Case: Union of India and Ors Vs. S.P. Rathore

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 :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 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.

Reasoning:
6. Para 8.2 falls under the heading of Disability Element on 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 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 off to 100%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 deal with the issue of entitlement to disability pension under the Regulations of Para 8.29. 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 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 off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all11. 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 case2. We may make reference to the Defence Service Regulations Pension Regulations for the Air Force, 1961.3. 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 above. Furthermore, this disability must be attributable or aggravated by service rendered in the Air Force4. 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 Appellant not having 20% disability is at all entitled to disability pension8. 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 deal with the issue of entitlement to disability pension under the Regulations of Para 8.29. 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 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 off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at all11. 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 case8. 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 deal with the issue of entitlement to disability pension under the Regulations of Para 8.2In 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 off10. The Armed Forces Tribunal (AFT), in our opinion, put the cart before the house. It applied the principles of rounding off without determining whether the petitioner/applicant before it would entitled to disability pension at allreferred to herein above would be applicable even to those who superannuated under Para 8.2If a person is not entitled to the disability pension, there would be no question of rounding