Jharkhand High Court
Dilip Kumar Son Of Late Shivnath Mahto vs Union Of India Through Secretary To The ... on 9 April, 2025
Author: Ananda Sen
Bench: Ananda Sen
2025:JHHC:10998
2019:JHHC:39987
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 547 of 2018
----
Dilip Kumar son of Late Shivnath Mahto, resident of Village Piri,
Near Sri Narayan High School, Barkakana, Post Office
Barkakana, Police Station Patratu, District Ramgarh, Jharkhand,
Pin 829102.
... Petitioner
-versus-
1. Union of India through Secretary to the Ministry of Defence,
Tughlak Road Police Station, South Block, New Delhi 110011.
2. The Chief of Air Staff, Air Headquarters (Vayu Bhawan),
Tughlak Road Police Station, New Delhi 110106.
3. The Air Officer Commanding (AOC) Air Force Record Office,
P.S. Dhaula Kuan, Subroto Park, New Delhi 110010.
4. The Principal Director, Directorate of Air Veterans, Air
Headquarters, P.S. Dhaula Kuan Subroto Park, New Delhi
110010.
5. Deputy Controller of Defence Accounts, Air Force (Dy CDA,
AF), P.S. Dhaula Kuan, Subroto Park, New Delhi 110010.
... Respondents
----
CORAM : SRI ANANDA SEN, J.
----
For the Petitioner : Mr. Shailesh Poddar, Advocate
For the Respondents: Mr. Shiv Kumar Sharma, Sr. Panel
Counsel
Mr. Jeetendra Kumar Mishra, Advocate
----
ORDER
Reserved on 10.03.2025 Pronounced on 09.04.2025
16/ 09.04.2025 By filing this writ petition, petitioner has prayed to quash the order
dated 28.08.2014 (Annexure 15), whereby the competent authority has
declined Disability Pension to the petitioner on the ground that his primary
hypertension is not attributable nor aggravated by any military service. Further,
he has prayed to quash the order dated 27.01.2016, passed by the First
Appellate Authority, whereby his first appeal against rejection of disability
pension was rejected. Further, he has also challenged the order dated
14.07.2017 passed by the Second Appellate Authority, who also rejected the
2025:JHHC:10998
2019:JHHC:39987
second appeal of the petitioner. Further prayer has been made to pay the
petitioner the Disability Pension, which he is entitled to.
2. Learned counsel appearing on behalf of the petitioner submits that
the only ground taken by the respondent authority to deny the claim of the
petitioner is that the disability (which is hypertension in this case) does not
have close time association or proximity with his service, hence, he is not
entitled for the benefit. It is his case that admittedly the petitioner is suffering
from hypertension, which is a disability, as per the Rules. Further, admittedly,
the hypertension had occurred during his service period. It naturally has to be
considered that it had developed during service period and stress arising out
of service is the prime cause for the same and that being so, respondents
cannot deny the benefit of disability pension to the petitioner. Learned counsel
further submitted that the petitioner is getting all other benefits, which the other
personnel get on retirement/superannuation. Learned counsel for the petitioner
argued that the respondents in Counter Affidavit came up with different
grounds for non-payment of Disability Pension and such ground is not
mentioned in the impugned order. The grounds, which have not been
mentioned in the impugned order cannot be made applicable for denying the
petitioner the benefits of Disability Pension.
Learned counsel for the petitioner referred to The Pension
Regulations for The Air Force, 1961 Part I and argued that as per annexure to
the said regulations, Hyperpiesia is a disease affected by stress and strain and
is admitted by the respondents to be a disability. As per him, in terms of
Appendix II, if 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. In this case, petitioner's
medical state is lower, thus, he is entitled for the benefit. Further, he referred
to the letter dated 18th January, 2010 contained in F. No. 1(3)/ 2002/
Vol.1(I/D(Pen/Pol) and the Appendix to the Ministry of Defence Letter No.
1(3)/2002/D(Pen/Pol) dated 18.01.2009, which is Entitlement Rules for
Casualty Pensionary Awards to Armed Forces Personnel, 2008. He submitted
that as per Clause 4 of the said document, invalidation from service with
disablement caused by service factors is a condition precedent for grant of
disability pension. He submitted that as per Clause 8, even after retirement/
discharge from service, if the disease arose within 7 years thereafter, such
disease will be recognized as attributable to service. As per him, thus, even if
2025:JHHC:10998
2019:JHHC:39987
after his discharge, the disease had surfaced, in view of the circular, he is
entitled for disability pension, whereas in this case the disability occurred while
he was on service.
He referred to the judgment of the Hon'ble Supreme Court in the
case of Dharamvir Singh versus Union of India & Others reported in (2013)
7 SCC 316.
3. Learned counsel appearing on behalf of the Union of India argued
that the petitioner was not discharged from service on the ground of disability
or physical illness. Discharge of the petitioner was by way of punishment and
as the petitioner was discharged by way of punishment, he is not entitled to
get Disability Pension. He submits that to get the benefit of Disability Pension,
one has to be discharged from service only on account of disability and none
else. In this case, since the petitioner was discharged from service on the
ground of misconduct, he is not entitled to get Disability Pension.
4. In order to appreciate the arguments of the parties, I have gone
through the records of the case. I find that the petitioner was in Indian Air
Force. He was Defence System Operator. Vide order dated 11th December,
2013, he was discharged from service in terms of Rule 15(2)(g)(ii) of the Air
Force Rules, 1969 on the ground of being habitual offender. The Competent
Authority held that his service is no longer required and he is not suitable for
retention in the Indian Air Force. Be it noted that in this writ petition, I am not
adjudicating the correctness and validity of the order of discharge, as the same
has been questioned by the petitioner in a separate proceeding. Admittedly,
the fact remains that the petitioner was discharged from service, which, in this
case, is a punishment. The petitioner, thereafter, applied for grant of Disability
Pension on the ground that it is an admitted case that he is suffering from
hypertension. The fact that the petitioner is suffering from hypertension is not
denied and it is also not denied that he was suffering from the same when he
was posted in Bangalore, sometime in September, 2012. His application for
grant of Disability Pension was negated on the ground that he was posted in
Bangalore, which is a Peace Station from 09.04.2009 to 14.04.2013 and there
is no close time association with stress/ strain in this out of field service.
Though as per the medical survey report, he was fit to be released from
service under low medical category, the Competent Authority on 28th August,
2014 has held that the petitioner is not entitled to Disability Pension in terms of
Regulation 153 of Pension Regulations for The Air Force, 1961 Part I since the
2025:JHHC:10998
2019:JHHC:39987
Release Medical Board proceedings has recorded that Primary Hypertension
is neither attributable nor aggravated by any service. All his appeals also stood
dismissed.
5. Now, the question, which falls for consideration is that whether the
petitioner is entitled for Disability Pension; and whether the grounds for
rejecting the claim of the petitioner are justifiable or not.
6. The Pension Regulation for The Air Force, 1961 Part I provides
for Pensionary Awards. Section IV of Chapter III of the aforesaid Regulations
deals with Disability Pensionary Awards. Rule 153 lays down the primary
conditions for grant of Disability Pension. The aforesaid provision provides that
unless otherwise specifically provided, the Disability Pension is granted to an
individual, who is invalidated from service on account of disability, which is
attributable to, or aggravated by Air Force Service and is assessed at 20% or
over. The issue or the question, whether the disability is attributable to or
aggravated by Air Force Service shall be determined under the provision in
Appendix II. Rule 153 under Section IV of Chapter II of the Pension Regulation
for the Air Force, 1961 Part I reads as under: -
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.
7. As per Appendix II, invalidation from service is a necessary
condition for grant of Disability Pension. An individual, who, at the time of his
release under the Release Regulations, is under a lower medical category
than that in which he was recruited will be treated as invalidation from service.
As per the said regulation, disablement or death shall be accepted as due to
Air Force Service, provided that it is certified that the disablement is due to a
wound, injury or disease, which is attributable to Air Force Service; or existed
before or arose during Air Force Service and has been and remains
aggravated thereby. Further as per the said appendix, there must be casual
connection between disablement and Air Force service for attributability or
aggravation to be conceded. The Entitlement Rules, which is Appendix II, also
provides that in cases in which disease did not actually lead to the member's
2025:JHHC:10998
2019:JHHC:39987
discharge from service, but arose within 7 years thereafter, may be recognized
as attributable to service if it can be established medically that the disability
was delayed manifestation of a pathological process set in motion by service
conditions obtaining prior to discharge and that if the disability had been
manifest at the time of discharge the individual would have been invalided out
of service on this account. The relevant portion of Appendix II containing
Entitlement Rules reads as under: -
Entitlement Rules
The entitlement rules set out below apply in cases
where the disablement or death, on which the claim to
casualty pensionary award is based, takes place on or
after the 1st April 1948. These entitlement rules apply to
all personnel who are governed by Indian Air Force
Pension Regulations.
The rules do not apply to an individual where
continuous service commenced from a date prior to the
1st April 1948, in so far as his disablement or the cause of
his death, as the case may be, can be regarded as
attributable to/aggravated by his service during the
period 3rd September 1939 to the 31st March 1948 in
accordance with the entitlement criteria published in Air
Force Instruction No.39 of 1944.
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. Air-
men 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.
2. Disablement or death shall be accepted as due to air
force service provided it is certified that: -
(a) the disablement is due to a wound, injury or disease
which -
2025:JHHC:10998
2019:JHHC:39987
(i) is attributable to air force service ; or
(ii) existed before or arose during air force service and
has been and remains aggravated thereby ;
(b) the death was due to or hastened by -
(i) a wound, injury or disease which was attributable to air
force service;
(ii) the aggravation by air force service of a wound, injury
or disease which existed before or arose during air force
service.
3. There must be a casual connection between
disablement and air force service for attributability or
aggravation to be conceded.
4. ...
5. Post-discharge claims- Cases in which a disease did
not actually lead to the member's discharge from service
but arose within 7 years thereafter, may be recognized as
attributable to service if it can be established medically
that the disability was delayed manifestation of a
pathological process set in motion by service conditions
obtaining prior to discharge and that if the disability had
been manifest at the time of discharge the individual
would have been invalided out of service on this account.
...
8. In this case, it is admitted by the respondents also that the
petitioner was suffering from hypertension and that too it was assessed as
more than 20%. The ground taken by the respondents to deny the claim of the
petitioner is that this hypertension had occurred when he was at Peace
Station, thus, it cannot be directly attributable to or aggravated by Air Force
Service. I am not in agreement with the aforesaid conclusion arrived at by the
respondents. Nowhere in the Pension Regulations for The Air Force 1961 Part
I, it is provided that a disability, which occurs while being posted at Peace
Station, will not attract Disability Pension. As per Rule 153, disability must be
attributable to or aggravated by Air Force Service. Here "The Air Force
Service" means the entire tenure of service of the personnel. It is immaterial,
whether he is posted at Peace Station or at the field. The words "Air Force
Service" includes all type of posting of the personnel. It is the entire tenure of
his service, i.e., from entry in service till exit, which has to be considered. This
interpretation gets strengthened from the Entitlement Rules for Casualty
Pensionary Awards to the Armed Forces Personnel, 2008, which is circulated
by letter dated 18th January 2010 contained in F. No.1(3)/ 2002/ Vol.III/
2025:JHHC:10998
2019:JHHC:39987
D(Pen/Pol). As per Clause 4 of the said Entitlement Rules, the condition
precedent for grant of Disability Pension is invalidation from service because
of disablement caused by service factor. Here also there is no differentiation
between Peace posting or Field posting. Clause 4 of the Entitlement Rules for
Casualty Pensionary Awards to Armed Forces Personnel, 2008 reads as
under:-
4. Invalidment from Service:
(a) Invalidation from service with disablement caused by
service factors is a condition precedent for grant of
disability pension. However, disability element will also
be admissible to personnel who retire or are discharged
on completion of terms of engagement in low medical
category on account of disability attributable to or
aggravated by military service, provided the disability is
accepted as not less than 20%.
(b) An individual who is boarded out of service on
medical grounds before completion of terms of
engagement shall be treated as invalided from service.
(c) PBOR and equivalent ranks in other services who are
placed permanently in a medical category other than
SHAPE 1 or equivalent and are discharged because (i) no
alternative employment suitable to their low medical
category can be provided, or, (ii) they are unwilling to
accept alternative employment, or, (iii) they having been
retained in alternative employment are discharged before
the completion of their engagement, shall be deemed to
have been invalided out of service.
Further, Appendix II, which has been referred to above at
paragraph 7, especially Clause 5 provides that even after discharge from
service within 7 years if some disability occurs, it will be treated that personnel
is entitled for Disability Pension. This clause clearly provides that even after
leaving the service, if there is manifestation of disability within 7 years, it will be
deemed that the said disability has occurred because of the service, which he
has rendered. This also suggests that place and nature of posting is of no
relevance. Thus, when admittedly the petitioner is suffering from hypertension,
even if it is life style related, but since this is a disability under the Pension
Regulations for The Air Force 1961, the respondents could not have
concluded that the disability cannot be attributable nor is aggravated by Air
Force Service, when admittedly the said hypertension manifested during his
2025:JHHC:10998
2019:JHHC:39987
service tenure.
Thus, the grounds taken by the respondents in rejecting the claim
is nullified and is rejected.
9. Another ground taken by the respondents in argument, though it is
not in the impugned order, is that as per the Rules, since the petitioner has
been discharged from service on the disciplinary grounds, in terms of Rule
15(2)(g)(ii) of the Air Force Rules, 1969, after conducting proper proceeding
for misconduct on the ground of habitual offender and as it was held that "his
services no longer required-unsuitable for retention in the IAF", he is not
eligible to get Disability Pension, even if there is disability in terms of Pension
Regulations for The Air Force, 1961.
10. It is true that this is not a ground for rejecting the claim of the
petitioner, but when this argument has been put forth, this Court has to look
into this issue also as because I am of the opinion that if a personnel is not
entitled as per the law or scheme to get a relief, merely not taking that legal
ground in the rejection order, will not make him eligible to get the said relief.
In a case where if the Court only restricts itself to the grounds
spelt out in the rejection order and sets aside the order of rejection only on the
grounds mentioned therein, it will amount to giving relief to the petitioner, but if
that relief is not legally available to the petitioner, the petitioner cannot get the
relief only on the technical ground that the said ground was not there in the
rejection order.
The Hon'ble Supreme Court in the case of M/s Shiv Shankar Dal
Mills and Others versus State of Haryana and Others reported in (1980) 2
SCC 437 at paragraph 6 thereof, has held as under: -
6. Article 226 grants an extraordinary remedy which is
essentially discretionary, although found on legal injury.
It is perfectly open for the court, exercising this flexible
power, to pass such order as public interest dictates
and equity projects:
Courts of equity may, and frequently do,
go much further both to give and withhold relief
in furtherance of the public interest than they are
accustomed to go where only private interests
are involved. Accordingly, the granting or
withholding of relief may properly be dependent
upon considerations as of public interest .... [27
Am Jur 2/d Equity, p. 626]
2025:JHHC:10998
2019:JHHC:39987
...
Further, the Hon'ble Supreme Court in a very recent judgment in
the case of M.S. Sanjay versus Indian Bank and Others reported in 2025
SCC OnLine SC 368 at paragraphs 9 and 10 thereof, while referring to the
judgment in the case of Shiv Shankar Dal Mills (supra), has held as follows: -
"9. It is well settled that interference by the Writ Court
for mere infraction of any statutory provision or norms,
if such in-fraction has not resulted in injustice is not a
matter of course. In the case of Shiv Shanker Dal Mills v.
State of Haryana, (1980) 2 SCC 437, the dealers in that
case had paid market fees at the increased rate of 3%,
which was raised from the original 2 per cent under
Haryana Act 22 of 1977. The excess of 1 per cent over
the original rate was declared ultra vires by this Court in
the case of Kewal Krishna Puri v. State of Punjab, (1980)
1 SCC 416. The excess of 1 per cent over the original
rate having been declared ultra vires, became
refundable to the respective dealers from whom they
were recovered by the Market Committee concerned.
The demand for refund of the excess amounts illegally
recovered from them not having been complied with, the
dealers filed Writ Petitions under Article 32 and Article
226 of the Constitution for a direction to that effect to
the Market Committee concerned. The Market
Committees contended that although the refund of the
excess collections might be legally due to the dealers,
many of them had in turn recovered this excess
percentage from the next purchasers. While disposing
of the petition and laying down guidelines, this Court
held as under:
"Article 226 grants ... as of public interest."
10. It has been rightly observed that legal formulations
cannot be enforced divorced from the realities of the
fact situation of the case. While administering law it is to
be tempered with equity and if the equitable situation
demands after setting right the legal formulations not to
take it to the logical end, the High Court would be failing
in its duty if it does not notice equitable consideration
and mould the final order in exercise of its extraordinary
jurisdiction. Any other approach would render the High
Court a normal Court of Appeal, which it is not. It is a
2025:JHHC:10998
2019:JHHC:39987
settled principle of law that the remedy under Article 226
of the Constitution of India is discretionary in nature
and in a given case, even if some action or order
challenged in the petition is found to be illegal and
invalid, the High Court while exercising its extraordinary
jurisdiction thereunder can refuse to upset it with a view
to doing substantial justice between the parties."
11. Considering the aforesaid proposition of law, now the second
issue is to be decided whether the petitioner is entitled for the grant of
Disability Pension as per the Pension Regulations for The Air Force, 1961,
even if the said disability has occurred within his service tenure, on the facts of
this case.
12. The conditions for grant of Disability Pension is enumerated in
Rule 153 of the Pension Regulations for The Air Force, 1961, as has been
discussed and quoted at paragraph 6 hereinbefore.
13. Hypertension is a disability, which is evident from Annexure to
Pension Regulations for The Air Force 1961, which classifies the diseases. As
per Clause (B), hyperpiesia is a disease affected by stress and strain and
same is hypertension.
14. As per the aforesaid provision, i.e. Rule 153 Disability Pension
can be granted to an individual on the fulfillment of following conditions :
individual must be invalidated from service on account of disability; such
disability is attributable to or aggravated by the Air Force Service; and the said
disability has to be assessed at 20% or over.
All these conditions must exist simultaneously and absence of any
one will not make a person entitled to get Disability Pension.
15. Further, the Entitlement Rules for Casualty Pensionary Awards to
Armed Forces Personnel, 2008 as contained letter dated 18th January, 2010
bearing F. No. 1(3)/2002/Vol.III/D(Pen/Pol), vide Clause 4 (a) provides
invalidation from service with disablement caused by service factor is a
condition precedent for grant of disability pension. Both the provisions, i.e.,
Rule 153 of the Pension Regulations for The Air Force, 1961 and Clause 4(a)
of the Entitlement Rules for Casualty Pensionary Awards to Armed Forces
Personnel, 2008 provides that detatchment / discharge from service should be
on the ground of disability. Only when a personnel is discharged from service
on the ground of disability, he is entitled for disability pension. Since the
entitlement of disability pension is guided by Rule 153 of the Pension
2025:JHHC:10998
2019:JHHC:39987
Regulations for The Air Force, 1961, conditions of Rule 153 must be fulfilled to
earn the Disability Pension. If the conditions are not fulfilled, one cannot claim
Disability Pension as a matter of right. As per Rule 153 of the Pension
Regulations for the Air Force, 1961, the invalidation from service must be on
the ground of disability. Nowhere in the said Rules, it has been provided that if
a personnel is invalidated from service on any ground and he is found to be
disable, he is entitled for disability pension.
16. In this case, the petitioner has been discharged from service on
disciplinary grounds, which is a punishment. Discharge on disciplinary grounds
can also be said to be invalidating him from continuing in service. Invalidation
on the ground of disciplinary procedure and punishment is not provided for in
Rule 153. What is provided is invalidation on the ground of disability. The fact
that the petitioner has been discharged vide an order of the competent
authority on the ground that he is a habitual offender and his services are no
longer required and he is not entitled for service is admitted (though the said
order has been challenged in a different writ petition), but as on date, he is
treated to be a discharged personnel and the said discharge is a punishment.
17. The entitlement emanates from Rule 153 and the conditions
precedent is there should be invalidation from service on the ground of
disability only. Under Rule 153, except disability, there are no other grounds to
attract entitlement of disability pension. In this case, admittedly, the petitioner
has been discharged, but not on the ground of disability. Since the ground of
discharge is not disability, he is not entitled for disability pension.
18. As held by the Hon'ble Supreme Court in the case of M/s Shiv
Shankar Dal Mills (supra), Article 226 grants an extraordinary remedy, which
is essentially discretionary. It has also been held that it is perfectly open for the
court, exercising this flexible power, to pass such order as public interest
dictates and equity projects. The Courts of equity may, and frequently do, go
much further both to give and withhold relief in furtherance of the public
interest than they are accustomed to go where only private interests are
involved. The Hon'ble Supreme Court further held that granting or withholding
of relief may properly be dependent upon consideration of public interest.
19. In this case, though I have already held that ground of rejection of
the claim of the petitioner for grant of disability pension is not tenable, but
considering what has been discussed above from paragraph 9 onwards and
considering Rule 153 and the fact admitted that the petitioner was discharged
2025:JHHC:10998
2019:JHHC:39987
for misconduct, considering overall scenario, I hold that the petitioner, as per
Rule is not entitled for the Disability Pension. If this Court had only limited to
the impugned order itself, then the issue in respect of claim of the petitioner
could not have been properly decided. Setting aside the impugned order
cannot automatically make the petitioner entitled to receive the benefit, which
according to Rule 153, he is not entitled to.
20. Thus, on overall consideration, I hold that the grounds for rejecting
the claim of the petitioner are not correct, but considering what has been held
above, which emanates from Rule 153, considering the nature of discharge,
the petitioner is not entitled for Disability Pension.
21. This writ petition is, thus, disposed of. Pending interlocutory
applications, if any, stand disposed of.
(Ananda Sen, J.)
Kumar/Cp-02
AFR
