IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 1523 of 2008 DATE OF DECISION : APRIL 21, 2009 Ex.HAV. GURJIT SINGH No.3388009W ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. DS Chanan, Advocate, for the petitioner(s). Ms. Geeta Singhwal, Advocate, for respondents. AJAI LAMBA, J. (Oral) This petition under Articles 226/227 of the Constitution of India prays for issuance of a writ in the nature of certiorari for quashing order dated 9.10.2007 (Annexure P-5). The claim of the petitioner is for Civil Writ Petition No. 1523 of 2008 2 disability pension with effect from 28.2.2007 when the petitioner was released/discharged after completion of 19 years 9 months and 22 days i.e. after completion of his period of engagement. It has been brought out that the petitioner was enrolled in the Indian Army on 6.5.1987. His term of engagement was 19 years. The petitioner was discharged, as noticed above. During service, the petitioner was deployed in Sri Lanka, difficult terrain of Sikkim and Jammu and Kashmir, high altitude and other sensitive areas. The petitioner suffered from Primary Hypertension in May, 2005, and his health started deteriorating. The petitioner, under the circumstances, was constrained to seek retirement on completion of the term of engagement of 19 years. At the time of release of the petitioner, the Medical Board found the degree of disability on account of Primary Hypertension to be 30% and a firm opinion has been given by the Medical Board that it was due to prolonged stress and strain of difficult terrain and operational area, as is evident from Annexure P-2. The petitioner applied for disability pension to which he received no response and, therefore, a legal notice dated 25.9.2007 was served. Respondent No.3 i.e. Officer Incharge Records, Sikh Regiment, vide order dated 9.10.2007 (Annexure P-5) rejected the claim of the petitioner on the following grounds:- “2. You have been discharged from service at your own request on compassionate grounds before fulfilling the conditions of your enrolment under AR 13(3) Item III (iv). As per your Release Medical Board, you were having the disability “PRIMARY HYPERTENSION (I-10.0, Z-09)” at the time of your discharge from service. 3. In accordance with the provision of Government of Civil Writ Petition No. 1523 of 2008 3 India, Ministry of Defence letter No.1(2)/97/D/(Pen-C) dated 31 Jan 01, Integrated Heqadquarters of MoD (Army) letter No. B/40103/AG/PS-4 (d) dated 17 Mar 98 & B/40122/MA (P)/AG/PS-5 dated 20 Jul 06. Army Personnel who seek premature retirement at their own request are not entitled for any award on account of their disability in accordance with Para 173 of Pension Regulation for the Army Part-1, 1961. The above facts were also communicated to you vide our letter No.3388009/ Pen/ DP dated 16 Apr 07. Hence, your Legal Notice lacks merits and substance.” Learned counsel for the petitioner contends that the petitioner sought premature retirement, however, it is dehors the fact that the petitioner became a victim of Primary Hypertension for life on account of military service. Learned counsel for the petitioner has pointed out that the case of the petitioner is covered by judgment rendered by a Division Bench of the Delhi High Court in Civil Writ No.2967 of 1989 decided on 5.5.2004 (Mahavir Singh Narwal v. Union of India and another), wherein it was held as under:- “The arguments advanced by the learned counsel for the respondents that these letters were not issued by the competent authority is not of any relevance for grant of disability pension. What is relevant is whether the mandate of Pension Regulation 173 read with Rules 1 and 2 of Appendix II has been taken into consideration or not. Civil Writ Petition No. 1523 of 2008 4 Merely because a person has attained discharge on compassionate ground although his disability has been acquired on account of stress and strain of military service will not be a ground to reject the claim of disability pension, it has been invalidated act in terms of Appendix II of Rule 173. We allow the writ petition and direct the respondent to grant disability pension to the petitioner on the basis of assessment of 30% disability as opined by the Release Medical Board in the year 1979 upto date . For future disability pension the respondent may conduct another medical board to assess the percentage of disability of the petitioner. Arrears of disability pension be paid to the petitioner within a period of 8 weeks. If the same are not paid within 8 weeks the petitioner shall be entitled to the interest at the rate of 9% on the amount of arrears. With these directions the writ petition is allowed.” An appeal was carried to the Hon'ble Supreme Court of India which, however, was dismissed, as is evident from order (Annexure P-7). Similar view has been taken by this Court in CWP No.5551 Civil Writ Petition No. 1523 of 2008 5 of 2006 decided on28.8.2008 (JC 211972 Ex-Subedar Raj Kumar Dhingra v. Union of India and others), wherein it has been held as under:- “........ A reading of Regulation 179 of the Pension Regulations, 1961 reproduced at Annexure P-8, discloses that an individual discharged on completion of term of engagement, if found suffering from a disability attributable to or aggravated by military service and recorded as such by Army Medical Authorities, shall be deemed to have been invalidated out of service and shall be entitled to grant of disability pension from the date of retirement, if the accepted degree of disability is 20% or more. The “Note” appended to Regulation 179 is reproduced as under:- “NOTE: In the case of an individual discharged on fulfilling the terms of his retirement his unwillingness to continue in service beyond the period of his engagement should not affect his title to the disability element under the provision of the above regulation.” A reading of the “Note” reproduced above of the provisions of Regulation 179 Civil Writ Petition No. 1523 of 2008 6 coupled with the admitted fact that the petitioner had completed his term of engagement, there can be no doubt that the petitioner is entitled to the grant of disability pension. In Madan Singh's case (supra) it was held by a Division Bench of the Delhi High Court that disability pension could not be denied to the discharged army personnel simply on the ground that the said discharge was based on the request of extreme compassionate ground. The said view as taken keeping in view another Division Bench judgment of the Delhi High Court rendered in Mahavir Singh Narwal v. Union of India and another, CW No.2967/1999, decided on 6.5.2004, against which SLP © No.13671 of 2005 titled Union of India and another v. Mahavir Singh Narwal (Dead) By LRs., was dismissed by the Hon'ble Supreme Court vide order dated 4.1.2008.” Learned counsel for the respondents has not been able to dispute that the case is covered by the cited judgments viz. Mahavir Singh Narwal's case (supra) and Ex-Subedar Raj Kumar Dhingra's case (supra). The respondents have not disputed the disability of the Civil Writ Petition No. 1523 of 2008 7 petitioner on account of Primary Hypertension, which was suffered by the petitioner during the period he served the Indian Army. The medical problem is attributable to military service and is on account of the fact that the petitioner had to serve in high altitude areas and was aggravated on account of continuous deployment in difficult terrain and prolonged stress and strain. The disability on account of service having been admitted, it is wholly unreasonable and arbitrary on the part of the respondents to deny disability pension to the petitioner on the ground that the petitioner sought premature retirement. The view is supported by the judgments, to which reference has been made hereinabove. In view of the above, this petition is allowed. Order dated 9.10.2007 (Annexure P-5) is hereby quashed. It is held that the petitioner is entitled to payment of disability pension for disability assessed by the Medical Board at 30%. The arrears would be paid to the petitioner within 4 months of supply of a certified copy of this order. April 21, 2009 ( AJAI LAMBA ) Kang JUDGE