By way of this application, the applicant seeks condonation of delay of 2872 days in filing the OA. In view of the law laid down by the Hon'ble Supreme Court in the case of Union of India v. Tarsem Singh, (2009) (1) AISLJ 371, delay in filing the OA is condoned.
Accordingly, M.A. No. 807 of 2017 stands disposed of.
O.A. No. 1062 of 2017:
By way of the present OA filed under Section 14 of the Armed Forces Tribunal Act, 2007, the applicant claims disability pension @ 20% for two years, as assessed by RMB to be broad-banded to 50% with effect from 09.08.2009 along with arrears and interest @ 18% per annum.
2. The applicant was commissioned in the 62 Cavalry of Armoured Corps of Indian Army on 11.12.1999. During the service, he was diagnosed as a case of Idiopathic Palmoplantar Hyperhidrosis and placed in low medical category. Due to his deteriorated health condition, the applicant became unfit to undertake excessive physical and mental strain and became unable to discharge his duties properly, thus, he applied for release from service. The respondents accepted his application of release from service vide IHQ MoD (Army) MS Branch letter No. 33002/046/149/MS PR dated 12.05.2009 and the applicant was relieved from the service on 09.08.2009. The Release Medical Board held before his release, held the disability as ‘IDIOPATHIC PALMOPLANTAR HYPERHIDROSIS’ @ 20%for two years, as aggravated due to stress and strain of military service. Despite this, the applicant was denied the disability pension. The applicant referred to Govt., order dated 29.09.2009, vide which, the officers seeking premature retirement were held eligible for disability pension.
3. Reference was also made by the applicant to the judgment dated 07.02.2012 of this Tribunal in Major Rajesh Kumar Bhardwaj v. Union of India [O.A. No. 336 of 2011], wherein the cut-off date was set aside and all officers were found eligible for disability pension irrespective of the date of retirement/release w.e.f. 01.06.2006 and the judgment of Hon'ble Delhi High Court in Mahavir Singh Narwal v. Union of India, 111 (2004) DLT 550, wherein it was held that the voluntarily discharge will not disentitle the disability pension to the incumbent and this has been affirmed by the Hon'ble Supreme Court while dismissing the SLP filed by the Union of India on 04.01.2008.
4. The applicant received a letter from the respondents on 12.05.2009 stating that his request for resignation was approved and he was relived of his duties w.e.f. 09.08.2009 but the applicant will not be eligible for pension in terms of Regulation 16(b) of Pension Regulations for the Army Part I, 1961. The applicant sent legal notice-cum-representation on 20.02.2017 through his counsel for grant of disability pension. The respondents, vide impugned order dated 24.05.2017, informed that since no pensionary entitlement is admissible on resignation, the provisions of Govt., letter dated 29.09.2009 will not be extended to those proceeding on resignation. Hence, the present O.A.
5. In their counter affidavit, it is not disputed that the applicant was commissioned in Indian Army on 11.12.1999 (PC) and retired from service on 09.08.2009. It is submitted that at the time of his discharge, the officer was brought before the duly constituted Release Medical Board on 14.09.2009 which viewed his disability ‘Ideopathic Plamoplantar Hyperhidrosis R61.0’ @ 20% for two years as aggravated by military service. The respondents contend that since no pensionary entitlement is admissible on resignation, the provisions of Govt., letter dated 29.09.2009 shall not be extended to those proceedings on resignation and thus, he is not entitled to any pensionary and other benefits.
6. We have heard learned counsel for the parties and have perused the record.
7. The claim of the applicant has been denied by the respondents primarily on the ground that since the applicant had resigned from service, therefore, he is not entitled to disability pension.
8. It is not in dispute that the applicant's disability was held aggravated by military service. As regards the denial of the benefit to the applicant on the ground that it was not because of superannuation from service but because of resignation from the service the same cannot be sustained. In this regard, we may refer to the judgment of the Tribunal in Major (Retd.) Rajesh Kumar Bhardwaj v. Union of India [O.A. No. 336/2011] where it was held that the impugned order passed by the Competent Authority is illegal and unjustified and the applicant may be granted disability pension. The issue with regard to resignation was considered by the Principal Bench of AFT in Maj. (Retd.) Charanjit Singh Medi v. Union of India [O.A. No. 603/2016].
Paragraphs 2, 3 and 4 of the said judgment are relevant and are reproduced as under:
“2. In this behalf the respondents have placed on record the Government policy dated 22.11.2001. In terms of the policy it is conveyed that no pension is entitled to an officer leaving the Army before he becomes eligible for pension/gratuity. When an officer seeks to resign voluntarily, irrespective of the length of service he is required to forfeit his gratuity/pension. The argument per se seems be misconceived. Disability pension is granted to a person who has suffered disability attributable to service during the course of his service in the Army.
3. The object of giving disability pension is to compensate the person, who has suffered disability, after he leaves the service. It has no nexus with normal pension. A person is entitled to pension when he completes his pensionable service. Moreover, this issue is no longer res integra. In view of the decision of Mahavir Singh Narwal v. Union of India decided on 05.05.2014, 2005 (1) SLJ 133 Delhi. Same judgment has been relied upon by the Regional Bench at Chandimandir in Kamikkar Singh v. Union of India in OA 67/2014. The co-ordinate Bench of this Tribunal has observed as under:
“In the Fourth Instance, the denial in Sep. 2013 is based on the ground that no pension is admissible on resignation. The issue regarding grant of disability pension to those who resign on compassionate grounds had at this point of time already been settled in the case of Mahavir Singh Narwal in 2012 supra as brought out in para 6.”
4. The Tribunal has relied upon the para 6 of the case Mahavir Singh Narwal v. Union of India which is reproduced herein below:
“On careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. What has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a lower medical category than that in which he was recruited. If it was so, then such person will be treated as invalidated from service.”
9. It is also not disputed that the Special Leave Petition filed by the Union of India against the said order was dismissed not only on the ground of delay but on merits as well.
10. That being so, O.A. is allowed. The applicant is entitled for grant of disability element of pension @ 20% for two years, which is to be broad-banded to 50%in the light of the judgment of the Hon'ble Supreme Court in Union of India v. Ram Avtar [Civil Appeal 418 of 2012] decided on 10 December, 2014.
11. Learned counsel for the applicant submits that for any future period, he will make a representation to the Competent Authority, which, if made, may be considered according to the existing rules.
12. The respondents are directed to release arrears within a period of three months from the date of receipt of the order, failing which, the applicant shall be entitled to interest @ 8% per annum till the date of payment.
13. In view of the above, OA stands disposed of. No order as to costs.