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Judgment
The order of the Bench consisting of Hon'ble Ms. Justice Sunita Gupta, Member (J) and Hon'ble Lt Gen Philip Campose, Member (A) in the above
mentioned OA was pronounced in the Open Court by Hon'ble Lt Gen Philip Campose, Member (A) today i.e. 8th July, 2020.
Aggrieved by the order of the respondents, conveyed vide AMC Record Office letter No. 13967030A Pen/DP Corres. dated 28.09.2017, whereby
disability element of pension having been earlier granted to him for 2 years by Release Medical Board (RMB) conducted on 23.08.2001 was denicd to
him subsequently on the ground that the Resurvey Medical Board conducted at MH Mathura on 29.09.2003 had reassessed his disability 'Chronic
Rhino Sinusitis' 15-19% (less than 20 percent) for life, the applicant, a soldier who was discharged from the Indian Army (AMC) on 01.01.2002 after
completing over 15 years of service, and granted disability element @ 20% only upto 22.08.2003, has filed this OA with a prayer that he be granted
disability element of pension @ 50% for life by treating his degree of disability @ 20% for life and granting him benefit of rounding off.
Brief facts of the case are that the applicant was enrolled into the Indian Army (Army Medical Corps) as a Sepoy on 24. 02.1986. Subsequently,
while serving at Gwalior, he was diagnosed with disease 'Chronic Rhino Sinusitis' in 1996 and 'Small Lower Renal Calculus (RT)' in 1999 and
downgraded medically to P3 and P2 medical category, respectively. His release was ordered with effect from 01.01.2002 under Army Rule 13(3)
item III (v), after he completed pensionable service, on the ground that he, being LMC, was ""unwilling to continue in alternate appointment"". The
RMB conducted prior to his discharge assessed his medical disabilities, a) 'Chronic Rhino Sinusitis' @ 20% for 2 years (aggravated by military
service) and b) 'Small Lower Renal Calculus (RT)' @ 11-14% (NANA), with composite disability assessed @ 30% for two years. Accordingly, the
applicant was granted disability pension @ 20% for two years, after which, he appeared for a Resurvey Medical Board. The Resurvey Board
conducted at MH Mathura on 29.09.2003 found only one medical disability (Chronic Rhino Sinusitis) to be present and assessed the degree of
disability @ 15-19% (less than 20%) for life. Consequently, his disability pension was stopped w.e.f. 28.09.2003. Hence, this OA.
Mr. J.P. Sharma, learned counsel for the applicant, has submitted that whereas the respondents had correctly granted disability pension @ 20% for
life for a disability (Chronic Rhino Sinusitis), which they had, of their own accord, assessed as having been aggravated due to extreme climatic
conditions undergone in service, therefore, it was blatantly unfair, during Resurvey Medical Board conducted after two years, to have reassessed the
same disability as being less than 20% and consequently stopping the disability element which was very fairly being paid to the applicant. Counsel has
cited Para 173A of the Pension Regulations for the Army (PRA), 1961 to claim that the early discharge of the applicant on medical grounds
tantamounts to invalidation from service and thus the applicant is entitled to disability element of pension 0, 20%, rounded off to 50% in keeping with
the judgment dated 25.06.2014 of the Hon'ble Supreme Court in the matter of Sukhvinder Singh Vs. Union of India [Civil Appeal No. 5605 of 2010 =
2014 STPL 468 SC]. Para 173A of PRA 1961 is reproduced hereunder as follows:
Individuals discharged on account of their being permanently in low medical category
173 A. Individuals who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative
employment in their own trade/category suitable to their low medical category could be provided or who are unwillingto accept the
alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be
deemed tohave been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.
Note: The above provision shall also apply to individuals who are placed in a low medical category while on extended service and are
discharged on that account before the completion of the period of their extension.
Learned counsel for the applicant has referred to Pal as 3 and 7 of Govt. of India Policy letter No. 1(2)97/D(Pen-C) dated 07.02.2001 regarding
Modalities for implementation of the recommendations of the fifth Central Pay Commission contained in paras 164.10 and 164.22 of the report
regarding the findings of the medical boards. Paras 3 and 7 of ibid Govt. Policy letter are reproduced as hereunder:
Para 3 - Assessment : The assessment with regard to the percentage of disability as recommended by the Invaliding Medical
Board/Release Medical Board as approved by the next higher medical authority, would be treated as final unless the individual himself
requests for a review.
Para 7 - Reassessment of Disability : There will be no periodical review by the Re-Survey Medical Boards for re-assessment of disabilities.
In case of disabilities adjudicated as being of a permanent nature, the decision once arrived at will be and for life unless the individual
himself requests for a review. In cases of disabilities which are not of a permanent nature, there will be only one review of the percentage by
a Reassessment Medical Board, to be carried out later, within a specified time frame. The percentage of disability assessed/ recommended
by the Reassessment Medical Board will be final and for life unless the individual himself asks for a review.
It is contended that Govt. has issued the ibid letter on 07.02.2001, prior to discharge of the applicant and thus his case is fully covered by the same as
his disability is of permanent nature and the applicant has not requested to carry out a Re-Survey Medical Board. Counsel contends that the
competent authority violated the ibid Govt. letter by allowing Resurvey Medical Board, which then unfairly reduced the degree of disability below
20""/o to deny disability element of pension to the applicant.
The applicant referred to the order dated 25.06.2014 of the Hon'ble Supreme Court in Sukhvinder Singh's case (supra), wherein it was held that :
Any disability not recorded at the time of recruitment must be presumed to have been caused subsequently; and unless proved to the
contrary to be a consequence of military service. The benefit of doubt is rightly extended in favour of the member of the Armed Force; any
other conclusion would be tantamount to granting a premium to the RecruitmentMedical Board for their own negligence; Secondly, the
morale of the protection and if any injury leads to loss of service without any recompense, this morale would be severely undermined;
Thirdly, there appears to be no provisions authorizing the discharge or invalided out of service where the disability is below twenty per cent
and seems to us to be logically so; Fourthly, wherever a member of the Armed Forces is invalided out of service, it perforce has to be
assumed that his disability was found to be above twenty per cent; and Fifthly, as per extant Rules/Regulations, a disability leading to
invalided out of service would attract the grant of fifty per cent disability pension.
Reliance is also placed on the order of AFT (Chandigarh Bench) dated 19.09.2016 in O.A. No. 621 of 2014 [Bharat Kumar Vs. Union of India &
Ors.J, O.A. No. 1235 of 2014 [Hoshiar Singh Vs. Union of India & Ors./ and O.A. No. 480 of 2015 [Jasbir Singh Vs. Union of India & Ors.!,
wherein all the applicants were invalided out from service and their disability were neither attributable to nor aggravated by military service and
assessed less than (c!' 20% (15-19%). This Hon'ble Tribunal allowed the above 0As on the basis of judgment passed by Hon7ble Apex Court in the
case of Dharamvir Singh Vs. Union of India & Ors. [2013 (7) SCC 316], as well as Sukhwinder Singh (supra). In the instant case, the applicant's
discharge tantamounts to invalidation out from service and his degree of disability ""CHRONIC RHINO SINUSITIS 47.3 V.67"" illegally was assessed
as less than @ 20% (15-19%) for life by Re-Survey Medical Board must be set aside. Further, his disability was aggravated due to military service.
Therefore, he is fully entitled to disability element of pension as per ibid judgments.
Learned counsel for the respondents, on the other hand, has controverted the arguments made on behalf of the applicant. Although the respondents
have not disputed the facts of the case, they contended that the applicant is not entitled to disability pension due to the fact that, bein g a low medical
category, when the respondents allowed him to continue in service by way of alternative appointment till he completes his qualifying service for
pension, he was unwilling to continue. Therefore, the applicant was discharged from service in permanent low medical category under Rule 13(3) Item
III (V) of the Army Rules, 1954. Respondents further submitted that the applicant was granted disability element of pension for two years as his
disabilities 'Chronic Rhino Sinusitis' was assessed @ 20% for 2 years (aggravated by military service) and 'Small Lower Renal Calculus (RT)' @ 11 -
14% (NANA), with composite disability assessed @ 30% for two years. After this temporary assessment period, the respondents forwarded all
medical record to the Military Hospital, Mathura for holding Resurvey Medical Board. The applicant appeared before the Resurvey Medical Board
held on 29.09.2003, which assessed his disability @ 15-19% (less than 20%) for life. Accordingly, the- applicant was denied disability element of
pension w.e.f. 24.09.2003 as his disability percentage was less than 20% (15-19%) in accordance with Pension Regulations for the Army, 1961 (Rule
173) Part-I. Counsel has contended that the only issue remains to be decided in this case is as to whether the applicant is entitled to disability element
of pension having disability less than 20%. Clearly, the applicant is not entitled to disability element of pension as his degree of disablement is less than
20% and thus does not meet the stipulations contained in Rule 173 of Pension Regulations.
Consideration:
We have given careful consideration to the arguments by both sides and find that the primary issue before us is whether a soldier who was
discharged early from service, though after completing pensionable service, due to being in low medical category, because he expressed 'unwillingness
to continue in alternative appointment', should be granted disability element of pension even though the Resurvey Medical Board reassessed his
medical disability 'Chronic Rhino Sinusitis' @ 15-19% for life, i.e. less than 20% for life.
Learned counsel for the applicant has argued that the relevant Govt. Policy letter dated 07.02.2001, issued about ten months prior to the date of
discharge of the applicant, directs that the percentage of disablement as assessed by the Release Medical Board must be treated as final and cannot
be subjected to review. Therefore, the conduct of the Resurvey Medical Board on 29.09.2003 was contrary to policy and thus should be set aside and
the applicant must be granted disability element of pension w.e.f. 23.08.2003, the date on which it was stopped. Reliance has also been placed on the
judgment in Sukhwinder Singh (supra) to contend that the applicant's case tantamounts to invalidation from service and thus the applicant is entitled to
disability element @ 50% after rounding off.
Learned counsel for the respondents, on the other hand, has argued that the applicant, having expressed unwillingness to serve in alternate
appointment, and thus, having been discharged under Army Rule 13(3) Item III (v), and having been allowed discharge due to which he is entitled to
service pension, cannot be considered as a case of invalidation from service. Moreover, the Resurvey Medical Board having reassessed his degree of
disablement as less than 20% for life, he does not meet the criteria as per Para 173 of Pension Regulations for the Army, 1961 and thus cannot be
granted disability element of pension.
Having considered the contending arguments and having taken note of Para 173A of Pension Regulations for the Army, 1961, wherein a person
discharged in lower medical category before completion of engagement shall be deemed to be invalided out from service, even if he was unwilling to
accept alternate appointment, we are of the opinion that the case of the applicant is also squarely covered by the provisions of the Govt. policy letter
dated 07.02.2001, whereby it has been directed at Para 3 that the assessment with regard to percentage of disability as recommended by the Release
Medical Board, as approved by the next higher authority, would be treated as final, unless the individual himself requests for a review. Therefore, we
find that the limitation of 2 years, as stipulated by the Release Medical Board conducted on 23.08.2001 and the conduct of Resurvey Medical Board
on 29.09.2003 at MH Mathura, which reassessed the degree of disability as less than 20%, were both illegal being in contravention to the policy in
vague and thus the assessments thereto are liable to be set aside.
In the result, we find merit in the present OA and allow the same. Applicant is granted disability element of pension @ 20% for life with effect
from his date of discharge, rounded off to 50% in keeping with the Govt. of India Circular dated 31.01.2001 and the judgment dated 10.12.2014 of the
Hon'ble Supreme Court in the matter of Union of India & Others Vs. Ram Avtar [Civil Appeal No. 418 of 2012]. Arrears to be paid within four
months from the date of receipt of copy of the order, failing which, it will attract interest @ 6% per annum.
No order as to costs.
Pronounced in open court on this 8th day of July, 2020.