IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 OP.No. 39594 of 2002(L) ------------------------------- PETITIONER(S): ------------------------ AUGUSTIAN P.A. ,EXSGT-IN WING AF C/O. 99 APO S/O. SRI.U.ABRAHAM, PUTHENPARAMBIL VADAKARA P.O., THALAYOLAPARAMBU, KOTTAYAM DISTRICT KERALA BY ADV. SRI.V.K.SATHYANATHAN RESPONDENT(S): ------------------------- 1. CHIEF OF THE AIR STAFF, AIR HEADQUARTERS VAYU BHAWAN, NEW DELHI 2. AIR OFFICER COMMANDING, AIR FORCE RECORD OFFICE, SUBROTO PARK, NEW DELHI 3. CONTROLLER OF DEFENCE ACCOUNT (AF), DROUPATHI GHAT, ALLAHABAD UP 4. SECRETARY, AIRFORCE GROUP INSURANCE, SUBRATO PARK, NEW DELHI 5. UNION OF INDIA, REPRESENTED BY UNDER SECRETARY, MINISTRY OF DEFENCE, NEW DELHI BY P. PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC FOR R5 SRI.JOHN VARGHESE, SCGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 39594 of 2002(L) I.A. NO. 17208 OF 2004 IN O.P.39594 OF 2002 DIRECTION PETITION DISMISSED. SD/- S.SIRI JAGAN, JUDGE 13.11.2008. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF EXTRACT OF THE MEDICAL BOARD PROCEEDINGS. EXT.P2 - TRUE COPY OF THE ORDER DATED 25.01.2001 OF HON'BLE HIGH COURT OF PUNJAB & HARYANA. EXT.P3 - TRUE COPY OF THE LETTER DATED 20.02.2002 ISSUED BY RESP. NO.2. EXT.P4 - TRUE COPY OF THE GUIDE LINE FOR GIS 97 SCHEME ISSUED BY RESP. NO.4. RESPONDENTS' EXHIBITS: EXT.R1(a) - TRUE COPY OF THE RELEVANT PAGES OF THE LETTER NO. 12(2)/97/D [PEN C] DATED 31.1.2001 ISSUED BY THE GOVERNMENT OF INDIA. EXT.R1(b) - TRUE COPY OF THE PARAGRAPH 6 OF AIR HQ(VB) LETTER NO. AIR HQ/C40651/3/PA(CPA) DATED 20/10/1998. S.SIRI JAGAN, J ================== O.P.No.39594 of 2002 ================== Dated this the 13th day of November, 2008. J U D G M E N T The petitioner joined the Indian Air Force on 15.5.1985. While in service he obtained LLB degree. Based on that degree he applied for permanent commission. Thrice he was unsuccessful. Thereafter he sought discharge from service. The respondents refused to discharge him from service. The petitioner approached the High Court of Punjab and Haryana. By Ext.P2 judgment, the High Court held that he is entitled to discharge and accordingly, directed the respondents to consider the case of the petitioner for discharge. Pursuant thereto, the petitioner was discharged from service. The petitioner was sanctioned service pension accordingly, since he had sufficient service for claiming pension. The petitioner's claim now is for disability pension on account of a disability contracted by him, while he was in service. According to the petitioner, as is evident from the medical records, now produced by the respondents, as directed by this court, which is clear that while in service the petitioner had contracted the O.P.No.39594 of 2002 - 2 - disease of Tubercular Pleural Effusion which resulted in disability which was assessed by the Medical Board constituted by the respondents as 20%. Consequent to that disability, the petitioner was put in a lower medical category. While he was continuing in that lower medical category, he was released under the Release Regulations. The medical records also certified that the said disability was attributable to service. The petitioner submits that, in view of the disability attributable to military service, the petitioner is entitled to disability pension. The petitioner relies on Regulation 153 of the Pension Regulations for the Indian Air Force read with Appendix II thereof to claim disability pension. According to the petitioner, although the petitioner have not been invalided from service which is a condition precedent for becoming eligible for disability pension under the Regulation 153. By virtue of Clause I of Appendix II, the petitioner having been released under the Release Regulations in a lower medical category, he is entitled to be treated as invalided out of service, as a result of which he is entitled to disability pension under Regulation 153 read with Appendix II. In support of this contention, he also relies on a judgment of the High Court of Delhi in C.W.P. No. 2967 of 1989 a copy of which he has produced along with his reply affidavit as Ext.P5. He would O.P.No.39594 of 2002 - 3 - further contend that the petitioner has been denied disability pension on the ground that he had got discharge from service on his own request and disability pension is payable only when an individual is discharged from service, otherwise than at his own request which is not correct. He would submit that nowhere in the Pension Regulations relating to disability pension is there a condition that for becoming eligible for disability pension for a disability, which was manifest at the time of discharge itself. The petitioner would contend that reliance on Regulation 158 for this is misplaced, since Regulation 158 is applicable only to manifestation of a disability after the individual is discharged from service, which is not case of the petitioner, in so far as the disability was there at the time of his discharge from service itself. The petitioner therefore seeks the following reliefs: “(i) a writ of certiorari or other appropriate writ, order or direction calling for the records and to quash Ext.P-3 order dated 20.02.2002 passed by respondent No.3. (ii) a writ of certiorari/mandamus or other appropriate writ, order or direction holding that the petitioner is entitled to disability pension and further directing the respondents to pay disability pension to the petitioner as applicable to those suffering 20% disability from the date of discharge. (iii) a writ of mandamus or other appropriate writ, direction or order directing Respondent No. 5 to pay Rs.50,000/- from Airforce Group Insurance with interest @ 18% from the date of discharge till date of payment to petitioner as entitled by those suffering 20% disability. O.P.No.39594 of 2002 - 4 - (iv) a writ of mandamus or other appropriate writ, direction or order directing the respondents to pay interest @ 18% for delayed payment of communication amount of Rs.1,60,173/- i.e. from 15 May 2001 to the date of payment on 02.04.2002.” 2. A counter affidavit is filed on behalf of the respondents denying the claims of the petitioner. According to them, no disability pension is payable when a person is discharged from service at his own request. Further they would contend that disability pension is payable only to a person who is invalided out of service on account of disability which is attributable to Air Force service and is assessed as 20% or over, which is not the case of the petitioner. They would submit that the respondents were not inclined to discharge the petitioner from service on any ground, and the petitioner got his discharge by a judgment from the Punjab and Haryana High Court which he obtained in a writ petition seeking direction to the respondents to discharge him from service at his own request. Therefore, it is clear that the petitioner was not invalided out of service on account of any disability which is attributable to his service in the Air Force assessed at 20% or over and therefore he is not eligible for disability pension. 3. I have considered the rival contentions in detail. 4. The primary conditions for grant of disability pension is contained in regulation 153 which reads thus: O.P.No.39594 of 2002 - 5 - “153. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by air force service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by air force service shall be determined under the regulations in Appendix II.” 5. The relevant paragraph of Annexure II refer to in Regulation 153 reads thus: “1. With effect from 1st April, 1948, in supersession of all previous orders on the subject, the entitlement to disability and family pension, children's allowance and death gratuities will be governed by the following rules. Invaliding from service is a necessary condition for the grant of a disability pension. An individual who at the time of his release under the Release Regulations is in a lower medical category than that in which he was recruited will be treated as invalided from service. Airmen who are placed permanently in a medical category other than 'A' and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalided out of service.” (Emphasis supplied) 6. Reading Regulation 153 with Appendix II together, I find considerable force in the contention of the petitioner. Admittedly, it is not disputed before me that the petitioner was released under the Release Regulation. It is also not disputed that as per the medical records the petitioner has contracted a disability of 20% attributable to service and on account of that disability he was put in a lower medial category and at the time of release he was in a lower medical category than which he O.P.No.39594 of 2002 - 6 - was in when he entered service. That being so, the petitioner squarely comes within the above said provision in Appendix II as a result of which he must be deemed to be invalided out of service, consequent to which Regulation 153 becomes applicable to the petitioner. That being so, the petitioner is certainly entitled to grant of disability pension as provided in Regulation 153. 7. But admittedly the petitioner is drawing service pension under Regulation 104 of the Pension Regulations no individual is entitled to draw more than one pension under those regulation. The counsel for the petitioner would submit that the petitioner is not seeking two pension but he is only seeking pension, taking into account the disability element also of the pension. According to the petitioner, under Regulation 161, the amount of disability pension has to be calculated on two counts; one on the service element and the second on the disability element. According to the petitioner, he is eligible for pension, taking into account the disability element also. I leave it to the respondents to decide that issue in accordance with Regulation 104 read with Regulation 161. If the petitioner is entitled to calculate pension on the basis of the disability element also in addition to the service element his pension would be revised accordingly. O.P.No.39594 of 2002 - 7 - 8. The learned Assistant Solicitor General pointed out that as per medical records the probable duration of his degree of disablement is only three years and therefore the petitioner's disability has to be reassessed. It would be open to the respondents to require the petitioner to undergo appropriate examination by a medical board to ascertain whether he continues to be suffering from the said degree of disability as assessed by the earlier medical board recording his disability as 20%. Appropriate orders in accordance with the above findings shall be issued within a period of two months from the date of receipt of a copy of this judgment and arrears, if any, due to the petitioner on account of the same shall be disbursed within another month therefrom. The original petition is disposed of as above. Needless to say that if the petitioner is entitled to group insurance, taking into account disability element also on account of my above findings the same shall also be considered and orders passed within the above period. S.SIRI JAGAN, JUDGE rhs