12.04.2010
1. Applicant by the present original application has prayed that impugned Intelligence Head Quarters of MOD (Army), Adjutant Generals Branch letter dated 29.05.2009 and Defence Security Corps Records letter dated 16.06.2009 may be quashed and respondents may be directed to pay the disability element of OA No.185/2009 pension at the rate of 50% and service element as applicable with 12% compounded rate of interest.
2. Brief facts which are relevant for the disposal of present original application are that applicant was re-enrolled in D.S.C. on 07.09.1988 and he was a service pensioner of Bengal Engineer Group. Due to arduous and prolonged hours of duty, he developed cervical spondylosis in April, 1990. He was placed in medical category CEE (temp) which was made CEE permanent (P) with effect from 01.04.1991. Despite this low medical category CEE (P), he was not given any sheltered appointment. He requested for light duties as per his health condition but his request was ignored. Therefore, he applied for discharge due to medical grounds/health condition on 29.10.1997. His request for discharge on compassionate ground was acceded by the Authorities and he was discharged on 30.10.1998 in medical category CEE with 20% disability for the period of 2 years which was classified as aggravated due to stress and strain of service. Therefore, he sought disability pension alongwith service element of pension. He made the request for disability element of pension OA No.185/2009 but same was rejected. Therefore, he made several representations but without any result. Ultimately, he approached this Tribunal by filing present original application.
3. Learned counsel for respondents submitted that this case is extremely belated. He was discharged in the year 1998 and he filed the present case in the year 2009.
4. It is true that present original application is belated but our attention has been invited to recent order of the Government dated 29th September, 2009 issued on the basis of recommendations of 6th Central Pay Commission that a person is entitled to disability pension whether sought voluntarily discharge or otherwise on account of disability. This has been made effective from 01.01.2006. The said order reads as under:- No.16(5)/2008/D(Pen/Policy) Government of India Ministry of Defence Deptt. of Ex-Servicemen Welfare New Delhi, 29th Sept. 2009. The Chief of Army Staff, The Chief of Naval Staff, OA No.185/2009 The Chief of the Air Staff Sub: Implementation of Government decision on the recommendations of the Sixth Central Pay Commission- Revision of provisions regulating pensionary awards relating to disability pension/war injury pension etc for the Armed Forces Officer and personnel below officer rank (PBOR) on voluntary retirement/discharge or own request on or after 1.1.1996. Sir, The undersigned is directed to refer to Note below Para 8 and Para 11 of this Ministrys letter no.1(2)/97/D(Pen-C) dated 31.01.2001, wherein it has been provided that Armed Forces personnel who retire voluntarily or seek discharge on request shall not be eligible to any award on account of disability.
2. In pursuance of Government decision on the recommendation of the Sixth Central Pay commission vide para 5.1.69 of their Report, President is 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 1.1.2006.
4. Pension Regulations for the three Services will be amended in due course.
5. This issues with the concurrence of Ministry of Defence (Fin) vide their U.O. No.3545/(Fin/Pen) dated 29.9.2009.
6. Hindi version will follow. Yours faithfully, (Harbans Singh) Director (Pen/Policy)
5. This Tribunal as well as Hon'ble Delhi High Court have also taken the view that both are admissible. As per decision of Hon'ble Delhi High Court in the case of Mahavir Singh Narwal vs. OA No.185/2009 Union of India [111(2004) DLT 550] it was held that the voluntarily discharge will not disentitle disability pension to the incumbent and this has been affirmed by the Hon'ble Supreme Court while dismissing the SLP filed by Union of India on 04.01.2008. Now question whether the incumbent who has taken voluntarily discharge is entitled to disability pension or not, is no more res integra because of the order dated 29th September, 2009 whereby the Government has granted the disability pension to the incumbent who sought discharge voluntarily or otherwise but with rider that this shall be made effective from 01.01.2006. The disability of the applicant was for the period of 2 years. But it is pre 01.01.2006 matter therefore this order will not govern the applicants case. But in view of decision in Mahavir Singh Narwal (Supra), applicant is entitled to disability pension including service element of pension for the period of 2 years from the year 1998 as advised by medical board. Learned counsel for applicant has further submitted that in view of 31st January, 2001 Government Order which has been made effective from 01.01.1996, as per para 7.2., percentage of disability being less than 50% than it should be reckoned 50%. Applicants disability which is 20% less than 50% may be rounded up to 50%. The contention of the OA No.185/2009 learned counsel for applicant appears to be correct and we uphold the same that 20% be rounded upto 50%. This amount shall be calculated and be released to the petitioner with arrears with interest @12% per annum.
7. Since the disability of the applicant is recommended by the medical board for the period of 2 years only and he was not summoned back by the Authorities for Resurvey Medical Board after expiry of 2 years to assess whether he is still suffering with 20% disability or not, respondents are directed to conduct the Resurvey Medical Board within 2 months from today and in case Resurvey Medical Board find that applicant is still suffering from disability to the extent of 20% then Authorities shall reconsider his case for grant of disability pension in accordance with order dated 29th September, 2009. But we reject the contention of the applicant that once a disability is declared it should be life long as it is not correct. The Government order of 07th February, 2001 para 2 only attached the finality of Medical Board/Release Medical Board, if approved by next higher Medical Authority and not for life as alleged by applicant. OA No.185/2009
8. The present original application is accordingly disposed of with no order as to costs. A.K. MATHUR (Chairperson) M.L. NAIDU (Member) New Delhi April 12, 2010.