Paragraph numbers below are the court’s original numbering, recovered from the source text.
2. In terms of Para- 3 of the above referred letter the provisions stated above are applicable to the Armed Forces Personnel who were, retired/discharged from service on or after 01.01.2006. Armed Force Tribunal (Principal Branch) New Delhi in OA No. 336 of 2011 vide their order dated 07.02.2012 have struck down Para-3 of this Ministry’s above letter. EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. [ASHOK BHUSHAN, J.]
3. The issue of extension of above benefit to the Pre-2006 retired/ discharged Armed Forces Personnel, who were retained in service despite disability attributable to or aggravated by military service, was under active consideration of Government. Now, the President is pleased to decide that all Pre- 2006 Armed Forces Personnel who were retained in service despite disability and retired voluntarily or otherwise will be allowed disability element/war injury element in addition to retiring/ service pension or retiring/ service gratuity, subject to the condition that their disability was accepted as attributable to or aggravated by military service and had foregone lump sum compensation in lieu of that disability. Further, concerned Armed Forces Personnel should still be suffering from the same disability which should be assessed at 20% or more on the date of effect of this letter.
4. Implementation of these orders is expected to be arduous and challenging. Documents like Medical Board proceedings, retention of the personnel in service despite disability, option of individual foregoing lump sum compensation and non-payment of lump sum compensation would be required in all cases which may not be available at the end of Pay Accounting Authorities/ Record offices and Pension sanctioning authorities readily. In such cases, pensioners/ family pensioners may be asked to produce the copies of relevant documents to the Executive authorities in support of their claims.
5. The claim for grant of disability element/ war injury element in affected cases will be submitted to the PSA concerned by PCDA(O) Pune/ NPO/AFCAO/ Record office along-with copy of medical board/ fresh medical board proceedings showing extent of disability applicable as on date of effect of this letter in respect of Commissioned officers/ JCOs/ ORs. It win be responsibility of PCDA(O) Pune/ NPO/ AFCAO and Record office to confirm payment/ non- payment of lump sum-compensation in lieu of disability element to Commissioned officers and JCOs/ ORs. A sanction showing extent of disability and its attributability/ aggravation due to Military service in terms of MOD letter No. 4684/DIR(PEN)/2001 dated 14.08.2001 would be issued by the Service HQrs in case of Commissioned Officers and sanction would be issued by IO/ C Record office in case of JCOs/ ORs.
6. The corrigendum PPOs granting disability element/ war injury element in all affected cases will be issued by respective Pension Sanctioning Authorities.
7. The provisions of this letter shall take effect from 01.01.2006.
8. Pension Regulation of all the three services will be amended in due course.
9. This Issues with the concurrence of Finance Division of this Ministry their letter I.D. No. 10(3)2012/FIN/PEN dated 19th May 2017.
10. Hindi version will follow. Yours faithfully Sd/- (Manoj Sinha) Under Secretary to the Government of India” 8. Para 3 of the Government Order provides that the extension of benefits to Pre-2006 retired is on following conditions:- (a) Their disability was accepted as attributable to or aggravated by military service (b) They had foregone lump sum compensation in lieu of that disability. (c) The concerned Armed Forces Personnel should still be suffering from the same disability which should be assessed at 20% or more on the date of effect of this letter. 9. The appellant has relied on the Release Medical Board proceeding dated 31.03.2004 which has been brought on record as Annexure A/14. A perusal of the opinion of the Medical Board as contained in Part 5 of the document, makes it clear that opinion of the Medical Board is that Primary Hypertension of the appellant is aggravated by Army service and the reasons given are that “due to stresses & strains of military service”. It is useful to extract opinion of Medical Board in Part V, which is to the following effect:- EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. [ASHOK BHUSHAN, J.] Part V OPINIONS OF THE MEDICAL BOARD (Not to be communicated to the individual) 10. Another part of the same opinion of Medical Board, which is with regard to percentage of disablement, is to the following effect:- 1. Clinical relationship of the disability with service condition or otherwise Disability Attributable to service (Y/N) Aggravated By Service (Y/N) Not connected with service (Y/N) Reason/ case specific conditions and period in service (a) Primary HYPERTENSION No YES No Due to stresses strains of mil service. 1. What is percent degree of disablement as compared with a healthy person of the same age and sex? (Percentage will be expressed as Nil of as follows):- 1-5%, 6-10%, 11-14%, 15-19% and thereafter in multiples of ten from 20% to 100%. Disability assessment (As numbered in disabilities with Question 1 part II Percentage of disablement Probable duration of this degree of disablement Composite for all duration (Max 100%) (a) Primary 30% Permanent 30% (b) (c) (d) Sd/-x x x x MANOJ PAPRIKAR Maj. Sd/- x x x x (Ms. Vandana Negi) Lt. Col. 11. From the above, it is clear that disability of the appellant was aggravated by military service and percentage of disability was 30%. Para 5 of the Order of the Government dated 19.05.2017 provides that claim for grant of disability element in affected cases will be submitted to the PSA concerned by PCDA(O) Pune/ NPO/AFCAO/ Record office along-with copy of medical board/ fresh medical board proceedings showing extent of disability applicable as on date of effect of this letter in respect of Commissioned officers/ JCOs/ ORs. Para 7 of the order mentions that “The provisions of this letter shall take effect from 01.01.2006.” 12. Thus, the disability for the purposes of the order dated 19.05.2017 has to be looked into on the date of 01.01.2006. The said conclusion is also decipherable from Para 3 of the order. 13. From the above, it is clear that Release Medical Board (Annexure A/14) adjudicated the appellant’s disability at 30%, which disability has been held to be permanent in nature. The appellant who appears in person makes a statement that he has not taken any lump sum compensation in lieu of disability. We have no reason not to accept his statement. 14. The appellant thus fulfils all the three conditions for grant of disability pension. In above view of the matter, we are of the view that appellant is fully covered by the order of the Government dated 19.05.2017. Appropriate steps be taken in accordance with Para 5 for grant of disability pension. We, however, make it clear that it shall always be open for the respondents to assess the percentage of the disability of the appellant by convening a Medical Board to find out whether the disability percentage is 20% or less. It will be open to the respondents to discontinue the claim from any future date when they on the basis of any medical report are of the view that the disability has gone below 20%. 15. In so far as the case of “AGI Disability” as prayed by the appellant before us, a perusal of the order of the Tribunal rejecting the claim does not indicate that the said claim was pressed before the Tribunal. In the Review Petition also, the appellant does not appear to have pressed the said claim. We, thus, do not find it necessary to consider the said claim in these appeals. However, liberty is reserved to the appellant to file a Review Petition before the Tribunal, in event, the claim was pressed and not considered. EX. LT. COL. R.K. RAI v. UNION OF INDIA & ORS. [ASHOK BHUSHAN, J.] 16. In result, the civil appeals are allowed. Judgment and order of the Tribunal dated 20.09.2013 and 11.06.2014 are set aside. The respondents are directed to process the claim of the appellant as per the Government order dated 19.05.2017 in light of the observations as made above. Divya Pandey Appeals allowed.