ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR

16.

OA No 469/2021 with MA No 327/2021 No-14469455 Ex Gnr Mahendra Singh, S/o Sh Parsu Ram, R/o Vill-Gangania Ki Dhani, Tehsil-Buhana, Distt-Jhunjhunu (Raj), at present R/o Pl No 25,26, Balaji Vihar, 7^th New Loha Mandi, Road No-14, Jaipur (Raj) - 302013 …. Applicant Versus

1. The Union of India, through Secretary, Ministry of Defence, South Block, Govt of India, New Delhi – 110011

2. The PCDA (P), Allahabad (UP)-211001

3. The OIC Records, Arty, Hyderabad (AP) …. Respondents For Applicant : Mr Satish Kumar Balwada, Advocate For Respondents : Mr Arun Kumar, Advocate CORAM HON’BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER (J)

HON’BLE MR SANJIV MITTAL, MEMBER (A)

O R D E R

02.01.2025

1. By way of this Application under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has prayed for directing the Respondents for grant of Disability Element of Disability Pension for life duly Rounded Off to

50% wef 01.01.1996 along with interest on arrears @ 12% per annum.

2. Brief facts of the case as enunciated by the Applicant are that the Applicant was enrolled in the Army on 18.09.1980 and after rendering more than one year of service, he was invalided out of Service on 03.11.1981 in low medical category due to Disability “Bilateral Pulmonary Tuberculosis” and was granted Disability Element of Disability Pension. Based on the re-assessment of disability below 20%, the disability element of disability pension was discontinued wef 25.08.1988. The Applicant submits that he joined the Army Service in medical category “AYE” and suffered from the disability due to service factors due to which he was invalided out of military service. Therefore, he is eligible for grant of Disability Element of Disability Pension duly rounded off to 50%, even if the disability is assessed below 20%. In support of his claim, he placed reliance on Hon’ble Supreme Court judgments in the case of Dharamvir Singh Vs UOI & Ors, (2013) 7 SCC 316, UOI & Anr Vs Rajbir Singh, JT 2015(2) SC 392 and UOI & Ors Vs Ram Avtar, (2014) SCC Online 1761. The Applicant made representations as also issued Legal Notice for grant of Disability Element of Disability Pension duly rounded off to 50%, but to no avail. Therefore, the aggrieved Applicant has filed present OA.

3. The Respondents have filed a detailed Reply Statement. While not disputing the basic facts presented by the Applicant, the Respondents have submitted that the Applicant was invalided out of service under 13(3) IV of Army Rules, 1954. The duly constituted Invaliding Medical Board assessed his Disability initially at 100% for one year and opined it as Attributable to Military Service, which was reviewed from time to time and, accordingly, the Applicant was granted Disability Element of Disability Pension till 24.08.1988. RSMB held in 1988 assessed his disability @ 20% for life, however, MA (P) at PCDA (P) re- assessed his disability below 20% for life wef 25.08.1988 and discontinued his disability element of disability pension wef 25.08.1988 in terms of Rule 173 of Pension Regulations for the Army, 1961 (Part-1). Therefore, the Applicant is not eligible for grant of Disability Element of Disability Pension wef 25.08.1988. Moreover, 1^st Appeal preferred by the Applicant have also been rejected by the Competent Authority. In view of the aforesaid averments, the Respondents have reiterated that the Applicant is not eligible for grant of Disability Element of Disability Pension wef 25.08.1988. The OA is devoid of merit and deserves to be dismissed.

4. We have heard both the parties and perused the material placed on record. The issue to be determined in this case is whether PCDA (P) can overrule the findings of the Medical Board?

5. On the issue of primacy of opinion of Medical Boards, Hon’ble Supreme Court in the case of Secretary MoD & Ors Vs AV Damodaran (dead), (2009) 9 SCC 140, held as under:-

“8. When an individual is found suffering from any disease or has sustained injury, he is