Union Of India vs Wing Commander ( 24734 Ae )L) ...

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10870 OF 2018

UNION OF INDIA & ORS. .. Appellant (s)

Versus

WING COMMANDER S.P.RATHORE .. Respondent(s)

J U D G M E N T

DEEPAK GUPTA, J.

1. The short question involved in this appeal filed by

the Union of India is whether disability pension is at all

payable in case of a Air Force Officer who superannuated

from service in the natural course and whose disability is

less than 20%.

2. We may make reference to the Defence Service

Regulations Pension Regulations for the Air Force, 1961.

Regulations 37(a) and (b) 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.

2 (b) The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II.”

3. 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.

4. So far as the second part is concerned, we are not

going into that issue since in this case, it is admitted

that the disability was aggravated due to service rendered

in the Air Force. The only issue is whether the Appellant

not having 20% disability is at all entitled to disability

pension.

5. 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 dated 31.1.2001 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:-

Percentage of disability as Percentage to be reckoned assessed by invaliding for computing of disability medical board element Less than 50 50 3 Between 50 and 75 75 Between 76 and 100 100

“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.”

6. 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%.

7. Reliance has been placed by the learned counsel for 4

the Respondent on the Order dated 10.12.2014 of this Court

in “Union of India and Ors. Versus Ram Avtar” (Civil Appeal

No.418 of 2012 etc.) and subsequent letter dated 18.4.2016

sent by the Ministry of Defence to the Chief of all the

Armed Forces.

8. 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.

9. 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 that

view of the 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.

10. The Armed Forces Tribunal (‘AFT’), in our opinion, put

the cart before the house. It applied the principles of

rounding off without determining whether the

petitioner/applicant before it would entitled to disability

pension at all.

11. In view of the provisions referred to above, we are 5

clearly of the view that the original petitioner/applicant

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 accordingly.

.............................J. ( DEEPAK GUPTA )

.............................J. ( SANJIV KHANNA ) New Delhi, Dated:December 11, 2019