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Super Annuated Air force officer not entitled to disability pension when disability is less than 20%

Union of India & Others v. Wing Commander S.P. Rathore, Civil Appeal No. 10870/2018 – 11th December, 2019

CORAM: Two judge bench comprising of Justice Deepak Gupta & Justice Sanjiv Khanna

Wherein in this case, it was being held that

“When we make reference to the Defence Service Pension Regulations under Regulation 37(a) and 37(b) of the Air Force Act, 1961, an Air Force Officer shall not be entitled to Disability Pension when the disability is less than 20%”

The facts of the case are that Wing Commander S.P. Rathore at the time of the superannuation of his service, claims disability pension due to his disability aggravating at the time of his service. The disability is less than 20%

The question of law raised is as to whether disability pension is at all payable or not by the Union of India in case of an Air Force Officer who is superannuated from service in course of duty and whose disability is less than 20%

The provisions of Regulation 37(a) & 37(b) under Defence Service Pension Regulations of the Air Force Act, 1961 were examined and under the heading “Disability Pension – when admissible” were read as follows

Regulation 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% or over, may on retirement be awarded disability pension consisting of a service element & a disability element in accordance with the regulations in this section.

Regulation 37(b) – The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II

Both the learned counsels appearing for the Union of India and the respondent, respectively, examined Paragraphs 7.2 & 8.2 of the Circular issued by the Ministry of Defence dated 31.1.2001. While Para 7.2 states disability should have happened as per Para 4.1 of the Circular & disability pension is calculated and awarded based upon a table, Para 8.2 also states that disability pension cannot be awarded when the disability is less than 20%

The Armed Forces Tribunal supported the Union of India and contended that if the respondent is granted disability pension when he has disability less than 20% then it would be a violation to Regulation 37(a) of the Act & Para 8.2 of the Circular.

The respondent on the other hand, using the precedent Union of India v. Ram Avtar contended that in this precedent they had taken only Para 7.2 into consideration and in this current case too if that alone is being taken into consideration, then the pension could be applicable even to those who are superannuated under Para 8.2 of the Circular.

The Court observed that The Armed Forces Tribunal had applied the principles of rounding off without determining whether the Respondent before it would be entitled to disability pension at all

The Court based upon the examination of all provisions relevant to this case, came to the conclusion that since the disability of the respondent is less than 20% he would not be entitled to disability pension. The Court also held that the applicability of Para 7.2 of the Circular does not arise at all.

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 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.

The original appeal filed by the Respondent before The Armed Forces Tribunal shall stand dismissed.

– Nardhana Ram

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