Element of Disability not admissible in the Defence Service if the Disability is less than 20%

Kritika Pandey | Maharaja Sayajirao University of Baroda | 27th December 2019 

Union of India & Ors Vs. Wing Commander S.P. Rathore [Civil Appeal No. 10870 of 2018]

ISSUE:

Whether disability pension is payable in case of a Air Force Officer who superannuated from service in the natural course and whose disability is less than 20%?

Reference to the:

Defence Service Regulations Pension Regulations for the Air Force, 1961. Regulations 37(a) 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.

•  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.
• 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 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:-

“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.”

• 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%.
• Reliance has been placed by the learned counsel for the Respondent in “Union of India and Ors. Vs. Ram Avtar” (Civil Appeal No.418 of 2012 etc.) and subsequent letter sent by the Ministry of Defence to the Chief of all the Armed Forces.
• 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.

HELD:

• 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 this 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.
• The Armed Forces Tribunal (‘AFT’), put the cart before the house. It applied the principles of rounding off without determining whether the petitioner before it would entitled to disability pension at all.
• In view of the provisions referred to above, it is clear that the original petitioner 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.