ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR -.- OA 2952 of 2012

Transcription

1 OA 2952 of ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR OA 2952 of 2012 Col (Retd) SPS Bedi Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr. Rajeev Anand, Advocate For the Respondent(s) : Ms. Renu Bala Sharma, CGC. Coram: Justice Rajesh Chandra, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. JUDGMENT The prayer in this petition is for grant of disability pension. The case of the petitioner is that he was commissioned in the Indian Army on and at the time of commission was in medical category SHAPE-1. In the year 1990 while posted at high altitude area at Nathula (Sikkim) under 27 Mountain Division, he was diagnosed as a case of ANKYLOSING SPONDYLITIS SPINE. In 1994 with the deterioration of the disability he was brought before the Medical Board on Subsequently he was placed in permanent low medical category after completion of 26 years of service and then the petitioner applied for pre-mature retirement. He was brought before the Release Medical Board on and was found to be suffering from the aforesaid disease. The Board opined that the disease has aggravated due to stress and strain of the service conditions in cold environment. The disability was assessed at 30% for two years. After retirement the petitioner was allowed only the service pension but the claim for disability pension was rejected on the ground that the petitioner had proceeded on pre-mature retirement and

2 OA 2952 of as such is not entitled for the same under Regulation 50 of the Pension Regulations for the Army, 1961 (Part-I). The notice of the petition was accepted by Ms.Renu Bala Sharma, CGC and she instead of filing a reply to the petition stated on that the reason for disallowing the disability pension has been mentioned in paper no. 19 filed by the petitioner and the same may be taken as the reply of the respondents. The paper no. 19 of the Court file is a letter from Additional Directorate General Personnel Services dated by which the petitioner has been informed that he is not entitled for disability pension as per Regulation 50 of the Pension Regulations for the Army, 1961 as he had proceeded on premature retirement. We have heard the learned counsel for the petitioner as well as the respondents. During the course of arguments, the learned counsel for the petitioner has drawn our attention to the judgment of the Armed Forces Tribunal Principal Bench at New Delhi in OA No. 336 of 2011 (with OA Nos. 205/11 & 189/11) Maj (Retd) Rajesh Kumar Bhardwaj v. UOI and others dated and argued that vide Notification dated , the Government has allowed the benefit of disability pension to the persons who retired/discharge on or after irrespective of the fact that they sought voluntary retirement. We have gone through the judgment of the Principal Bench. In that case, the petitioner Major (Retd) Rajesh Kumar Bhardwaj was commissioned in Indian Army on During military service he was found suffering from two disabilities namely Tear Anterior Cruciate Ligament and Medical Meniscus (Left) and was placed in

3 OA 2952 of Low Medical Category. He then applied for premature retirement after 15 years of service which was approved vide order dated In the Release Medical Board held on the petitioner was found suffering from the above-said two disabilities attributable to and aggravated by military service and the percentage of disability was assessed at 60% composite. The petitioner of that case had made a representation for grant of disability pension but the same was rejected on the ground that as per the terms of Regulation 50 of the Pension Regulations 1961, the petitioner was not entitled for the disability pension as he had sought voluntary retirement. The petitioner then challenged the order of denial of disability pension before the Hon ble Delhi High Court from where the case was transferred to the Principal Bench. The said case was initially dismissed by the Principal Bench vide order dated on the basis of the judgment of the Hon ble Supreme Court in Union of India and others v. Ajay Wahi SCC 2010 (11) 213. However, a review application was filed by the petitioner and it was brought to the notice of the Principal Bench that the Government vide Notification dated has extended the benefits of disability pension to the personnel who retired /discharged on or after irrespective of the fact that they have sought voluntary retirement. The review application was decided with the observation that the petitioner may make a representation to the authorities in pursuance of the aforesaid notification dated The petitioner then made a representation which was rejected by the respondents Union of India and others on the ground that the disability pension is not admissible to the petitioner as he had retired prior to The petitioner Maj (Retd) Bhardwaj then filed OA No. 336

4 OA 2952 of of 2011 challenging the said Notification dated and making a prayer that the pre and post distinction of may be quashed from the above said notification being violative of Article 14 of the Constitution of India. The Hon ble Principal Bench referred the following judgments of the Hon ble Supreme Court and the Principal Bench: 1) Union of India and another v. SPS Vains and others 2008 (9) SCC 125; 2) KJS Buttar v. UOI and another (2011)11 SCC 429 3) OA No.139 of 2009 Lt Col PK Kapur (Retd) v. UOI decided on by the Principal Bench of Armed Forces Tribunal. The Principal Bench then quoted the said Notification dated which runs as under: No. 16(5)/2008/D(Pen/Policy) Government of India Ministry of Defence Deptt. Of Ex-Servicemen Welfare New Delhi 29th Sept To The Chief of the Army Staff The Chief of the Naval Staff The Chief of the Air Staff Subject : Implementation of Government decision on the recommendation of the Sixty Central Pay Commission Revision of provisions regulating Pensionary Awards relating to disability pension/war injury pension etc. for the Armed Forces Offices and personnel Below Officer Rank (PBOR) on voluntary retirement/discharge on own request on or after Sir, The undersigned is directed to refer to Note below Para 8 and Para 11 of the Ministry s letter No. 1(2)/97/D()Pen-C) dated , wherein it has been provided that Armed Forces personnel who retire voluntarily or seek discharge on request, shall not be eligible for any award on account of disability. 2. In pursuance of Government decision on the recommendations of the Sixty Central Pay Commission vide Para of their Report, President if pleased to decide that Armed Forces personnel who are retained in service despite disability, which is accepted as attributable to or aggravated by Military Service and have foregone lump-sum compensation in lieu of that disability, may be given disability element/war injury element at the time of their retirement/discharge whether voluntary or otherwise in addition to Retiring/Service Pension or Retiring/Service Gratuity. 3. The provisions of this letter shall apply to the Armed Forces personnel who are retired/discharged from service on or after

5 OA 2952 of Pension Regulations for the three Services will be amended in due course. 5. This issue with the concurrence of Ministry of Defence (fin.) vide their U.O. No. 3545(fin/Pen) dated Hindi version will follow. Copy to :- As per standard list. Yours faithfully, (Harbans Singh) Director (Pen/Policy) The Principal Bench then observed as under: As per this notification, the benefit has been extended to the Armed Forces personnel as mentioned in paragraph no. 2 of this notification but in paragraph no. 3, they have said that this will be applicable from i.e. the persons who have sought voluntary retirement on or after will be benefited and rest will not be benefited. Petitioner has retired prior to , therefore, he has been denied the benefit on account of cut-off date as per notification dated The Principal Bench then quoted the Notification dated relating to the personnel below officer rank (PBOR) which runs as under: Tele Addl Dte Gen Personnel Services Adjutant General s Branch Integrated HQ of MoD (Army) DHQ PO, New Delhi B/39022/Misc/AG/PS-4 (L)/BC All Legal Cells All line Dtes GRANT OF DISABILITY PENSION TO PREMATURE RETIREMENT CSES PROCEEDING ON DISCHARGE PRIOR TO 01 JAN Further to this office note No. A/39022/Misc/AG/PS-4(Legal) dt 22 Feb 2010 on subject matter. 2. It is clarified that as and when a pre-2006 retiree PROB files a court case to claim disability pension which was denied to him merely because he had proceeded on Pre-Mature Retirement, such cases will

6 OA 2952 of be immediately processed for Government Sanction through respective Line Dtes and Not contested. Government Sanctions in which cases will also be proposed in the same manner as that followed in cases of Government Sanctions issued in compliance of court cases. 3. This arrangement will be affective till MoD/D(Pen/Legal) formulated and issues comprehensive Govt orders. 4. It is re-iterated that only those cases where disability pension was denied to a PBOR solely on the grnds that he had proceeded on PMR will be processed for sanction and will not be contested. Which implies that as and when a PBOR files a case of similar nature their case files will be processed for Govt sanction without awaiting court order. 5. Contents of this letter are not applicable to offers as PRA, Rule 50 has been upheld by Hon ble Supreme Court in judgment dt 06 July 2010 in case of Lt Col Ajay Wahi (SLP. No /2004, Civil Appeal No. 1002/2006). 7. All lime Dtes are requested to give vide publicity to this letter amongst all Record Offices. (Ajay Sharma) Col Dir Ag/PS-4 (Legal) For Adjutant General Copy to: MoD/D(Pen/Legal) JAG Deptt After considering the said letters dated and , the Principal Bench made the following observations:- It has been clarified that as and when a pre 2006 retiree PBOR files a court case to claim disability pension which was denied to him merely because he had proceeded on Pre-Mature Retirement, such cases will be immediately processed for Government sanction through respective Line Dtes and not contested. Government sanctions in which cases will also be processed in the same manner as that followed in cases of Government sanctions issued in compliance of court cases. That means Government has relaxed the condition for the PBOR, even if they sought voluntary retirement prior to 2006 they will not be denied the benefits of disability pension as per rules. If the Government can show benevolence for PBOR then why not same benefit can be given to the officers who are far less in number than PBOR. The plea of the respondents of financial constraints is exploded. The number of PBOR who sought voluntary retirement pre 2006 would be hundred times more than that of officers. Therefore, we think that plea taken by the Government of financial constraints is nothing but an afterthought to somehow justify the administrative action. When this benefit has been extended to PBOR, we see no reason why it should not be released to the officer. More so, the justification of financial constraints pleaded by the respondents is exposed on account of that they have released the benefit to the PBOR which are larger number than that of officer. Therefore, in our opinion, this artificial distinction which has been sought to be made of pre and post is without any rational basis. It is only a ploy to deprive the benefits of disability pension to the officers rank.

7 OA 2952 of The Principal Bench then struck down the clause 3 of the Notification dated and held that it will be open to the petitioner to make the representation to the authority to seek the disability pension benefit in terms of the aforesaid circular and also directed the Government to examine the matter and pass appropriate order in accordance with law. We have given our thoughtful consideration to the facts of the present case and have also considered the judgment of the Principal Bench and we feel that there is no reason to take a different view than the one which has been taken by the Principal Bench in the aforesaid judgment. Thus, clause 3 of the Notification dated is struck down being violative of Article 14 of the Constitution of India. The petition is disposed of with a direction to the petitioner that if he so wishes he may make a representation to the authorities concerned seeking disability pension benefit in terms of the aforesaid letter/circular dated If any such representation is made by the petitioner then the Government will examine the matter and will pass appropriate order in accordance with law. (Justice Rajesh Chandra) raghav (Air Marshal (Retd) SC Mukul) Whether the judgment for reference is to be put on internet? Yes