Union of India and Ors. Vs Joginder Lal

Aggrieved by the order dated 27.09.2019 passed by the Armed Forces Tribunal, Regional Bench Chandigarh, Circuit Bench Shimla (in short the “Tribunal”) in O.A. No.1112 of 2019, whereby, the Original Application filed by the respondent herein came to be allowed and directions were passed against the petitioners herein to calculate the arrears of service element of disability

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pension and accordingly, pay the same within three months, failing which, the arrears were to carry an interest @ 8% per annum, the respondents (petitioners herein), have filed the instant petition.

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The parties shall be referred to as they were before the Tribunal.

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The applicant was re-enrolled in the Defence Security Corps. (in short the “DSC) on 19.03.2000 and was discharged from service w.e.f. 01.04.2010 after completion of 10 years and 13 days of service in DSC.

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The applicant suffered injuries: (i) Splinter Injury Brain (ii) Blast Injury Left Eye @ 100% for life w.e.f. 01.04.2010.

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According to the applicant, he was entitled to disability pension consisting of service element and disability element assessed @ 100% w.e.f. 02.04.2010, but the respondents had released only disability element of disability pension to the applicant assessed @ 100% w.e.f. 01.04.2010 and was constrained to approach the Armed Forces Tribunal by filing Original Application for the grant of the following substantive relief:-

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“(i) Directions to the respondents to release service element of disability pension from 01.04.2010 to for life alongwith arrears of the same and interest @ 12% per annum, in the interest of justice."

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The respondents contested the case by filing reply, wherein, it was averred that the applicant was a fixed and contracted terms of engagement in the DSC service, initially for five years, which was extended to by another five years on completion of his fixed 10 years term of engagement in DSC and he was accordingly discharged from the service. He was neither invalided out of DSC service on medical grounds nor discharged on medical grounds. Therefore, he was not entitled to any service element of disability pension. In other ways, the applicant was already in receipt of service pension for the service that he had rendered in the Army and, therefore, the petition be dismissed.

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The learned Tribunal framed two questions namely:

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(i) Whether the applicant who was in receipt of army pension at the time of his re-enrolment in the DSC,

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is entitled to the disability pension in the DSC service also?; &

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(ii) Whether the Regulation 179 of the Pension Regulations for the Army, 1961, is applicable in the case of DSC personnel?.

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The learned Tribunal, after relying upon Regulation 179 of the Pension Regulations for the Army, 1961 (in short the “Pension Regulations”), relied upon Regulation 266 of the said Regulations to answer both the questions in favour of the petitioner, as would be evident from the following observations made in its order dated 27.09.2019, passed in O.A. No.1112 of 2019, which reads as under:-

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“ORDER

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By means of the present application, the applicant prays for setting aside the impugned letter Annexure A-4 whereby the authority concerned has rejected the claim of the applicant as regards service element of disability pension and the benefit of rounding off .

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Brief facts of the case are that the applicant was reenrolled in the Defence Security Corps (DSC) on 19.03.2000 and was discharged from service w.e.f. 01.04.2010 after completion of 10 years and 20 days of service in the DSC. The applicant suffered injuries (i) Splinter Injury Brain (ii) Blast Injury Left Eye @ 100% for life with effect from 01.04.2010.

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The applicant was entitled to disability pension consisting of service element and disability element @ 100% w.e.f 02.04.2010. However, the respondents have released only disability element of disability pension @ 100% only w.e.f. 01.04.2010 so, the applicant may be granted service element of disability pension in addition to disability element.

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Per contra, the case of the respondents in short is this that the applicant was on a fixed and contracted terms of engagement in DSC service, -2-initially for a period of five years and extended for another five years on completion of his fixed 10 years terms of engagement in DSC, he was discharged from DSC service. He was neither invalided out of DSC service on medical grounds nor discharged on medical grounds. So, he is not entitled to any service element of disability pension. That the applicant is already in receipt of service pension for the service that he had rendered in the Army. In these circumstances, the applicant is only entitled to disability element and not the service element of disability pension.

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We have heard learned counsel for the parties and perused the record.

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The first question in this case is as to “whether the applicant who was in receipt of army pension at the time of his re-enrolment in the DSC, is entitled to the disability pension in the DSC service also ?.

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For this purpose, the relevant regulation 179 of the Pension Regulations for the Army, 1961 is pertinent to be mentioned which is as hereunder:-

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“Disability at the time of retirement/discharge.

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179 An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective

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of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 percent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.

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(2) The disability element referred to in clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease”.

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Now the question arises as to whether this very provision is applicable in the case of DSC personnel. For this purpose, Regulation 266 of the above Regulation for the Army,1961 is relevant which is quoted as under:-

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General provision

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“266. The grant of pensionary awards to personnel of the Defence Security Corps shall be governed by the same general rules as are applicable to combatants of the Army, except where they are inconsistent with the provisions of the regulations in this chapter”.

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From the above, it is clear that Regulation 179 is fully applicable in the case of DSC service. There is no dispute that the applicant was discharged in Low Medical Category and that there is also no dispute that he was discharged from DSC service on completion of terms of engagement. He was discharged from the DSC service but due to being in Low Medical Category, he could not be granted further

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extension in the DSC service. So, he shall be deemed to have been invalided out of service because of being placed in Low Medical Category and the authority concerned has already granted him disability element of disability pension which further fortifies this view that he was in Low Medical Category at the time of discharge from DSC service. There is also no dispute that the applicant was at the time of his discharge suffering with disability @ 100%. So, by virtue of Regulation 179 above, he is entitled to disability pension consisting of service element as well as disability element.

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Rule 280 of Pension Regulations for the Army related to DSC service personnel states that disability pension consists of two elements viz service element and disability element. So, according to this Rule also, he is entitled to service element of disability pension.

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The mere fact that the applicant was in receipt of pension of the first spell of the Army service cannot be a ground to refuse him the disability pension for the second spell in the DSC service. Our views find support from the judgment of this Tribunal rendered in OA No. 146 of 2010 titled as Parbu Ram Vs. U.O.I and others decided on 23.04.2010.

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Since the applicant has come to this Tribunal after a lapse of about 9 years of his discharge from service, so, the arrears are restricted to three years prior to the filing of this petition i.e. 11.04.2019.

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The Original Application is, accordingly, allowed. The respondents are directed to calculate the arrears of service element of disability pension accordingly and to pay the same to the applicant within a period of three months from the date of receipt of a certified copy of this order by the learned counsel for the respondents/OIC, Legal Cell, failing

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which the arrears shall carry an interest @ 8% p.a. from the date of this order.

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No order as to costs.”

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It is thereafter the learned Tribunal concluded that solely because the applicant was in receipt of the pension of the first spell of the Army service, it could not have been a ground to refuse him the disability pension for the second spell in the DSC service.

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It is vehemently contended by the Deputy Solicitor General of India that the learned Tribunal has failed to consider that the service element of disability pension is equivalent to service pension, for which 15 years qualifying service is mandatory and the requirement of minimum qualifying service of 15 years has been condoned only “invalided out cases” Whereas, in the instant case the applicant had rendered only 10 years & 13 days qualifying service with DSC and had accordingly been discharged on completion of his term of engagement of service. Therefore, he is not entitled for grant of service element. However, we find no merit in the said contention of the learned Deputy Solicitor General of India.

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No doubt, the minimum qualifying service for pension in terms of the Pension Regulations for the Army Part-I (2008), is 15 years and service pension in terms of Regulation 50 in respect of a personnel below of an Officer rank for 33 years of qualifying service, is to be calculated at 50% of reckonable emoluments for pension and for the lesser period of qualifying service including weightage, it has to be reduced proportionately; the amount of service pension finally arrived at is to be subject to minimum pension admissible under these Regulations.

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However, when it gets down to disability pension, the provision for the same is contained in Pension Regulations in Regulation 98, which reads as under:-

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“AMOUNT OF DISABILITY PENSION

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98. The amount of disability pension consisting of service element and disability element shall be as follows:-

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(a) Service element payable for life –

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(i)	Where the individual has rendered sufficient service to earn serviced pension		Equal to normal service pension as determined under Regulation 50 for qualifying service actually rendered plus weightag as admissible
_(ii) _	Where the individual has not rendered sufficient service to qualify for service pension	(a)	If the disability was sustained while on flying or parachute jumping duty in an aircraft or while being carried on duty in

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an aircraft under proper authority :- The minimum service pension appropriate to his rank and group, if any (b) In all other cases :- Equal to the service pension as determined under Regulation 50 for qualifying service actually rendered plus weightage as admissible The amount of service pension shall in no case be less than 2/3rd of the minimum service pension admissible to the rank/pay group. It shall be further subject to the ceiling prescribed for minimum pension.

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(b) Disability element on invalidment–

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(i) The disability element shall be payable for the period for which disability has been accepted. The rates of disability element for 100% disability for the rank last held shall be as under: -

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Junior Commissioned Officer Rs.1900/- p.m. Other Ranks Rs.1550/- per month

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(ii) Disability lower than 100% shall be reduced with reference to percentage as laid down in clause (c) below. Provided that where permanent disability is not less than 60%, the disability pension (i.e. total of service element plus disability element) shall not be less than 60% of the reckonable emolument last drawn by the individual.

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(c) The extent of disability or functional incapacity shall be determined in the following manner for the purpose of computing disability element in:

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Percentage of disabilitye Percentage to be reckoned for element as finally accepted computing disability element Less than 50 50 Between 50 and 75 75 Between 76 and 100 100”

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As per Pension Regulations for the Army, 1961 (Part-I), amount of disability is dealt with Regulation 280, which clearly states that the disability in pension would consists of two elements viz service element and disability element and the same are required to be assessed in the following manner and how these are to be assessed has also been provided in the Regulation itself. Therefore, it shall be apt to reproduce the Regulation 280

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in its entirety, which reads as under:-

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“Amount of disability pension WEF 1/1/86

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280. The disability pension consists of two elements viz. service element and disability element which shall be assessed as under:-

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(I) Service element

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(a) Where the individual	(i) Equal to normal service pension
has rendered sufficient service	fi relevant to the length of qualifying service actually, rendered, plus a
to	weightage of 5 years as given in
earn a service pension i.e. actual service is 15 years	Regulation 271 (b).
or
more (20 years or more in
the case of NCs (E)
(b) Where the individual	(i) If the disability was sustained to
has not rendered	while on flying or parachute jumping

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sufficient service Qualify for a service pension.	duty in an aircraft or while being carried on duty in an aircraft under proper authority: The minimum service pension appropriate to his rank (see regulation 271) and group, if any. (ii) In all other cases: Equal to the service pension as determined per Regulation 271 (b), but it shall in no case, be less than 2/3rd of the minimum service pension admissible to the rank/pay Group. It shall be further subject to a minimum of Rs.375/- p.m.

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sufficient service Qualify
for a service pension.

duty in an aircraft or while being carried
on duty in an aircraft under proper
authority:
The minimum service pension
appropriate to his rank (see
regulation 271) and group, if
any.
(ii) In all other cases:
Equal to the service pension as
determined per Regulation 271
(b), but it shall in no case, be
less than 2/3rd of the minimum
service pension admissible to
the rank/pay Group. It shall be
further subject to a minimum
of Rs.375/- p.m.

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Note- With effect from 28th November 1962 and for so long as similar orders exist in respect of Central Civil Government servants, the provisions of clause (I) above shall also apply to flights in nonservice, i.e.., Civil or Chartered, aircraft.

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In the case of D.S.C. personnel service pension for former service of an individual held in abeyance under Regulation 267(d) on his reenrolment in the D.S.C. shall

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be restored as service element of disability pension on termination of his re-employment in D.S.C., if it is more than the service pension admissible under Reg. 271 for the service in D.S.C. [Auth: MOD letter No. 1(2)/84/(Pen-C) dated 29/5/86]

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(2) Diability element

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For 100 percent disablement the rates of disability element will be as follows :- w.e.f. 1/1/86

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JCOs granted Honorary	Rs. P.M.
Commission while on the effective	750/-
List:
JCOs	550/-
Other Ranks/NCs (E)	450/-

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For lower percentages of disablement down to 20 percent the rates will be proportionately reduced.

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Provided that where permanent disability is not less than 60% the disability pension (i.e., total of service element and

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disability element shall not be less than the special family pension admissible vide Regulation 213 i.e., it shall not be less than 60% of the reckonable emoluments [Pay+ Classification pay, if any, last drawn] Subject to a minimum of Rs.750/-P.M. and maximum of Rs.2, 500/- p.m. [Auth. MD letter No 1(5)/87/D- (Pension/Services) dated 30/10/87]

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In case where an individual is invalided out of service before completion of his prescribed engagement/service limit on account of a disability which is attributable to or aggravated by military service and is assessed below 20 percent, he will be granted an award equal to service element of disability pension determined in the manner given in Regulation 183 Pension Regulations for the Army Part I (1961), read with Appendix `A' to AI I/S/75 and Annexure I & II to AI 3/S/75. This benefit will also be allowed in all cases where an individual is granted disability pension but whose degree of disablement subsequently falls below 20 percent.

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Note-In the case of a re-employed pensioner who was in receipt of pension in addition to pay and allowances under regulation 120 and clause (b) of regulation 21 only disability element will be admissible in addition to the service pension already in issue.

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Subject to the same conditions as are applicable to combatants of the Army, the amount of disability pension consisting of service and disability elements will be as follows: -

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(1) Service element

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(a) Where the individual has Service pension admissible under rendered sufficient service to regulation 271 according o his rank and earn a service pension i.e. actual length of service. service is 15 years or more (20 years or more in the case of NCs

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(E)

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(b) Where the individual has not rendered sufficient service Qualify for a service pension.

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(i) If the disability was sustained while on flying duty in a service aircraft or while being carried on duty in a service air-craft under Proper authority. The minimum service pension appropriate to his rank under, reputation 271

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(ii) In all other cases. That proportion of the minimum service pension appropriate to the

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individual's rank which the number of his completed years of qualifying service' bears to 15, but in no case less than two third of the minimum service pension.

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(2) Disability Element

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The rates of disability element for 100% disability for the various ranks shall be as follows: -

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Rank	Amount p.m.
(i) Commissioned Officers and Honorary	750/-
Commissioned Officers of the three services
MNS, TA and DSC
(ii) Junior Commissioned Officers and	450/-
equivalent ranks of the three services,
TA and DSC
(iii) Other Ranks/NCs (E) of the three services TA and DSC	550/-

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__________________________________________________________________ For disabilities less than 100% but not less than 20% the above rates shall be proportionately reduced._

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Provided that where permanent disability is not less than 60%, the disability pension (i.e. total of service element and disability element) shall not be less than the special family pension admissible vide Regulation 282 (b) i.e. it shall not be less than 60% of the reckonable emoluments subject to a minimum of Rs. 750/p.m.”

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It is evidently clear from the aforesaid Regulation

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that the condition of having a qualifying service of 15 years, is not at all attracted to the facts of the present case where an employee is claiming service element and disability element despite the fact that he has not rendered sufficient service to qualify for a service pension but has sustained disability while on duty and, therefore,

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the minimum service pension appropriate to his rank under Regulation 271 is required to be paid.

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Even though these provisions may not have been considered by the Tribunal, yet no fault can be found in the judgment rendered by the Tribunal as regards its findings or conclusion, whereby, only the provisions of Regulation 179 and even though the findings may be based only on the consideration of Regulations 179 and 266 of the Pension Regulations for the Army, 1961.

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In view of the aforesaid discussion and for the reasons stated above, we find no merit in the instant petition and the same is accordingly dismissed, leaving the parties to bear their own costs.

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Pending miscellaneous application(s), if any, shall also stand disposed of.

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( Tarlok Singh Chauhan ) Acting Chief Justice

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December 19, 2024 ( Satyen Vaidya ) (Yashwant) Judge

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(Yashwant)

Union of India and Ors. v. Joginder Lal

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Union of India and Ors. v. Joginder Lal

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