Disability from rocket launcher firing for illumination in counter insurgency operational area qualifies as war injury under MoD order Category ‘E’(f)(ii), entitling personnel retained in service to war injury pension element.

ORDER :

Sanjeev Kumar, J.

1. Impugned in this petition filed under Article 226 of the Constitution of India is an order and judgment dated 10.04.2023 passed by the Armed Forces Tribunal, Regional Bench Srinagar at Jammu (hereinafter referred to as, “the Tribunal”) in OA No. 73/2022 titled, “ Ex Hav. Davinder Singh Vs. Union of India and ors. ”, whereby the Tribunal has dismissed the OA of the petitioner, seeking war injury element of disability pension.

2. Before we advert to the grounds of challenge urged by learned counsel for the petitioner, it would be appropriate to take note to few facts, as are relevant to the disposal of this petition.

3. The petitioner was enrolled in the Army, Infantry on 01.05.1991 in medical category SHAPE-I. He was discharged from service on 30.04.2015 being placed in medical category S1H2(P)A1P1E1 due to injury “SENSORINEURAL HEARINGLOSS BIL”. The injury was suffered by the petitioner while he was deployed in Machel Sector (J&K) in Counter Insurgency Area when he was illuminating a post by a Rocket Launcher (RL). The Machel Sector, which is a border area, was at the relevant point of time under operation “RAKSHAK”. The injury/disability suffered by the petitioner was assessed at 20% for life and attributable to army service. The petitioner was, thus, granted disability pension. He represented before the respondents for grant of war injury element of pension on the ground that he suffered the disability while performing his duties in connection with OP RAKSHAK.

4. Having failed to get any response from the respondents, the petitioner filed OA No. 73/2022 claiming, inter-alia, a direction to the respondents to release the war injury pension at 20% instead of disability pension and then, rounding it off to 50%, w.e.f. 01.05.2015 for life. The OA was contested by the respondents. The stand taken by the respondents before the Tribunal was that the petitioner suffered disability while he was deployed in Machel Sector of Jammu and Kashmir in Counter Insurgency Area. The incident occurred when the petitioner fired a Rocket Launcher on 08.06.2011 for providing illumination at a post. It was, thus, contended before the Tribunal that the disability though occurred in operational area, was not sustained in a war like situation and, therefore, the war injury element of pension was not available to the petitioner. Since the disability suffered by the petitioner was attributable to military service, as such, he was held entitled only to the disability pension.

5. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the Tribunal has not appreciated the detailed provisions contained in the Ministry of Defence (MoD) order dated 31.01.2001.

6. Para-10 of the order deals with war Injury Pension on Invalidment whereas paras-11 & 11.1 deal with War Injury Pension on Retention in Service, which are relevant for our purpose and, therefore, are set out as under:-

“11. War injury Pension on Retention in Service.

11.1 Armed Forces personnel who are retained in service despite the disability due to war injury sustained under circumstances mentioned in Category 'E' of Para 4,1 above, and retire subsequently will have an option as follows to be exercised with in a period as prescribed by the Government from time to time:-

(a) to draw lump sum compensation in lieu of War injury element foregoing war injury element at the time of subsequent retirement/discharge, or

(b) to draw war injury element at the time of retirement