Appeal for Disability pension in NA NA case : Possibility Analysis

Duties of the Armed Forces Personnel and officers are different from the employees of State or Central Civil service, CPSU/SPSUs etc.  Considering the facts, Govt of India, Ministry of Defence has introduced Disability pension for Armed forces retirees to compensate the disablement for life with some special conditions. The rules and regulations of Disability pension are so simple it can be easily conceptualised which is mentioned here in precise form.  Armed forces personnel Discharge/retired / invalidated out of of service are entitled following type of compensation due to disablement –

  1.  Disability Pension
  2. War Injury Pension
  3. Invalid Pension

Applicability of the all kind of the pension mentioned above is here :

  1.   Disability pension (Refer Pension Regulation for the Army Part -I Regs 81,82,95 and 98) – Persons of all three wings of Armed forces are entitled to get disability subject to fulfilling the following conditions:

    (i)  Disability should be attributable to military service/ aggravated by military service..

(ii)   Disability should be assessed by the Medical Authority (RMB/IMB) which should be minimum 1% for Medical Invalid cases and Minimum 20% for discharged due to other than Medical invalid cases.  Discharged on the grounds of non availability of sheltered appointment or Unwilling to accept sheltered appointment is also treated as Medical Invalidate out of service.

(iii)   No minimum Qualifying service is required for grant of disability pension.

(iv)  Disability pension consists of two elements viz – Service element and Disability Element.  Amount of service element is equal to Service Pension i.e 50% of Last Reckonable Emoluments (RE) i.e (Basic pay + MSP + Class Pay).   Amount of Disability Element is 30% of  RE for 100% disability.  For less than 100% disability, amount will be reduced proportionately.

(v)      Broadbanding of disability is applicable as per Rules.  For Invalid cases 1% to 49% disability is broadbanded to 50% whereas in case of other than medical invalidment, 20% to 49% is broadbanded to 50%.  For details please Read the article on broadbanding of disability pension available in this website.  DR is applicable on both the elements.

(vi)     CA – Constant attendance allowance –  applicable to 100% disabled ESM and not applicable to reemployed ESM.

(vii)   In case PMR (Discharge at own request), with less than 15 years of service (PBOR), only the disability element is authorised.  Service element is not applicable.. 

  1.   Invalid Pension  – Invalid pension is applicable to the soldiers invalidated out of service due to disability which is Not attributable to or aggravated by military service.  No minimum prescribed % of disability is considered for grant of invalid pension.  Qualifying service for grant of invalid pension is 10 years or more but less than 15 years for PBOR.  Amount of Invalid pension is equal to service pension i.e  50% of RE.  DR is applicable on invalid pension

N.B  –  As per modification of rules for Invalid pension , disabled soldiers with less than 10 years of service and invalidated out of service due to disability which is NA NA can also be awarded invalid pension if he is fully incapacitated for Military and Civil both the services.  This is applicable to Armed Forces personnel wef July 2020..

(c)   War Injury Pension – This is awarded to the BC cases where injury caused by war or war like situation / Ops etc in Field locations/active ops.  E;ligibility criteria is same as disability pension . Amount of the  War injury element is double of the disability element.  Remaining the same as a disability pension.

Denial of Disability Pension in NA NA cases

As per Regulation 58 of Pension Regulations for the Army 2008 Part -I, in NA NA cases, disability pension is not authorised.  It has been found that the persons retired on completion of coloured service / superannuation with disability which is termed as NA NA is difficult to justify in general logic. At the time of enrolment in the Military service, everyone entered as SHAPE-1 so, any disability originated during a long years of military service must be aggravated/attributable to military service.  But the rules and regulations do not recognise this logic. 

As a result, disabled soldiers appealed the appex court for grant of disability pension for NA NA cases considering disability originated during military service to be treated as aggravated/attributable to military service.  Prayer of the soldiers have been granted and on the basis of the orders of the apex court, the MoD has granted disability pension to the.  Referring to the case, hundreds and thousands of retired armed forces personnel officers and personnel appealed to the AFT and they mostly have been granted disability pension.  Details of the cases are here.  

How you May Get Benefited with Supreme Court Order 2013 on Disability Pension for NA NA Case

In view of the settled position of law on attributability, it is lawfully established that the RMB should not deny attributability to such claimants only by endorsing the name of disease & ICD code and indicate it as neither attributable to nor aggravated (NANA) by service. Therefore, all such claimants are entitled to get disability pension. Considering the facts and circumstances of such case of Low Medical Category personnel, it may be stated that that this reasoning of Release Medical Board for denying disability pension to claimants is not convincing and doesn’t reflect the complete truth on the matter.

in view of Orders of Supreme Court  in the case of Dharamvir Singh vs Union of India & Ors (supra) disability of such Low Medical Category, disability of such claimants should be considered as attributable/ aggravated by military service.

In some cases the medical board opined the disability to be neither attributable to nor aggravated (NANA) by service. In such case, the veteran is not granted any disability pension.  Such retired Armed Forces Personnel/Officers are given opportunity to Appeal the pension disbursing authority facilitate as First Appeal and Second Appeal respectively.

  In this context it must be noted that at the time of joining/enrolment, the candidates must found mentally and physically fit for service in the Concerned wings of Armed Forces and in 100% of cases there exist no note in the service documents that the candidate was suffering from any disease at the time of enrolment in Army/Navy/Air Force. So, it may be assumed that the disease of such personnel/officers was contacted during the service, hence it is attributable to and/or aggravated by Military Service.

Exact Verdict as mentioned in Supreme Court Order 2013 on Disability Pension for NA NA Case

  The law on attributability of a disability has been settled by the Hon’ble Supreme Court in the case of Dharamvir Singh Versus Union of India & Others, reported in (2013) vide Supreme Court Cases SLP No  316. In this case the Apex Court took note of the provisions of the Pensions Regulations, Entitlement Rules and the General Rules of Guidance to Medical Officers to sum up the legal position emerging from the same in the following words.

“29.1. Disability pension to be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over. The question whether a disability is attributable to or aggravated by military service to be determined under the Entitlement Rules for Casualty Pensionary Awards, 1982 of Appendix II (Regulation 173).

29.2. A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)].

29.3. The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally (Rule 9).

29.4. If a disease is accepted to have been as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service [Rule 14(c)].

29.5. If no note of any disability or disease was made at the time of individual’s acceptance for military service, a disease which has led to an individual’s discharge or death will be deemed to have arisen in service [Rule 14(b)].

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and

29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 – “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above (para 27).”

Law of Broad banding of disability as per Supreme Court Order 2013 on Disability Pension for NA NA Case

  The law on the point of rounding off (broadbanding) of disability pension is a new concept in view of Hon’ble Supreme Court judgment in the case of Union of India and Ors vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on 10th December 2014). In this Judgment the Hon’ble Apex Court nodded in disapproval of the policy of the Government of India in granting the benefit of rounding off (boradbanding) of disability pension only to the personnel who have been invalided out of service and denying the same to the personnel who have retired on attaining the age of superannuation or on completion of their tenure of engagement. The relevant portion of the decision is excerpted below:-

 “4. By the present set of appeals, the appellant (s) raise the question, whether or not, an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension. The appellant(s) herein would contend that, on the basis of Circular No 1(2)/97/D (Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available only to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel mentioned hereinabove.

5. We have heard Learned Counsel for the parties to the lis.

6. We do not see any error in the impugned judgment (s) and order(s) and therefore, all the appeals which pertain to the concept of rounding off of the disability pension are dismissed, with no order as to costs.

7. The dismissal of these matters will be taken note of by the High Courts as well as by the Tribunals in granting appropriate relief to the pensioners before them, if any, who are getting or are entitled to the disability pension.

8. This Court grants six weeks’ time from today to the appellant(s) to comply with the orders and directions passed by us.”

9. As such, in view of the decision of Hon’ble Supreme Court in the case of Union of India and Ors vs Ram Avtar & ors, we are of the considered view that benefit of rounding off of disability pension @ 40% for life to be rounded off to 50% for life may be extended to the applicant from three preceding years from the date of discharge.”

File your case in suitable forum and get disability pension for NA NA Case

In view of the above, all such claims of disability pension deserve to be allowed. Disability of applicants must be treated at least as aggravated by Army Service.

Thereafter most of the appeal to the Armed Forces Tribunal has been considered with logical order and granted Disability Pension with broadbanding benefits to all eligible claimants.  

All disable ex-servicemen who are not getting disability pension due to treating their disability by the RMB as Not attributable or Not aggravated by military service may approach the Armed Forces Tribunal so that everyone may get their legitimate rights.

Interested and willing persons may contact the renowned Advocate who has specialised knowledge and experience on Defence Service matter,  practising in  AFT.  To file your case may contact as per details mentioned below : 

Advocate Pradeep Mishra , Contact No – 8135019567