Home » Augustian V. Chief of Air Staff, O.P. No. 39594 of 2002 Ker.

Augustian V. Chief of Air Staff, O.P. No. 39594 of 2002 Ker.

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2009 (2) KLT SN 2 (Case No.2)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Justice S.Siri Jagan

2008-11-13T00:00:00

O.P. No. 39594 of 2002

Augustian v. Chief of Air Staff

Advocates appearing for the Parties : V.K.Sathyanathan; P.Parameswaran Nair, P.S.Sreedharan Pillai, John Varghese

J U D G M E N T

 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.


 

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