Admitted.
2. Post admit notice waived by Mr. S.D Windlesh, learned counsel appearing for the respondents. Service is thus complete.
3. Heard the learned counsel for the parties.
4. The applicant had laid challenge to order of the respondents at Annexure A-1, dated 10.4.2017 which has denied him broad banding of disability on the grounds that he had retired prematurely from service on 20.11.2010
5. The applicant who was commissioned on 20.12.1986, suffered an injury, consequent to which he was declared as a case of Estibular Neuromitis (R). His Release Medical Board opined that the applicant was a permanent category for this disability which was assessed at 20% for life. The disability was held as attributable to Military service. The applicant took pre-mature retirement on 2011, 2010, in the rank of Lt. Col. and was granted disability element of pension @ 20% for life. He has now contended that based on the Government policy as well as judgments on this issue, he is entitled to broad banding of this disability element of pension from 20% to 50%.
6. Relying on the decision of the Hon'ble Supreme Court in Dharamvir Singh v. Union of India, (2013) 7 SCC 316, learned counsel for the applicant submits that the applicant got the disease during his service and it was aggravated due to service and, therefore, the applicant is entitled to disability element of pension. Learned counsel for the applicant has also submitted that since the issue relating to the grant of benefit of broad-banding to persons other than those who are invalided out of service is no longer res integra in view of the judgment of the Hon'ble Supreme Court in Union of India v. Ram Avtar in C.A No. 418 of 2012 dated 10.12.2014, the respondents cannot deny the benefit of “broad banding” of the disability element of pension to the applicant, as has been done by the impugned order.
7. The learned counsel for the respondents, on the other hand, has submitted that since the applicant was not invalided out from service, he is not entitled to the benefit of “broad banding”, pursuant to the Government notification dated 31.01.2001
8. The aspect of grant of disability element of pension to persons who have retired pre-maturely has been set to rest by the Government of India, MoD's own circular of 29 September, 2009 and related to the date of applicability AFT judgment in the case of Maj. (Retd.) Rajesh Kumar Bhardwaj v. Union of India, OA 336 of 2011 holds the field. Further, the issue relating to grant of the benefit of “broad banding” pursuant to the Government notification dated 31.01.2001 to persons other than those who are invalided out from service is no longer res integra, since the Hon'ble Supreme Court in the judgment in Ram Avtar (supra) has held that persons who are not invalided out of service are also entitled to the benefit of the aforesaid decision of the Government dated 31.01.2001
9. In view of the above, we are of the opinion that the applicant is entitled to the disability element of pension at the rate of 20% broad banded to 50%. Therefore, we allow the O.A setting aside the impugned order dated 10.04.2017 and directing the respondents to grant the applicant the disability element of pension at the broad banded rate of 50%, however, he will be entitled to the arrears only for three years prior to the date of filing of the instant O.A i.e 13.04.2017 The arrears would carry interest @ 9% per annum from the aforesaid date till the date of payment. To avoid punitive costs, in the event of non-compliance of the order, the arrears with interest shall be paid within four months from today positively.
10. The O.A is accordingly allowed. No costs.
11. Learned counsel for the respondents has made an oral request for grant of leave to appeal before the Hon'ble Supreme Court. We find no question of law of general public importance involved in the matter to grant leave to appeal. Hence, the request for leave to appeal before the Hon'ble Supreme Court is declined.