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The Pension Regulations for the Army, 1961.

Primary conditions for grant of disability pension

173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated -by military service in non- battle casualty and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II. Note for Examines: -Service element of Disability pension is being notified on permanent basis w.e.f. 1/1/73 and even if at some stage the percentage of disability of the pensioners, goes below 20%, his service element notified initially continues to remain in force for life of the pensioner. However in the case of pre 1/1/73 disability pensioners, the service element is contingent upon the continuance of disability element unless and until the pensioner has put in minimum of 10 years of service before 1/3/68 and 5 years of service after that date upto 31/12/72, after which the service element becomes permanent feature as explained above.

Disability at the time of retirement/discharge

179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.

Deputy Director General(Pensions) of office of DGAFMS.

Deputy Financial Adviser (Pensions)."

From a reading of Regulation 173, it is clearly evident that with a view to claiming disability pension, which consists of service element and disability element, invalidation or boarding out of service of the individual on account of disability, which is attributable to or aggravated by military service in non-battle casualty is sine qua non. Additionally, the disability as assessed by the medical authorities must be 20% or above. The question whether disability is attributable to or aggravated by military service is required to be determined under the Rules in Appendix II i.e. 1982 Entitlement Rules. Regulation 173-A would, however, apply to an individual who is placed in lower medical category other than "E" permanently and is discharged because no alternative employment in his trade or category suitable to his medical category could be provided by the army or who is unwilling to accept alternative employment or who having accepted the alternative appointment is discharged before completion of his engagement. Such army personnel shall be deemed to have been invalided from service for the purpose of his entitlement to disability pension in terms 1982, Entitlement Rules. The note appended, however, prescribes that an individual, who is placed in low medical category while on extended WP(C) No.3173/2023 along with connected matters service and is discharged on that account before completion of his period of extension shall also be covered by Regulation 173-A. Now let us revert to the 1982, Entitlement Rules. Rule-4 of 1982 Entitlement Rules is a provision which is akin to Regulation 173 and provides that invalidation from service is a condition precedent for grant of disability pension. It lays down that an individual, who, at the time of his release, is in a lower medical category than in which he was recruited, shall also be deemed to have been invalided out of service. Rule 5 underscores some presumptions in favour of the individual claiming disability pension. It prescribes that a member of the Force shall be presumed to have been in sound physical and mental condition upon entering service and any subsequent deterioration in his health leading to his discharge from service on medical grounds shall be deemed to have taken place due to army service.

Insofar as 2008, Entitlement Rules are concerned, Rule 4 only lays down pre-requisite conditions to be fulfilled for entitlement to disability pension. There is not much of difference between 1961 Regulations and 2008 Regulations in this regard. Invalidation from service for disablement which is attributable to or aggravated by military service is sine qua non for entitlement to disability pension providing however, that disability accepted as such should not be less than 20%. Rule 5 prescribes medical tests to be conducted at the entry stage. Rule 5 makes a departure from 1982 Entitlement Rules and provides that the scope of medical test at the time of entry is not exhaustive but is limited to physical examination and that during physical examination it may not be possible to detect some dormant diseases like hereditary, constitutional and congenital diseases. Such diseases, the rule provides, may manifest later in life, irrespective of service conditions. The Rule clarifies that mere fact that a disease has manifested during military service does not ipso facto establish attributability to or aggravation by military service. Rule 6 stressed upon causal connection between disability or death and military service so as to claim award of disability pension or special family WP(C) No.3173/2023 along with connected matters pension. The causal connection, rule provides, has to be established by appropriate authorities. Rule 7 also make slight change in the matter of onus of proof and lays down that ordinarily the claimant shall not be called upon to prove the conditions of entitlement. However, where the claim is lodged after 15 years of discharge/retirement/ invalidment/release, the onus shall be upon the claimant to prove the entitlement, for the reason that by such time the service documents of the claimant are destroyed. Post-discharge claims are dealt with by Rule 8 and the disease/disability that occurs within seven years of the retirement and is recognized as attributable to military service shall hold the pensioner entitled to disability pension, provided it is established by the competent medical authority that the disease is delayed manifestation of a pathological process set in motion by service conditions obtaining prior to discharge.