Ranveer Singh vs Union Of India And Others

,,,,

Counter affidavit has been filed. The applicant does not want to file any rejoinder .,,,,

Arguments heard.,,,,

Vide separate order. OA stands disposed off.,,,,

M.A No. 622 of 2019:,,,,

Heard learned counsel for the parties on the point of delay.,,,,

Keeping in view the averments made in the M.A and finding the same to be bona fide and in the light of the decision in Union of India and others v.,,,,

Tarsern Singh (2009(1) AISII 371), we allow the instant M.A and condone the delay of 10950 days in filing the O.A.",,,,

0.A No. 200 of 2019:,,,,

The instant 0.A has been filed by the applicant under Section 14 of the Armed Forces Tribunal Act, 2007 seeking the following reliefs:",,,,

(a) Quash and set aside the impugned letter of Respondent No.3 dated 29.12.2018, which has denied disability pension to the applicant;",,,,

(b) Direct the respondents to treat the disability 'Immune Surveillance' of the applicant as attributable to or aggravated by Military service and grant,,,,

him disability element of pension with the benefits of broad banding; and,,,,

(c) Direct the respondents to pay the due arrears of disability element of pension with interest © 12% per annum from the date of discharge with all,,,,

consequential benefits;,,,,

The brief facts of the case are that the applicant was enrolled in the Indian Army on 16.02.1991 and was discharged from service on 28.02.2017 in,,,,

the rank of Havildar, after completion of 25 years, 11 months and 14 days of qualifying service and is receiving service pension accordingly. The",,,,

applicant was placed in the low medical category S1H1A1P2 (Permanent) for the disability 'Immune Surveillance' with effect from 04.09.2016 to,,,,

04.09.2018. Before being discharged from service, he was brought before a Release Medical Board (RMB) held on 06.12.2016, which opined his",,,,

disability 'Immune Surveillance' as neither attributable to nor aggravated (NANA) by Military service. The RMB also assessed his degree of,,,,

disablement for the same © 6-10°/0 for life and the net assessment qualifying for disability pension © Nil for life. Therefore, his claim for",,,,

disability element of pension was not required to be submitted to PCDA (P), Allahabad as he was not entitled for disability pension in terms of Para",,,,

173 of the Pension Regulations for the Army, 1961 (Part 1) and the Government of India (Ministry of Defence) letter dated 31.01.2001. The same",,,,

was intimated with a further advice to the applicant to file an appeal within six months, if he was not satisfied with the decision of the competent",,,,

authority. On 01.04.2017, the applicant sent an appeal-cum-legal notice, which was rejected vide the impugned letter dated 29.12.2018 stating that the",,,,

disability 'Immune Surveillance' assessed was NANA and not connected with Military service. Hence this O.A.,,,,

Learned Counsel for the applicant contended that at the time of enrolment, the applicant was found medically and physically fit for service in the",,,,

Indian Army and there is no note in his service records that he was suffering from any disease at the time of enrolment in the Army. The disease of,,,,

the applicant was contracted during the service, hence it is attributable to and aggravated by Military Service. The learned counsel also submitted that",,,,

in similar cases, Hon'ble Supreme Court and various Benches of this Tribunal have granted disability pension, as such the applicant is also entitled to",,,,

disability pension and its rounding off. In support of his case, learned counsel for the applicant also placed reliance upon the decision of the Hon'ble",,,,

Supreme Court in Union of India and another v. Rajbir Singh (2015) 12 SCC 264 to contend that only two conditions have been specified in Regulation,,,,

173 for the grant of disability pension viz. (i) the disability is above 20%; and (ii) the disability is attributable to or aggravated by Military service. He,,,,

also stated that there is neither any note in the service records of the applicant at the time of his entry into service nor have any reasons been,,,,

recorded by the Medical Boards to suggest that the disease which the applicant concerned was found to be suffering from could not have been,,,,

detected at the time of his entry into service.,,,,

On the other hand, learned counsel for the respondents contended that the applicant was found to be HIV positive with effect from 14.07.2015 and",,,,

thereafter was placed under treatment and surveillance. The disability of the applicant i.e. 'Immune Surveillance' has been regarded as NANA by the,,,,

RMB and as the percentage of the disability was assessed @ 6-10% for life, the net assessment qualifying for disability pension was assessed @ NIL",,,,

for life, as per the extant rules. The learned counsel contends that no evidence has been provided by the applicant to show that he had contracted HIV",,,,

positive status due to any reason other than sexual contact. In fact, the applicant's CO has accepted that he had contracted sexually transmitted",,,,

disease before 2015. the disease while at Delhi. Therefore, the learned counsel for the respondents contended that there is no illegality or irregularity",,,,

in the rejection of the claim of the applicant for disability pension.,,,,

Having heard the learned counsel appearing for the parties and perused the records made available to us, the questions that require our",,,,

consideration are:,,,,

(i) Whether the disability of the applicant 'Immune Surveillance' is attributable to or aggravated by Military service?,,,,

(ii) Whether the disability of the applicant assessed by the RMB @ 6-10% with the net assessment @ Nil for life is justified?,,,,

Regulation 173 of the Pension Regulations for the Army 1961, which relates to primary conditions for the grant of disability pension, reads as under:",,,,

Primary conditions for the grant of disability pension.â€" Unless otherwise specifically provided a disability pension consisting of,,,,

service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is,,,,

attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over.,,,,

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.,,,,

Thus it is clear that disability pension in normal course is to be granted to an individual, (i) who is invalided out of service on account of a disability",,,,

which is attributable to or aggravated by military service; and (ii) who is assessed at 20% or over disability unless otherwise it is specifically provided.,,,,

Further, a disability 'attributable to or aggravated by military service' is to be determined under the Entitlement Rules for Casualty Pensionary Awards,",,,,

1982, as shown in Appendix II.",,,,

Disability,"Attributable to service

(Y/N)","Aggravated by service

(Y/N)","Not connected with

service (Y/N)","Reason/Cause/ Specific

condition and period in

service

Immune Surveillance,No,No,Yes,"No causal connection

with military service.

Hence ID is conceded

as neither attributable to

nor aggravated by mil

service. Ref Para-1 of

Chapter VI of GMO Mil

Pens-2002 &

amendment-2008