BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA v. KAMESWAR RAO

1. For the reasons stated in the application, the delay of 83 days in filing the rejoinder is condoned. The same be taken on record.

2. The application is disposed of.

3. The challenge in this writ petition filed by Brigadier SKS Rana (Retired) is to an order dated 31.05.2023 passed by the Armed Force Tribunal, Principal Bench, New Delhi (Tribunal) whereby the Tribunal has dismissed the Original Application (OA) No.531/2016 by stating in paragraph no.28 as under:-

4. The facts as noted from the petition are, the petitioner was commissioned in the Army on 14.11.1971. He retired from service on 31.07.2005 on reaching the age of superannuation in the medical category Shape-I.

5. It was his case before the Tribunal that, on 09.07.1973, while he was deployed in the war zone ‘OP Cactus Lily’ from 25.11.1971 to 13.03.1973, he had sustained gunshot injury in his left hand which resulted into ‘Traumatic Amputation’ in the left hand index finger rendering the left hand thumb partially defective in its movement, which according to him, was attributable to military service.

6. According to him, amputation of left hand index finger is a permanent disability and there are no chances of improvement in future and the possibility of deterioration of the same cannot be ruled out.

7. According to him, despite amputation of left hand index finger, Release Medical Board (‘RMB’) at the time of superannuation of the petitioner on 31.07.2005 declared him to be in Shape-I medical category. Thus, categorisation in Shape-I medical category, at the time of superannuation, according to him, resulted in denial of the benefits of permanent disability.

8. Aggrieved by the same, the OA was filed by the petitioner before the Tribunal with the following prayers:- “(a) To direct the Respondents to hold a Re-Survey Medical Board and properly assess the percentage of the disability and the medical category resulting there from on account of his permanent disability of his amputation of left index finger which has no possibility of any further improvement, as well as the injury sustained to cervical vertebra. (b) The Respondent be directed to grant disability pension based on the percentage of disability assessed by the medical board which is duly rounded of in accordance with the broad banding formula vide GOI policy dated 31.01.2001 w.e.f. from the date of superannuation alongwith the @ 12% interest on the arrears.

(c) That the Applicant be awarded cost of the litigation @

(d) To pass any such other and further order or orders as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in the facts and circumstances.”

9. The RMB in its proceedings dated 24.04.1973, mentioned traumatic amputation of left hand index finger. It was also stated that the disability was contracted in service, as such it was the case of the petitioner that, he is entitled to disability pension on the basis of the disability assessed by the RMB to be rounded off in accordance with the broad banding formula in terms of the policy dated 31.01.2001 w.e.f. from the date of superannuation.

10. Per contra, the case of the respondents was that though the petitioner was treated to be on duty, even if he was on casual leave or annual leave, but the injury suffered must have causal connection as attributable to or aggravated by military service. It was contended that the injury suffered was not on duty. It was also the case of the respondents that the limitation for seeking any benefit based on disability must be within 07 years of the date of the retirement. The petitioner could not have sought the benefit after 12 years, as the OA was filed on 05.05.2016 from the date of his discharge, i.e. 31.07.2005. The respondents reiterated that the opinion of the RMB should be given due weightage and credence, in as much as at the time of retirement, the petitioner was brought before the RMB and was found to be discharged in Shape-I medical category. The respondents stated that the petitioner is not entitled to the disability element of pension.

11. We have heard the learned counsel for the parties at length. Suffice to state that though the petitioner had suffered injury in service, but still he had been categorised in Shape-I. In that sense, even if there is amputation of left hand index finger, he was in Shape-I medical category.

12. During the course of submissions, the counsel for the respondents stated that the petitioner had got promotion(s) being in Shape-I medical category. It is important to note that the injury, if any, suffered by the petitioner was between the period from 25.11.1971 to 13.03.1973. Even at the time of discharge on 31.07.2005, the RMB showed him in Shape-I medical category. Nothing has been shown to us depicting that the petitioner was categorised in Shape-II medical category. So in that sense, even if he suffered injury ‘Traumatic Amputation’ of left hand index finger, he continued to be in Shape-I medical category. In other words, he was never in low medical category.