ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI

O.A. NO. 100 OF 2016

TUESDAY, THE 30TH DAY OF MAY, 2017/9TH JYAISHTA, 1939

CORAM:

HON'BLE MR. JUSTICE BABU MATHEW P. JOSEPH, MEMBER (J)

HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)

LT COL MOHAN P GEORGE (RETD)

NO. IC 31202 H
401/G-24, AWHO SANDEEP VIHAR, …...... APPLICANT
KANNAMANGALA P.O.,
BANGALORE – 560 067.

BY ADV. SRI. V.K.SATHYANATHAN

versus

1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF DEFENCE, SOUTH BLOCK,
NEW DELHI – 110 011.

2. THE ADJUTANT GENERAL,

ADJUTANT GENERAL'S BRANCH, ......... RESPONDENTS
SENA BHAVAN,
NEW DELHI – 110 105.

3. THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS)

OFFICE OF THE PCDA (P), DRAUPADIGHAT,
ALLAHABAD, U.P – 211 014.

BY ADV.SRI. C.B.SREEKUMAR, SENIOR PANEL COUNSEL

O.A.NO. 100 OF 2016 : 2:

ORDER

VAdm M.P.MURALIDHARAN, MEMBER (A):

1. The Original Application has been filed by

Lieutenant Colonel Mohan P George (Retd), No. IC

31202H, seeking disability element of pension with the

benefit of rounding off.

2. The applicant was commissioned into the Army on

15 June 1975 and took premature retirement from service

on 27 September 2000. The Release Medical Board (RMB)

held at the time of his retirement from the Army, assessed

him to have the disabilities of Hypothyroidism, Diabetes

Mellitus and Hypertension, which were assessed as

attributable to service with composite degree of

disablement at 30%. However, the applicant was not

granted the element of disability pension as he had sought

premature retirement.
O.A.NO. 100 OF 2016 : 3:

3. Sri. VK Sathyanathan, the learned counsel for the

applicant, submitted that the applicant was fully fit at the

time of joining the Army, and therefore, the disabilities

assessed by the Release Medical Board should be held as

attributable to and aggravated by Military Service. Despite

the Release Medical Board finding that his disabilities were

attributable to service with the composite degree of

disablement of 30%, the applicant was not granted

disability element of pension stating that Officers

proceeding on premature retirement are not entitled to

any disability pension (Annexure-A1).

4. The learned counsel further submitted that based

on recommendations of VI CPC, the Government revised

the policy on grant of disability pension to those personnel

who seek voluntary retirement. The policy promulgated

vide Ministry of Defence Letter No. 16(5)/2008/D

(Pen/Policy) dated 29 September 2009 and PCDA (P)

O.A.NO. 100 OF 2016 : 4:

Circular No.433 dated 25 March 2010 (Annexure-A2),

permitted grant of disability element of pension even to

those who sought voluntary retirement. Even though the

decision was to grant such benefits only to personnel who

retired on or after 01 January 2006, based on orders of

Courts/Tribunals, the benefit was also extended to those

who had retired prior to 01 January 2006. The applicant,

therefore, preferred an appeal to the Respondents to

sanction him disability element of disability pension

(Annexure-A3). The Respondents, however, rejected the

appeal stating that in accordance with provisions of

Pension Regulations for the Army, 2008, Officers who seek

voluntary retirement shall not be eligible for any award on

account of disability. Further, the revised policy of granting

disability element, even to those who sought voluntary

retirement, was only for those who retired on or after 01

January 2006. Since the applicant had retired in

September 2000, he was not eligible for such benefits

O.A.NO. 100 OF 2016 : 5:

(Annexure-A4).

5. The learned counsel also submitted that the

Honourable Delhi High Court in Mahavir Singh Narwal

vs. Union of India and Others, (2004) 74 DRJ 661,

had held that even personnel, who were discharged on

compassionate grounds, were eligible for disability element

of pension, provided the disability was attributable to or

aggravated by Military Service. The decision was also

upheld by the Honourable Apex Court. Further, the

decision to restrict the revised policy, of extension of the

benefit of disability element even to those personnel who

had sought voluntary retirement, to personnel who retired

on or after 01 January 2006, had been held as arbitrary

and discriminatory by this Tribunal as well as the Principal

Bench of this Tribunal. The learned counsel therefore

prayed that the applicant be granted disability element of

pension.
O.A.NO. 100 OF 2016 : 6:

6. The Respondents in their reply statement

submitted that in accordance with Regulation 50 of the

Pension Regulations for the Army 1961, an Officer, who

retires voluntarily, shall not be eligible for any award on

account of disability. While the condition has been relaxed

by the Government by its revised policy dated 29

September 2009 (Annexure-A2), the benefits are for those

who had retired on or after 01 January 2006. Hence the

applicant, who had retired prior to 01 January 2006, was

not eligible for grant of disability element of pension, and

therefore, his claim for disability element of pension was

not processed.

7. Heard rival submissions and perused records.

8. It is not disputed that the applicant, who was

granted premature retirement from the Army with effect

O.A.NO. 100 OF 2016 : 7:

from 27 September 2000, was assessed by the Release

Medical Board to have a composite disability of 30%. It is

also not disputed that his claim for grant of disability

element of pension was not processed, as he had sought

voluntary retirement. While the applicant has contended

that he was eligible for grant of disability element of

pension in view of the relaxation made by the Government

by policy letter dated 29 September 2009 (Annexure-A2),

the respondents have contended that it was applicable

only in case of personnel who had retired on or after 01

January 2006.

9. The sole question before us therefore is, whether

the applicant is eligible for disability element of disability

pension in view of the revised Government policy in letter

dated 29 September 2009. The issue is no more res

integra, as we had considered the aspect in O.A.No.125

of 2015, (Major Ramakrishnan A.K. (Retd) vs. Union

O.A.NO. 100 OF 2016 : 8:

of India and Others) and had held as follows:-

“9. The aspect of enhanced benefits announced by

the Government becoming available to those personnel

who retired before the date of promulgation was

considered by the Honourable Apex Court in the case

of KJS Buttar vs. Union of Indian & Another,

(2011) 11 SCC 429. In that case, the appellant was

denied enhanced benefits on the basis of the fact that

he had retired before 01.01.1996 and such benefits

were granted only to those who retired on or after

01.01.1996. The Honourable Apex Court held as

follows:

“8. In our opinion, the restriction of the

benefit to only officers who were invalided

out of service after 1-1-1996 is violative of

Article 14 of the Constitution and is hence

illegal. We are fortified by the view as

taken by the decision of this Court in Union

of India v. Deoki Nandan Aggarwal, 1992

O.A.NO. 100 OF 2016 : 9:

Supp (1) SCC 323 where it was held that

the benefit of amending Act 38 of 1986

cannot be restricted only to those High

Court Judges who retired after 1986.

10. In our view, the observations of the

Honourable Apex Court in KJS Buttar's case (supra) is

pari materia in this case. We are of the view that the

Government of India letter of 29 September 2009 has

to be considered on similar terms as that of the

Government of India letter of 31 st January 2001 which

was considered by the Honourable Apex Court in the

KJS Buttar's case (supra). Both these letters were only

liberalisation of existing Schemes or in other words

nothing but relaxation of an existing scheme and were

not new retiral benefits. As a consequence, the

applicant becomes eligible for the benefit of disability

element in accordance with the letter dated

29 September 2009 (Annexure A1).”.

10. In our view, therefore, the applicant is eligible

O.A.NO. 100 OF 2016 : 10 :

for grant of disability element of pension and hence

Annexure-A4 is quashed. The applicant would also be

eligible for the benefit of rounding off in accordance with

the principles enunciated by the Honourable Apex Court in

Union of India vs. Ram Avtar, Civil Appeal

No.418/2012 and connected cases.

11. In view of the foregoing, the Original Application

is partly allowed and the applicant is held entitled to grant

of disability element of pension with the benefit of

rounding off in accordance with law, from 01 January

2006. However, the arrears shall be restricted to a period

of three years prior to filing of this Original Application, in

accordance with the principles enunciated by the

Honourable Apex Court in Union of India and Others

vs Tarsem Singh, (2008) 8 SCC 648. The respondents

are directed to pay the disability element of pension to the

applicant with the benefit of rounding off, restricting the

 O.A.NO. 100 OF 2016 : 11 :

arrears to a period of three years prior to the date of

filing of the Original Application, within a period of four

months from the date of receipt of a copy of this Order,

failing which the unpaid amount will carry a simple

interest at the rate of 8% per annum.

12 .There will be no order as to costs.

13 .Issue free copy to the parties.

Sd/- Sd/-
VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE BABU MATHEW P. JOSEPH
MEMBER (A) MEMBER (J)

(true copy)
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