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 SIG2N 014. 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 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 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, 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.
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 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 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:-
“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 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 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.
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)
10. Another part of the same opinion of Medical Board, which is with regard to percentage of disablement, is to the following effect:-
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 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 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 the Government order dated 19.05.2017 in light of the observations as made above.
. J.
( A.K. SIKRI ) NEW DELHI, FEBRUARY 16, 2018.
. J.
( ASHOK BHUSHAN )