Pension) Regulations, 1961s. Regulation 48, s. Regulation 50
Subjects
disability pensionarmed forcesvoluntary retirementgovernment ordermilitary servicemedical boardpre‑2006 retireesArmed Forces Tribunalpension regulations
Judgment
[2018] 2 S.C.R. 667 667
EX. LT. COL. R. K. RAI A
v.
UNION OF INDIA & ORS.
(Civil Appeal Nos. 3101-3102 of 2015)
B
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, C
commissioned in the Artillery Regiment, fell ill while performing the
duty of Observation Post Officer – Medical Board opined that
medical disability was due to stress and strain of services – Appellant
applied for premature retirement and retired on 29.07.2003 –
Medical Board assessed appellant’s disability at 30% – O.A filed
by appellant before Armed Forces Tribunal for grant of medical D
disability pension, rejected on ground that it cannot be granted to
the appellant as he had taken voluntary retirement much before the
cut off date for grant of disability pension, i.e. 01.01.2006 – Review
petition also dismissed – On appeal, held: Government of India
issued order dated 19.05.2017 extending the benefit of disability E
pension to Armed Forces Personnel, who retired/discharged from
service even before 01.01.2006 – Appellant fulfills all the three
conditions for grant of disability pension and is fully covered by
Government order dtd. 19.05.2017 – Judgments of the Tribunal are
set aside – Respondents are directed to process the claim of appellant
as per Government order dtd. 19.05.2017 – However, it shall always F
be open for respondents to assess the percentage of disability of
appellant by convening a Medical Board to find out whether the
disability percentage is 20% or less and discontinue the claim from
any future date if disability has gone below 20% – Service Law –
Military Service. G
Allowing the appeals, the Court
HELD: 1.1 Para 3 of the Government Order dated
19.05.2017 provides that the extension of benefits to those officers
who retired Pre-2006 is on following conditions:-
H
667
668 SUPREME COURT REPORTS [2018] 2 S.C.R.
A (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
B (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.
[Para 8][675-E-F]
1.2 In the opinion of the Medical Board, Primary
C Hypertension of the appellant was aggravated by Army service
and the reasons given are “due to stresses & strains of military
service”. 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
D claim for grant of disability element in affected cases will be
submitted 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. Para 7 of the order mentions that “The provisions of this
letter shall take effect from 01.01.2006.” Thus, the disability for
E the purposes of the order dated 19.05.2017 has to be looked into
on the date of 01.01.2006. This is also decipherable from Para 3
of the order. [Paras 9, 11 and 12][675-G-H; 677-A-C]
1.3 The Release Medical Board on 31.03.2004 adjudicated
the appellant’s disability at 30%, which disability was held to be
F
permanent in nature. The appellant who appeared in person made
a statement that he had not taken any lump sum compensation in
lieu of disability. There is no reason not to accept his statement.
The appellant thus fulfills all the three conditions for grant of
disability pension. The appellant is fully covered by the order of
G the Government dated 19.05.2017. Appropriate steps be taken
in accordance with Para 5 for grant of disability pension. However,
it shall always be open 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
H
EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. 669
from any future date when they on the basis of any medical report A
are 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 by
the appellant before this Court, a perusal of the order of the
Tribunal rejecting the claim does not indicate that the said claim B
was 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 these
appeals. However, liberty is reserved to the appellant to file a
Review Petition before the Tribunal, in event, the claim was C
pressed 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. Union
of India [Decision of Armed Forces Tribunal, Principal
Bench, New Delhi in O.A. No. 139 of 2009] ; D
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 E
[2010] 7 SCR 777 referred to Para 1
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3101-
3102 of 2015.
F
From the Judgment and Orders dated 20.09.2013/20.01.2014 in
Original Application No. 25 of 2013/ Miscellaneous Application No. 65
of 2013 in Original Application No. 25 of 2013 and final Order dated
11.06.2014 in Review Application No. 4 of 2014 of the Armed Forces
Tribunal Regional Bench at Mumbai.
G
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 the
Respondents.
H
670 SUPREME COURT REPORTS [2018] 2 S.C.R.
A The Judgment of the Court was delivered by
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
B 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 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
C 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
D 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,
E where he prayed for following reliefs:-
“ Relief Sought
In view of the facts mentioned in this Original Application, the
Applicant most respectfully prays for the following reliefs:-
F 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
G
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.
H
EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. 671
[ASHOK BHUSHAN, J.]
D. That the Hon’ble Court be pleased to grant such other and A
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 B
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, 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 C
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 D
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. E
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.
3. The appellant appearing in person contends that in view of the F
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 G
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
H
672 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 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 his original application, he has prayed for relief to
B
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
C 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
D 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 Disability claim was not
E 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
F 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
G 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:-
H
EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. 673
[ASHOK BHUSHAN, J.]
“No. 16(05)/2008/D(Pension/Policy) A
Government of India
Ministry of Defence
Department of Ex-Servicemen Welfare
New Delhi-110011
B
Dated 19th May 2017
To,
The Chief of the Army Staff
The Chief of the Naval Staff C
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 D
subsequently proceeded on premature/voluntary
retirement prior to 01.01.2006.
Sir,
E
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 F
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 G
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.
H
674 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 3. The issue of extension of above benefit to the Pre-2006 retired/
discharged Armed Forces Personnel, who were retained in service
despite 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
B
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,
C 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
D 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
E 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
F 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
G 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 Commissioned Officers and sanction
would be issued by IO/ C Record office in case of JCOs/ ORs.
H
EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. 675
[ASHOK BHUSHAN, J.]
6. The corrigendum PPOs granting disability element/ war injury A
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 B
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. C
Yours faithfully
Sd/-
(Manoj Sinha)
Under Secretary to the Government of India” D
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 E
by military service
(b) They had foregone lump sum compensation in lieu of that
disability.
(c) The concerned Armed Forces Personnel should still be
F
suffering from the same disability which should be assessed
at 20% or more on the date of effect of this letter.
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
G
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:-
H
676 SUPREME COURT REPORTS [2018] 2 S.C.R.
A Part V
OPINIONS OF THE MEDICAL BOARD
(Not to be communicated to the
individual)
1. Clinical relationship of the disab ility with servi ce condition or otherwise
B
Disability Attributable 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
servi ce.
D
10. Another part of the same opinion of Medical Board, which is
with regard to percentage of disablement, is to the following effect:-
1. What is percent degree of disablement as compared
with a healthy person of the same age and sex?
E
(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
EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. 677
[ASHOK BHUSHAN, J.]
11. From the above, it is clear that disability of the appellant was A
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
B
showing extent of disability applicable as on date of effect of this letter
in respect of 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 C
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 D
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 E
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 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 F
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 G
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. H
678 SUPREME COURT REPORTS [2018] 2 S.C.R.
A 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 the
Government order dated 19.05.2017 in light of the observations as made
above.
B
Divya Pandey Appeals allowed.
C
D
E
F
G
H
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