Surendra Madhok vs Union Of India And Others

The applicant, Lt. Col. Surendra Madhok (Retd.), through the medium of the instant Original Application is seeking the following reliefs:

(a) Set aside the Order No. 12682/IC-24624/T-6/MP5(b) dated 12.01.2017 passed by the Add! Dte Gen Personnel Service Adjutant

General's Branch, IHQ of MoD (Army) [Annexure A-1] whereby the Applicant claim for disability pension was rejected;

(b) Pass an order directing the Respondents to grant disability pension to the Applicant from the date of his retirement;

(c) Grant the benefit of rounding off the disability pension in light of Judgment dated 10.12.2014 of the Hon'ble Supreme Court in the case

of Union of India and Ors Vs Ram avatar in Civil Appeal No. 418/2012;

(d) Direct the Respondents to pay all the arrears to the Applicant from the date of retirement within 3 months with 12% interest;

(e) grant all consequential benefits and any other relief suitable in the facts and circumstances of the case;

(f) pass any other appropriate order(s) or direction(s) in favour of the Applicant which this Hon'ble Tribunal may deem just and proper in

the facts and circumstances of the case, in the interest of justice.

Briefly stated facts of the case are that the applicant was commissioned in Indian Army on 20.12.1970 and was pre-maturely retired on 25.08.1993

in Low Medical Category. At the time of retirement from service, the Release Medical Board (RMB) held at Military Hospital, Jabalpur on

24.08.1993 assessed his disability 'TEAR MEDICAL MENISCUS â€" (RT) KNEE 717 V-67' @ 20% for two years but opined the disability to be

aggravated by military service. At the time of his premature retirement in 1993, there was no provision for granting disability pension to persons who

opted for premature retirement, hence, the claim of the applicant for disability pension was not processed. Subsequently, the applicant came to know

that after VI C.P.C. disability pension is being paid to premature retirees, hence, he represented for the same. However, his application was rejected

by the respondents vide letter dated 12.01.2017. It is in this perspective that the applicant has preferred the present O.A.

3 Learned Counsel for the applicant pleaded that at the time of premature retirement in 1993, the RMB has conceded the disability of the applicant to

be aggravated by military service, hence, now after change of rules post VI C.P.C., the applicant is entitled to disability pension. He complained that

the respondents have not responded in a positive manner to his request for disability pension. He further submitted that in similar cases, Hon'ble Apex

Court and various Benches of the Armed Forces Tribunals have granted disability pension, as such the applicant is entitled to disability pension

©20% and its rounding off to 50%.

On the other hand, Ld. Counsel for the respondents contended that disability of the applicant i.e. 'TEAR MEDICAL MENISCUS â€" (RT) KNEE

717 V-67' has been regarded as 20% for two years by RMB as aggravated by military service. However, in 1993 there was no provision to grant

disability pension to a premature retired officer, hence, applicant's case was not processed as per provision contained in Para 50 of the Pension

Regulation for the Army 1961 (Part â€"I) an officer who retires voluntarily shall not be eligible for an award on account of any disability. Since the

applicant has retired prematurely from service on 25.08.1993, hence, he is not eligible for disability pension from his date of retirement but his case can

be considered for disability pension from 01.01.2006.

We have heard Ld. Counsel for the applicant as also Ld. Counsel for the respondents. We have also gone through the RMB proceedings. The

questions which need to be answered by us is straight and simple i.e. whether the applicant is eligible for grant of

This is a case where the RMB had conceded the disease i.e. 'TEAR MEDICAL MENISCUS â€" (RT) KNEE 717 V-67' ©20% for two years

of the applicant as aggravated by Military Service. The Army Headquarters had not processed the claim of the applicant for disability pension as per

provisions as applicable in 1993. However, the respondents have given a vague reply in their Counter Affidavit that they are willing to consider his

claim w.e.f. 01.01.2006. However, we have noticed a letter from respondents dated 12.01.2017 (Annexure A-1 of the Original Application) informing

the applicant that he is not eligible for disability pension.

Thus after considering all the issues and perusing the records, following facts are clear to us :-

(a) That the applicant proceeded on premature retirement on 25.08.1993 with 22 years 08 months service and is in receipt of service pension.

(b) That RMB opined his disease i.e. 'TEAR MEDICAL MENISCUS â€" (RT) KNEE 717 V-67' ©20% for two years, to be aggravated by

military service, hence, prima facie the applicant is eligible for disability pension.

(c) That due to rules prevalent in 1993 premature retirees were not eligible for disability pension, hence, the applicant's case for disability pension was

never processed.

(d) After VI C.P.C, i.e. 01.01.2006, premature retirees are eligible for disability pension, hence, the applicant has applied for the same in 2017 but the

respondents are not giving a clear commitment. disease and disability has been clarified by Hon'ble Supreme Court in its judgment dated 03.10.2019 in

Civil Appeal No 7672 of 2019 in Ex Cfn Narsingh Yadav vs Union of India & Ors. Decidedon 03.10.2019. Relevant part of the aforesaid judgment is

as given below:-

In the above circumstances, we are very clear that the applicant is prima facie eligible for disability element of disability pension, however, since his

RMB in its wisdom has recommended the validity of his disability only for two years, hence, he will have to undergo Re-Survey Medical Board.

Therefore, as per Ministry of to undergo Re-Survey Medical Board. Therefore, as per Ministry of Defence letter No. 1(2)/97/D (Pen-C) dated

07.02.2001, para 10, a fresh RSMB for life will have to be conducted by the respondents. In this connection we are of the opinion that a Medical

Board is the best agency to take a call on the duration after which the disease needs review. Additionally, the opinion of Medical Board and the

percentages of disability in the Medical Board have direct correlation with financial benefits accruing out of a disability, hence, it is important that

Medical Board reaches a final opinion. The respect for expertise of a Medical Board on matter concerning disease and disability has been clarified by

Hon'ble Supreme Court in its judgment dated 03.10.2019 in Civil Appeal No 7672 of 2019 in Ex Cfn Narsingh Yadav vs Union of India & Ors.

Decided on 03.10.2019. Relevant part of the aforesaid iudcirnent is as given below:-

“21. Though, the opinion of the Medical Board is subject to judicial review but the courts are not possessed of expertise to dispute such

report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of

the Review Medical Board,'

In view of the above, the Original Application No. 866 of 2017 deserves to be partly allowed, hence, partly allowed. The impugned order dated

12.01.2017, enclosed as Annexure A-1 of the Original Application, is set aside. Since, the applicant's RMB was valid only for two years w.e.f.

25.08.1993 and in view of the decision of the Hon'ble Supreme Court on limitations in Union of India Vs. Tarsem Singh, reported in 2009 (1) Al 511

371, the applicant is not entitled for the arrears of disability element for the two years period after retirement. The respondents are directed to conduct

a Re-Survey Medical Board for the applicant. Further entitlement to disability element will depend on the outcome of RSMB. Respondents are

directed to give effect to the order within four months from the date of receipt of a copy of this order.

No order as to costs.

Pending application(s), if any, also stand disposed of.

Pronounced in the open court on 13th March, 2020.