MA No.101 of 2013:-
1. The amendments sought to be carried out in Paras 2 & 6 of the O.A. by giving better particulars as ordered by this Tribunal on 01.10.2012, are allowed and the MA stands disposed of.
2. By means of the present petition, the petitioner has sought directions to the respondents to grant him disability pension @ 20% with benefit of broad-banding and rounding-off of the disability element to 50% from the date of his discharge i.e. 31.07.2008, onwards for life.
3. The admitted facts of the case are that the petitioner was discharged from service under the India Air Force (IAF) on and with effect from 31.07.2008 after rendering 20 years and 11 days of service. Prior to his discharge from service, a Release Medical Board was held which assessed the disability as 'RT RENAL CALCULUS (OPTD) WITH RECURRENCE (POST ESWL) (old) (Z 09.0)' at 20% for life but held it as neither attributable to, nor aggravated by service i.e. NANA. The pension sanctioning authority i.e. AOC, AFRO rejected the disability pension claim of the petitioner on 01.11.2007. Hence the present O.A.
4. In the reply filed, the respondents have justified rejection of the claim of the petitioner on the ground that he was discharged from service on completion of his tenure and was not invalided out. Insofar as the claim of broad-banding is concerned, it is contended that it is available only in invalidment cases. In support of the stand taken, the respondents have placed reliance on the decision of the Apex Court in P K KAPUR VS. UNION OF INDIA (2007) 9 SCC 425 and have prayed that the O.A. may be dismissed.
5. On consideration of this case by going through the pleadings of the parties and hearing arguments addressed by the ld. Counsel, we find that the stand taken by the respondents is totally untenable. The reliance placed by the respondents on P.K.Kapur’s case (supra) is also totally misconceived. We fail to understand as to why the respondents are harping upon an old decision to reject the rightful claim of the petitioner which deserves to be granted in accordance with the prevalent law on the subject.
6. On merits of the case, we find that the twin issues involved in the present O.A; firstly, the issue regarding grant of disability to the petitioner and, secondly, the grant of the benefit of broad-banding by rounding off of the disability element, are not longer res integra.
7. Insofar as the claim for grant of disability pension is concerned, we are firm in our view that the claim of the petitioner is covered by the decision of the Apex Court in DHARAMVIR SINGH VS. UNION OF INDIA & ORS. 2013 STPL(Web) 498 SC . For the sake of brevity we consider is appropriate not to give in detail the principles enunciated and the elaborate reasoning recorded therein and just applying its ratio to the facts of the present case, we draw a presumption in favour of the petitioner that the disability suffered by him which originated during service of the petitioner in 1991 and was assessed as 20% for life by the RMB, is attributable to and aggravated by the IAF service particularly when the Medical Board recorded no reasons to hold the disability of the petitioner as NANA. It is also not the case of the respondents that the petitioner was not enrolled in a fit medical condition or that the disability suffered by him is such as could not be detected on medical examination at the time of recruitment. The principles laid down in the said authoritative pronouncement have also been followed by the Apex Court in rendering decisions subsequently in the following cases:-
(i) Union of India vs. Rajbir Singh, Civil Appeal No.2904 of 2011, decided alongwith the connected CAs on 13.02.2015;
(ii) Union of India & Ors. vs. Angad Singh Titaria, Civil Appeal No.11208 of 2011, decided on 24.02.2015.
Bound by the law laid down by the Apex Court, this Tribunal has also rendered numerous decisions in cases similar to the case of the petitioner herein. We, therefore, hold that the respondents have wrongfully rejected the claim of the petitioner for disability pension and the relief prayed for deserves to be granted to him by allowing the present O.A.
8. The plea of the respondents that the benefit broad-banding is available only in invalidment cases is also untenable and has no legs to stand. The question whether the benefit of broad-banding is admissible only to those who were invalided out or also to those who are released in Low Medical Category with disability pension or discharged on completion of term or retired on superannuation with disability pension, was conclusively settled in judgment dated 04.08.2010 of this Tribunal in OA No.329 of 2010, titled Lt Gen Vijay Oberoi v. Union of India and others. Accordingly, the benefit of broad-banding is now admissible not only to those who are invalided out but also to the disabled, released, discharged, retired and superannuated persons from the date of release from service, since the reason behind broad-banding was to curtail the subjectivity of medical boards, which equally applied to both who were invalided out as well as to those who were discharged, released or retired on completion of tenure with disability pension. This controversy has also been set at rest by the Apex Court in Civil Appeal No.418 of 2012, titled Union of India vs. Ram Avtar decided on 10.12.2014 alongwith the other connected matters. The question involved therein was '… whether or not, an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding-off of disability pension.' . The contention of the appellant(s) therein was that on the basis of Circular No.1(2)/97/D(Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available only to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel, mentioned above. On consideration of the matter, the Hon’ble Supreme Court held as under:-
'6. We do not see any error in the impugned judgment(s) and order(s) and therefore all the appeals which pertain to the concept of rounding-off of the disability pension are dismissed, with no order as to costs.
7. The dismissal of these matters will be taken note of by the High Courts as well as by the Tribunals in granting appropriate relief to the pensioners before them, if any, who are getting or are entitled to the disability pension.'
9. Consequently, this OA is allowed. The impugned order dated 06.11.2007, vide which the claim of the petitioner for grant of Disa
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bility Pension has been rejected, is hereby quashed and set aside with a direction to the respondents to grant this benefit to the petitioner with effect from 01.08.2008 i.e. the day following the date of his retirement from service together with the benefit of rounding-off, from 20% to 50% for life, by issuing the requisite PPO. 10. The respondents are also directed to calculate and release the monetary benefit accrued to the petitioner by issuing a Government sanction within a period of three months from the date of receipt of a certified copy of this order by the ld. Counsel for respondents, failing which, the arrear amount shall carry interest @ 8 % per annum from the due date, till actual payment thereof. 11. No order as to costs.