Pension Regulations for the Army, 1961 – Regulations 173, 173-A – On completing original tenure of 24 years of service on 27 Dec. 2010, the appellant, Havildar in the Army was granted extension of service for two years until 26 Dec. 2012 – During the course of extended tenure, he suffered stroke and was re-categorised into the category described as SHAPE-3 (Permanent) with an 80% disability – Appellant was discharged from service – Appellant’s claim seeking the grant of disability pension was allowed by the Armed Forces Tribunal (AFT) – Appellant moved the AFT seeking payment of ex-gratia compensation of Rs.9,00,000/- based on policy circular dtd. 26 Dec.2011 – Rejected – On appeal, held: On merits, the appellant was granted disability pension under the 1961 Regulations– Regulation 173 provides for the grant of disability pension to a person who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in a non-battle casualty where the disability is assessed at 20% or more –Regulation 173-A extends the provision for disability pension by a deeming fiction under which a person who is placed in low medical category while on extended service and is consequently discharged will also stand covered by the grant of disability pension – Deeming fiction is confined to the grant of a benefit to the extent specified in Regulation 173-A – Initially by policy decision of the Government of India datd. 4 June 2010, ex-gratia compensation was provided to the next of kin in cases of death – This was extended on 26 Dec. 2011 to personnel who are disabled or incapacitated on account of causes attributable to or aggravated by military service – Appellant evidently did not meet that requirement of the policy circular since he was not boarded out of service on account of disability/war injury attributable to or aggravated by military service – He was entitled to disability pension in view of Regulation 173-A – Significantly, under Regulation 173-A, he is deemed to have been invalidated from service for the purpose of the entitlement rules laid down in Appendix 2 to the Regulations – Fiction under Regulation 173-A cannot be extended to the policy document dtd.
26 Dec. 2011 – If the intent of the Policy was to grant ex-gratia compensation to every person who is granted a disability pension, it would have provided so – Claim for ex-gratia compensation could not have been entertained – Armed Forces – Service Law – Code of Civil Procedure, 1908 – Or. II, r.2.
Appellant, a Havildar in the Army completed his original tenure of 24 years of service on 27 Dec.2010. He was granted extension of service for two years until 26 Dec. 2012. During the course of extended tenure, the appellant suffered a stroke and was re-categorised into the category described as SHAPE-3 (Permanent) with an 80% disability. The appellant was discharged from service. In 2013, the Appellant moved the Armed Forces Tribunal (AFT) at its Principal Bench seeking the grant of disability pension. The claim was allowed by the AFT. However, the claim of rounding off of the disability pension was kept open on the hypothesis that the issue was pending decision before Supreme Court. The appellant filed Review Application before the AFT, which was allowed. The AFT held that as a matter of fact, it was mistaken in its finding that the issue of rounding off was pending before Supreme Court and that the appellant was entitled to the benefit of rounding off from 80% to 100%. In 2016, the appellant moved the AFT seeking the payment of ex-gratia compensation of Rs.9,00,000/- based on policy circular dtd. 26 Dec. 2011. The claim was rejected by the AFT. Hence, the present appeal.
Dismissing the appeal, the Court
HELD: 1.1 Regulation 173, Pension Regulations for the Army, 1961 provides for the grant of disability pension to a person who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in a non-battle casualty where the disability is assessed at 20 per cent or more. Regulation 173-A extends the provision for disability pension by a deeming fiction under which a person who is placed in a low medical category while on extended service and is consequently discharged will also stand covered by the grant of disability pension. A person, who is placed in a low medical category and is discharged, is also deemed to have been invalidated out of service for the purpose of the entitlement rules laid down in Appendix 2 to the Regulations. The deeming fiction is confined to the grant of a benefit to the extent specified in Regulation 173-A. Initially by policy decision of the Government of India in the Ministry of Defence dated 4 June 2010, ex-gratia compensation was provided to the next of kin in cases of death. This was extended on 26 December 2011 to personnel who are disabled or incapacitated on account of causes attributable to or aggravated by military service.[Paras 9-11] [37-C-F]
1.2 In order to be entitled to the grant of ex-gratia compensation, it is necessary that the applicant must fulfill the following conditions: (i) The applicant should have been disabled or incapacitated in the performance bona fide official duties; and
(ii) the applicant should have been boarded out of service on account of disability/war injury attributable to or aggravated by military service. If the intent of the Policy was to grant an exgratia compensation to every person who is granted a disability pension, it would have provided so. On 21 September 1998, the Army Headquarters provided the procedure and criteria for screening of personnel below the officer rank for extension in service. All PBOR are to be screened for extension of two years by the Screening Board. Annexure B to the Policy Instruction contains specific provisions in regard to retention during the extended tenure. [Paras 12-14] [38-B-E]
1.3 This indicates that a person who is placed in a permanent low medical category, except a battle casualty or a person wounded in action, and consequently placed in a permanent low medical category during the extended service will be discharged under the existing rules. Such a person who is discharged undoubtedly would be entitled to the benefit of the disability pension by virtue of the deeming fiction in Regulation 173-A of the Pension Regulations. However, it does not ipso facto entitle the individual to the grant of ex-gratia compensation. The case for ex-gratia compensation has to fall within the purview of the governing conditions which are contained in the policy circular dated 26 December 2011. The appellant evidently did not meet that requirement of the policy circular since he was not boarded out of service on account of disability/war injury attributable to or aggravated by military service. He was entitled to disability pension in view of the provisions contained in Regulation 173-A. Significantly, under Regulation 173-A, he is deemed to have been invalidated from service for the purpose of the entitlement rules laid down in Appendix 2 to the Regulations. The fiction under Regulation 173-A cannot be extended to the policy document dated 26 December 2011. The claim for ex-gratia compensation could not have been entertained. [Paras 15-17] [39-B-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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