EX. LT. COL. R. K. RAI versus UNION OF INDIA & ORS.

Citation: [2018] 2 S.C.R. 667 · Decided: 16-02-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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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 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
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
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
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.
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:-
  [2018] 2 S.C.R. 667
667
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SUPREME COURT REPORTS
[2018] 2 S.C.R.
(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.
[Para 8][675-E-F]
1.2  In the opinion of the Medical Board, Primary
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
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
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
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
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
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from any future date when they on the basis of any medical report
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
was pressed before the Tribunal. In the

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