G H UNION OF INDIA & ORS.versusWING COMMANDER S.P. RATHORE

990                      [2019]REPORTS
               SUPREME COURT   18 S.C.R. 990                [2019] 18 S.C.R.


A                          UNION OF INDIA & ORS.
                                         v.
                    WING COMMANDER S.P. RATHORE
                         (Civil Appeal No. 10870 of 2018)
B                             DECEMBER 11, 2019
              [DEEPAK GUPTA AND SANJIV KHANNA, JJ.]
            Armed Forces – Air Force – Disability pension – Entitlement
      – Disability pension consisting of a service element and a disability
      element – Appellant, an Air Force Officer, was superannuated from
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      service – His disability was less than 20% – Whether appellant not
      having 20% disability was at all entitled to disability pension –
      Held: Both Regulation 37(a) of the Pension Regulations and Para
      8.2 of Circular dated 31.01.2001 issued by Ministry of Defence
      clearly provided that disability element was not admissible if the
D     disability was less than 20% – In view of the provisions, appellant
      was not entitled to disability pension – Consequently, there was no
      question of rounding off (of his disability) by applying the provisions
      of Para 7.2 of the Circular, as done by the Armed Forces Tribunal
      (AFT) – AFT erred in applying the principles of rounding off (of
      disability) without determining whether appellant was entitled to
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      disability pension at all – When appellant is not entitled to disability
      pension, there would be no question of rounding off (of his disability)
      by application of the provisions of Para 7.2 – Defence Service
      Regulations – Pension Regulations for the Air Force, 1961 – rr.37(a),
      (b) – Circular dated 31.01.2001 issued by Ministry of Defence –
F     Para 7.2 and 8.2.
            Allowing the appeal, the Court
             HELD: 1. A bare reading of rr.37(a), (b) of the Pension
      Regulations for the Air Force, 1961 makes it clear that an officer
      of the Air Force who retires on attaining the age of superannuation
G     is entitled to disability pension only if disability is assessed at
      20% or above. Furthermore, this disability must be attributable
      or aggravated by service rendered in the Air Force. [Para 3]
      [992-E]

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                                        990
      UNION OF INDIA & ORS. v. WING COMMANDER                           991
                    S. P. RATHORE

       2. Para 7.2 of Circular dated 31.01.2001 issued by the           A
Ministry of Defence which deals with officials of Armed Forces
invalided out under circumstances mentioned in Para 4.1 provides
that they would be entitled to rounding of the disability. Therefore,
if the disability was less than 50%, it would be rounded off to
50%. If the disability was between 50 and 75% it would be
                                                                        B
rounded off to 75%. If the disability was between 76 and 100% it
would be rounded off to 100%. Para 8.2 of the said circular falls
under the heading of Disability Element on Disability/Discharge
and provides that the provisions contained in Para 7.2 shall not
be applicable for computing disability element in cases where
the disability was less than 20%. Both Regulation 37(a) and Para        C
8.2 clearly provide that the disability element is not admissible if
the disability is less than 20%. In that view of the matter, the
question of rounding off would not apply if the disability is less
than 20%. If a person is not entitled to the disability pension,
there would be no question of rounding off. [Paras 6, 9][993-D-F;
                                                                        D
994-B]
       3. The Armed Forces Tribunal (‘AFT’) put the cart before
the horse. It applied the principles of rounding off without
determining whether the petitioner/applicant before it would
entitled to disability pension at all. In view of the provisions, the
original petitioner/applicant before the AFT is not entitled to         E
disability pension. Therefore, the question of applying the
provisions of Para 7.2 would not arise in his case. In this view of
the matter, the order of the AFT is set aside. [Paras 10, 11]
[994-C-D]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10870              F
of 2018.
      From the Judgment and Order dated 15.03.2018 of the Armed
Forces Tribunal, Regional Bench, Lucknow in O.A. No. 477 of 2017
and order dated 12th July, 2018 in M.A. No. 1306 & 1307/2018 in OA
No. 477/2017.                                                           G
      Ms. V.Mohana, R. Balasubramanian, Sr. Advs., Pranay Ranjan,
Santosh Kr. Vishwakarma, Arvind Kumar Sharma, Advs. for the
Appellants.
      Mohan Kumar, Ms. Rashmi Singh, Ms. Ritu Bhardwaj, Ms. Neetu
Singh, Ramesh Chandra, Advs. for the Respondent.                        H
992             SUPREME COURT REPORTS                             [2019] 18 S.C.R.


A            The Judgment of the Court was delivered by
             DEEPAK GUPTA, J.
             1. The short question involved in this appeal filed by the Union of
      India is whether disability pension is at all payable in case of a Air Force
      Officer who superannuated from service in the natural course and whose
B     disability is less than 20%.
             2. We may make reference to the Defence Service Regulations
      Pension Regulations for the Air Force, 1961. Regulations 37(a) and (b)
      under the heading “Disability Pension – when admissible” read as follows :

C            “37(a) An officer who is retired from air force service on account
             of a disability which is attributable to or aggravated by such service
             and is assessed at 20 percent or over may, on retirement be
             awarded disability pension consisting of a service element and a
             disability element in accordance with the regulations in this section.

D            (b) The question whether a disability is attributable to or aggravated
             by air force service shall be determined under the regulations in
             Appendix II.”
             3. A bare reading of the aforesaid provision makes it clear that an
      officer of the Air Force who retires on attaining the age of superannuation
      is entitled to disability pension only if disability is assessed at 20% or
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      above. Furthermore, this disability must be attributable or aggravated by
      service rendered in the Air Force.
              4. So far as the second part is concerned, we are not going into
      that issue since in this case, it is admitted that the disability was aggravated
      due to service rendered in the Air Force. The only issue is whether the
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      Appellant not having 20% disability is at all entitled to disability pension.
            5. Both learned senior counsel appearing for the Union of India
      and learned counsel appearing for the Respondent rely upon Paras 7.2
      and 8.2 of Circular dated 31.1.2001 issued by Ministry of Defence which
      read as follows :
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             “7.2 Where an Armed Forced personnel is invalided out under
             circumstances mentioned in Para 4.1 above, the extent of disability
             or functional incapacity shall be determined in the following manner
             for the purposes of computing the disability element:-

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       UNION OF INDIA & ORS. v. WING COMMANDER                                 993
            S. P. RATHORE [DEEPAK GUPTA, J.]

                                                                               A
              assessed by invaliding       for computing of disability
                  medical board                    element
           Less than 50                                50
           Between 50 and 75                            75
                                                                               B
           Between 76 and 100                          100
      “8.2 For disabilities less than 100% but not less than 20% the
      above rates shall be proportionately reduced. No disability element
      shall be payable for disabilities less than 20%. Provisions contained
      in Para 7.2 above shall not be applicable for computing disability       C
      element. Disability actually assessed by the duly approved Release
      Medical Board/Invaliding Medical Board as accepted by the
      Pension Sanctioning Authority, shall reckon for computing disability
      element.”
       6. Para 8.2 falls under the heading of Disability Element on
                                                                               D
Disability/Discharge. A bare reading of Para 8.2 shows that where the
disability is more than 20% but less than 80%, the rates prescribed earlier
would be proportionately reduced. Again, it is made clear that no disability
element shall be payable for disabilities less than 20%. Para 8.2 also
provides that the provisions contained in Para 7.2 shall not be applicable
for computing disability element in such cases. Para 7.2 which deals           E
with officials of Armed Forces invalided out under circumstances
mentioned in Para 4.1 would be entitled to rounding of the disability.
Therefore, if the disability was less than 50%, it would be rounded off to
50%. If the disability was between 50 and 75% it would be rounded off
to 75%. If the disability was between 76 and 100% it would be rounded
                                                                               F
off to 100%.
       7. Reliance has been placed by the learned counsel for the
Respondent on the Order dated 10.12.2014 of this Court in “Union of
India and Ors. Versus Ram Avtar” (Civil Appeal No.418 of 2012 etc.)
and subsequent letter dated 18.4.2016 sent by the Ministry of Defence
                                                                               G
to the Chief of all the Armed Forces.
       8. This Court in Ram Avtar (supra), while approving the judgment
of the Armed Forces Tribunal only held that the principle of rounding off
as envisaged in Para 7.2 referred to herein above would be applicable
even to those who superannuated under Para 8.2. The Court did not
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994             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A     deal with the issue of entitlement to disability pension under the
      Regulations of Para 8.2.
             9. As pointed out above, both Regulation 37(a) and Para 8.2 clearly
      provide that the disability element is not admissible if the disability is less
      than 20%. In that view of the matter, the question of rounding off would
B     not apply if the disability is less than 20%. If a person is not entitled to
      the disability pension, there would be no question of rounding off.
             10. The Armed Forces Tribunal (‘AFT’), in our opinion, put the
      cart before the horse. It applied the principles of rounding off without
      determining whether the petitioner/applicant before it would entitled to
C     disability pension at all.
             11. In view of the provisions referred to above, we are clearly of
      the view that the original petitioner/applicant before the AFT is not entitled
      to disability pension. Therefore, the question of applying the provisions
      of Para 7.2 would not arise in his case. In this view of the matter, we set
D     aside the order of the AFT and consequently, the original application
      filed by the Respondent before the AFT shall stand dismissed.
             The appeal is allowed accordingly.


      Bibhuti Bhushan Bose                                            Appeal allowed.
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