A.C.A. Adityan, Member (J):
1. The applicant challenging the impugned order rejecting his claim for disability pension had approached the Honourable High Court of Kerala at Ernakulam by way of filing Writ Petition (Civil) No.35353/2008, which has subsequently been transferred to this Armed Forces Tribunal, Regional Bench, Kochi under Section 34 of the Armed Forces Tribunal Act 2007, after the constitution of the same, and renumbered as T.A.No.117 of 2010.
2. The averments in the affidavit to the application in brief are as follows: The applicant was enrolled in the Army on 14.6.1963 and he was boarded out of service on 31.10.1984. The applicant was granted disability pension as a case of 'Acute Lumbago-203' at a degree of disablement of 20% for two years. Subsequently, the disability pension was extended to 10 years as per medical board proceedings. On appeal, the Medical Board without any clinical evidence has discontinued the disability pension stating that disability is less than 20% and hence not eligible for disability pension. The medical board examined the applicant on 20.8.2006 and recommended for surgery for the reason that his condition has worsened. On the same day another doctor diagnosed the applicant as a case of Acute Lumbago and has held that his condition remains unchanged after the first medical board. The Medical Board also conducted examination of the applicant on 25.8.2006 and diagnosed as Acute Lumbago and held that his condition has worsened since the last Board. Since there is contradiction between the opinion of the Medical Board the proceedings of the Medical Board cannot be treated as a valid evidence. In support of his contention, the learned counsel appearing for the applicant has also produced Exts.P1 to P8. Even though the applicant would state in his application that his second appeal preferred under Ext.P8 was not yet disposed of, the learned Central Government Counsel would state that the second appeal was already disposed of on 21.5.2009 and copy of the order is produced as Ext.R3(n). Hence, this application for disability pension.
3. The respondents in their counter/reply statement would contend that since the application has been preferred after inordinate delay, the same is liable to be dismissed, and would further contend that disability pension of the applicant was discontinued with effect from 19.2.1996 since the Medical Advisor (Pension) was of the opinion that medical category of the applicant is less than 20% (15-19%). The applicant was placed in low medical category, BEE (Permanent) on 26.8.1983 and was discharged from service with effect from 1.11.1984 under Rule 13(3)III(i) of the Army Rule 1954 and consequently discharge order dated 5.8.1984 vide No.2883/CA-3/3 was passed [Annexure R3(a)]. At the time of discharge, the Release Medical Board of the applicant was held at 148 Base Hospital, which opined that disability was aggravated by military service but categorised his disability at 15-19%. However, the Principal Controller of Defence Accounts (Pension), Allahabad had assessed the medical category of the applicant as 20% and paid disability pension for two years. The details are as follows:
| Sl. No. | Date of Board | Name of Board | Disability regarded by Board | % of disability recommended by Board | % of disability accepted by PCDA (P) Allahabad | PPO No./ Rejection Lr. No. of PCDA (P) Allahabad |
| (a) | 31.5.1984 | Release Medical Board | Aggravated | 15-19% | 20% | PPO No.D/ 3911/84 dt 19 Nov.84 (01.11.84 to 30.5.86) |
| (b) | 19.2.1996 | Re â Survey Medical Board | - do - | 20% | 20% | PPONo.D/RA/7960/86 dt 23 Jun.86 (31.5.86 to 18.2.96) |
| (c) | 30.10.1995 | - do - | - do - | 20% | 15-19% | Rejection Lr.No.G3/ RA/12/95/11814/II dated 08 Mar.1996. |
| (d) | 16.6.2000 | - do - | - do - | 15-19% | 15-19% | Rejection Lr.No.G3/ RA/9/2000/9731/II dated 31 Oct.1996. |
| (e) | 23.8.2003 | - do - | - do - | 15-19% | 15-19% | Rejection Lr.No.P/6296107 /RSMB/NER dated 19 Dec.2003. |
| (f) | 22.8.2006 | -do- | -do- | 15-19% | 15-19% | Rejection Lr.No.P/ 6296107/RSMB/NER dated 19 Sep.2006 |
4. We heard the learned counsel appearing for the applicant as well as Sri.Tojan J.Vathikulam, Central Government Counsel and also Major Varun Arora, Legal Officer for the Army and considered their respective submissions.
4A. The point for determination in this case is whether the reason assigned by the respondents for discontinuation of the disability pension with effect from 19.2.1996 on the ground that the medical category has been assessed by the AFMC Pune at below 20% is justifiable under the impugned order?
5. The point:- There is no dispute that the applicant was suffering from 'Acute Lumbago-203' and that the applicant was discharged under Army Rule 13(3)III(i) read with sub-rule (2A) after rendering a total service of 21 years and 140 days. The admitted case of the applicant is that he was paid disability pension till 19.2.1996 and thereafter it was stopped by the impugned order of the respondent on the ground that medical authority have opined that medical category of the disability of the applicant has been assessed below 20% (15-19%). The reasoning assigned for discontinuing the disability pension by the respondent under the eye of law is valid or not is to be considered now. The relevant Government Order on the issue is G.O. No.1(2)/97/D (Pen-C), Government of India, Ministry of Defence, New Delhi dated 31st January, 2001. Para 7.2 of the said G.O. reads as follows:
âWhen an Armed Forces Personnel is invalided out under circumstances mentioned in Para 4.1 above, the extent of disability or functional incapacity shall be determined in the following manner for the purposes of computing the disability element:
| Percentage of disability as assessed by Invaliding Medical Board | Percentage to be reckoned for computing of disability element |
| Less than 50 | 50 |
| Between 50 and 75 | 75 |
| Between 75 and 100 | 100â. |
â4.1 For determining the pensionary benefits for death or disability under different circumstances due to attributable/aggravated causes, the cases will be broadly categorised as follows:
Category A
Death or disability due to natural causes neither attributable to nor aggravated by military service as determined by the competent medical authorities. Examples would be ailments of nature of constitutional diseases as assessed by medical authorities, chronic ailments like heart and renal diseases, prolonged illness, accidents while not on duty.
Category B
Death or disability due to causes which are accepted as attributable to or aggravated by military service as determined by competent medical authorities. Disease contracted because of continued exposure to a hostile work environment, subject to extreme weather conditions or occupational hazards resulting in death or disability would be examples.
Category C: xxxx
Category D: xxxx
Category E: xxxx.â
The case of the applicant squarely comes within category B referred to above. It is pertinent to note here that even though the medical board has assessed the medical category of the disease suffered by the applicant as 20% on 30.10.1995, PCDA (P) Allahabad even without examining the applicant has reduced the percentage of disability to less than 20% (15-19%) and because of the impugned rejection letter No. G3/ RA/12/95/11814/II dated 08 Mar.1996, the disability pension awarded to the applicant was discontinued with effect from 19.2.1996.
5A. The next point to be clarified in this order is even though the Government Order referred to above dated 31st January, 2001 is said to have come into effect from 1.1.1996, the judgment of the Apex Court in Civil Appeal No.5591 of 2006 in K.J.S.Buttarv. Union of India (decided on 31st March 2011), after referring to the cases like Union of India and Anr vs. C.S. Sidhu 2010 (4) SCC 563, Union of India and Anr vs. Deoki Nandan Aggarwal, 1992 Suppl.(1) SCC 323, State of Punjab v. Justice SS Dewan, 1997(4) SCC 569 and Union of India vs. S.P.S. Vains (Retd) and Ors, 2008 (9) SCC 125 has observed in the following lines.
â13. In Unionof India and Anr. vs. S.P.S. Vains (Retd.) and Ors, 2008 (9) SCC 125, it was observed as follows:
â26. The said decision of the Central Government does not address the problem of a disparity having created within the same class so that two officers both retiring as Major Generals, one prior to 1.1.1996 and the other after 1.1.1996, would get two different amounts of pension. While the officers who retired prior to 1.1.1996 would now get the same pension as payable to a Brigadier on account of the stepping up of pension in keeping with the fundamental rules, the other set of Major Generals who retired after 1.1.1996 will get a higher amount of pension since they would be entitled to the benefit of the revision of pay scales after 1.1.1996.
27. In our view, it would be arbitrary to allow such a situation to continue since the same also offends the provisions of Article 14 of the Constitution.
28. The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in D.S.Nakara where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion, those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, in as much as, the Pension Rules being statutory in character, the amended Rules specifying a cut off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rationale principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules but was counter productive and ran counter to the very object of the Pension Scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution.
30. However, before we give such directions, we must also observe that the submissions advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S.Nakara case. The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise, would cause violence to the provisions of Article 14 of the Constitution. It would not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other officers belonging to the same cadre would be receiving a higher pensionâ.
6. So, as per the above dictum of the Honourable Apex Court, application of the benefits conferred under G.O. No.1(2)/97/D (Pen-C) dated 31.1.2001 shall be extended to the applicant also, who was discharged on 31.10.1984. Under such circumstances, we hold that the impugned order is liable to be set aside and the applicant is entitled to disability pension after 19.2.1996 also. The point is answered accordingly.
7. In fine, the impugned order under challenge is set aside. It is declared that the applicant is entitled to disability pension as per rules from 19.2.1996 onwards. For compliance â three months. No costs.