OA 2952 of 2012

ARMED FORCES TRIBUNAL, CHANDIGARH

REGIONAL BENCH AT CHANDIMANDIR
-.OA 2952 of 2012
Col (Retd) SPS Bedi
Vs
Union of India and others
For the Petitioner (s) :
For the Respondent(s) :

Petitioner(s)

Respondent(s)

-.Mr. Rajeev Anand , Advocate

Ms. Renu Bala Sharma, CGC.

Coram: Justice Rajesh Chandra, Judicial Member.

Air Marshal (Retd) SC Mukul, Administrative Member.
-.JUDGMENT
07.05.2013
-.-

The prayer in this petition is for grant of disability pension.

The case of the petitioner is that he was commissioned in the
Indian Army on 16.6.71 and at the time of commission was in medical
category SHAPE-1. In the year 1990 while posted at high altitude
area at Nathula (Sikkim) under 27 Mountain Division, he was
diagnosed as a case of ANKYLOSING SPONDYLITIS SPINE. In
1994 with the deterioration of the disability he was brought before the
Medical Board on 12.10.1994.

Subsequently he was placed in

permanent low medical category after completion of 26 years of

service and then the petitioner applied for pre-mature retirement. He
was brought before the Release Medical Board on 02.09.1997 and was
found to be suffering from the aforesaid disease. The Board opined
that the disease has aggravated due to stress and strain of the service
conditions in cold environment. The disability was assessed at 30%
for two years. After retirement the petitioner was allowed only the
service pension but the claim for disability pension was rejected on the
ground that the petitioner had proceeded on pre-mature retirement and

OA 2952 of 2012

as such is not entitled for the same under Regulation 50 of the Pension
Regulations for the Army, 1961 (Part-I).
The notice of the petition was accepted by Ms.Renu Bala
Sharma, CGC and she instead of filing a reply to the petition stated on
17.4.2013 that the reason for disallowing the disability pension has
been mentioned in paper no. 19 filed by the petitioner and the same
may be taken as the reply of the respondents. The paper no. 19 of the
Court file is a letter from Additional Directorate General Personnel
Services dated 20.8.1998 by which the petitioner has been informed
that he is not entitled for disability pension as per Regulation 50 of the
Pension Regulations for the Army, 1961 as he had proceeded on
premature retirement.
We have heard the learned counsel for the petitioner as well as
the respondents.
During the course of arguments, the learned counsel for the
petitioner has drawn our attention to the judgment of the Armed
Forces Tribunal Principal Bench at New Delhi in OA No. 336 of 2011
(with OA Nos. 205/11 & 189/11) Maj (Retd) Rajesh Kumar Bhardwaj
v. UOI and others dated 7.2.2012 and argued that vide Notification
dated 29.9.2009, the Government has allowed the benefit of disability
pension to the persons who retired/discharge on or after 1.1.2006
irrespective of the fact that they sought voluntary retirement.
We have gone through the judgment of the Principal Bench. In
that case, the petitioner Major (Retd) Rajesh Kumar Bhardwaj was
commissioned in Indian Army on 27.12.1982. During military service
he was found suffering from two disabilities namely Tear Anterior
Cruciate Ligament and Medical Meniscus (Left) and was placed in

OA 2952 of 2012

Low Medical Category. He then applied for premature retirement after

15 years of service which was approved vide order dated 7.1.1997. In
the Release Medical Board held on 17.2.1997 the petitioner was found
suffering from the above-said two disabilities attributable to and
aggravated by military service and the percentage of disability was
assessed at 60% composite. The petitioner of that case had made a
representation for grant of disability pension but the same was rejected
on the ground that as per the terms of Regulation 50 of the Pension
Regulations 1961, the petitioner was not entitled for the disability
pension as he had sought voluntary retirement. The petitioner then
challenged the order of denial of disability pension before the Honble
Delhi High Court from where the case was transferred to the Principal
Bench. The said case was initially dismissed by the Principal Bench
vide order dated 12.8.2010 on the basis of the judgment of the Honble
Supreme Court in Union of India and others v. Ajay Wahi SCC 2010
(11) 213. However, a review application was filed by the petitioner
and it was brought to the notice of the Principal Bench that the
Government vide Notification dated 29.9.2009 has extended the
benefits of disability pension to the personnel who retired /discharged
on or after 1.1.2006 irrespective of the fact that they have sought
voluntary retirement. The review application was decided with the
observation that the petitioner may make a representation to the
authorities in pursuance of the aforesaid notification dated 29.9.2009.
The petitioner then made a representation which was rejected by the
respondents Union of India and others on the ground that the disability
pension is not admissible to the petitioner as he had retired prior to
1.1.2006. The petitioner Maj (Retd) Bhardwaj then filed OA No. 336

OA 2952 of 2012

of 2011 challenging the said Notification dated 29.9.2009 and making

a prayer that the pre and post distinction of 1.1.2006 may be quashed
from the above said notification being violative of Article 14 of the
Constitution of India. The Honble Principal Bench referred the
following judgments of the Honble Supreme Court and the Principal
Bench:
1)
2)
3)

Union of India and another v. SPS Vains and others

2008 (9) SCC 125;
KJS Buttar v. UOI and another (2011)11 SCC 429
OA No.139 of 2009 Lt Col PK Kapur (Retd) v. UOI
decided on 29.6.2010 by the Principal Bench of Armed
Forces Tribunal.

The Principal Bench then quoted the said Notification dated 29.9.2009
which runs as under:
No. 16(5)/2008/D(Pen/Policy)
Government of India Ministry of Defence
Deptt. Of Ex-Servicemen Welfare
New Delhi 29th Sept. 2009
To
The Chief of the Army Staff
The Chief of the Naval Staff
The Chief of the Air Staff
Subject : Implementation of Government decision on the recommendation
of the Sixty Central Pay Commission Revision of provisions regulating
Pensionary Awards relating to disability pension/war injury pension etc. for
the Armed Forces Offices and personnel Below Officer Rank (PBOR) on
voluntary retirement/discharge on own request on or after 1.1.2006
Sir,
The undersigned is directed to refer to Note below Para 8 and
Para 11 of the Ministrys letter No. 1(2)/97/D()Pen-C) dated 31.1.2011,
wherein it has been provided that Armed Forces personnel who retire
voluntarily or seek discharge on request, shall not be eligible for any
award on account of disability.
2.
In pursuance of Government decision on the recommendations of
the Sixty Central Pay Commission vide Para 5.1.69 of their Report,
President if pleased to decide that Armed Forces personnel who are
retained in service despite disability, which is accepted as attributable to
or aggravated by Military Service and have foregone lump-sum
compensation in lieu of that disability, may be given disability element/war
injury element at the time of their retirement/discharge whether voluntary
or otherwise in addition to Retiring/Service Pension or Retiring/Service
Gratuity.
3.
The provisions of this letter shall apply to the Armed Forces
personnel who are retired/discharged from service on or after 1.1.2006.

OA 2952 of 2012

4.
Pension Regulations for the three Services will be amended in
due course.
5.
This issue with the concurrence of Ministry of Defence (fin.) vide
their U.O. No. 3545(fin/Pen) dated 29.09.2009.

6.

Hindi version will follow.

Yours faithfully,
(Harbans Singh)
Director (Pen/Policy)

Copy to :- As per standard list.

The Principal Bench then observed as under:

As per this notification, the benefit has been extended to the

Armed Forces personnel as mentioned in paragraph no. 2 of this
notification but in paragraph no. 3, they have said that this will be
applicable from 01.01.2006 i.e. the persons who have sought
voluntary retirement on or after 01.01.2006 will be benefited and
rest will not be benefited. Petitioner has retired prior to 01.01.2006,
therefore, he has been denied the benefit on account of cut-off
date as per notification dated 29.09.2009.

The Principal Bench then quoted the Notification dated

3.8.2010 relating to the personnel below officer rank (PBOR) which
runs as under:

Tele - 23335048
Addl Dte Gen Personnel Services
Adjutant Generals Branch
Integrated HQ of MoD (Army)
DHQ PO, New Delhi-110011
B/39022/Misc/AG/PS-4 (L)/BC
All Legal Cells
All line Dtes
GRANT OF DISABILITY PENSION TO PREMATURE RETIREMENT
CSES PROCEEDING ON DISCHARGE PRIOR TO 01 JAN 2006
1.
Further to this office note No. A/39022/Misc/AG/PS-4(Legal) dt
22 Feb 2010 on subject matter.
2.
It is clarified that as and when a pre-2006 retiree PROB files a
court case to claim disability pension which was denied to him merely
because he had proceeded on Pre-Mature Retirement, such cases will

OA 2952 of 2012

be immediately processed for Government Sanction through

respective Line Dtes and Not contested. Government Sanctions in
which cases will also be proposed in the same manner as that followed
in cases of Government Sanctions issued in compliance of court
cases.
3.
This arrangement will be affective till MoD/D(Pen/Legal)
formulated and issues comprehensive Govt orders.
4.
It is re-iterated that only those cases where disability pension
was denied to a PBOR solely on the grnds that he had proceeded on
PMR will be processed for sanction and will not be contested. Which
implies that as and when a PBOR files a case of similar nature their
case files will be processed for Govt sanction without awaiting court
order.
5.
Contents of this letter are not applicable to offers as PRA, Rule
50 has been upheld by Honble Supreme Court in judgment dt 06 July
2010 in case of Lt Col Ajay Wahi (SLP. No. 25586/2004, Civil Appeal
No. 1002/2006).
7.
All lime Dtes are requested to give vide publicity to this letter
amongst all Record Offices.
(Ajay Sharma)
Col
Dir Ag/PS-4 (Legal)
For Adjutant General
Copy to:
MoD/D(Pen/Legal)
JAG Deptt

After considering the said letters dated 29.9.2009 and

3.8.2010, the Principal Bench made the following observations:It has been clarified that as and when a pre 2006 retiree
PBOR files a court case to claim disability pension which was
denied to him merely because he had proceeded on Pre-Mature
Retirement, such cases will be immediately processed for
Government sanction through respective Line Dtes and not
contested. Government sanctions in which cases will also be
processed in the same manner as that followed in cases of
Government sanctions issued in compliance of court cases. That
means Government has relaxed the condition for the PBOR, even
if they sought voluntary retirement prior to 2006 they will not be
denied the benefits of disability pension as per rules. If the
Government can show benevolence for PBOR then why not same
benefit can be given to the officers who are far less in number than
PBOR.
The plea of the respondents of financial constraints is
exploded. The number of PBOR who sought voluntary retirement
pre 2006 would be hundred times more than that of officers.
Therefore, we think that plea taken by the Government of financial
constraints is nothing but an afterthought to somehow justify the
administrative action. When this benefit has been extended to
PBOR, we see no reason why it should not be released to the
officer. More so, the justification of financial constraints pleaded by
the respondents is exposed on account of that they have released
the benefit to the PBOR which are larger number than that of
officer. Therefore, in our opinion, this artificial distinction which has
been sought to be made of pre and post 01.01.2006 is without any
rational basis. It is only a ploy to deprive the benefits of disability
pension to the officers rank.

OA 2952 of 2012

The Principal Bench then struck down the clause 3 of the Notification
dated 29.9.2009 and held that it will be open to the petitioner to make
the representation to the authority to seek the disability pension benefit
in terms of the aforesaid circular and also directed the Government to
examine the matter and pass appropriate order in accordance with law.
We have given our thoughtful consideration to the facts of the
present case and have also considered the judgment of the Principal
Bench and we feel that there is no reason to take a different view than
the one which has been taken by the Principal Bench in the aforesaid
judgment. Thus, clause 3 of the Notification dated 29.9.2009 is struck
down being violative of Article 14 of the Constitution of India.
The petition is disposed of with a direction to the petitioner that
if he so wishes he may make a representation to the authorities
concerned seeking disability pension benefit in terms of the aforesaid
letter/circular dated 29.9.2009. If any such representation is made by
the petitioner then the Government will examine the matter and will
pass appropriate order in accordance with law.

(Justice Rajesh Chandra)

(Air Marshal (Retd) SC Mukul)

07.05.2013
raghav

Whether the judgment for reference is to be put on internet?

Yes