IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 15227 of 2007 DATE OF DECISION : MAY 11, 2009 JAGGAR SINGH ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Ajit Sihag, Advocate, for the petitioner(s). Ms. Geeta Singhwal, Advocate. Mr. Ram Chander, Advocate. AJAI LAMBA, J. This petition under Articles 226/227 of the Constitution of India prays for issuance of a writ in the nature of certiorari quashing order dated 18.11.2002 (Annexure P-13) and order dated 16.3.2007 (Annexure P- 24). Under the impugned orders, the claim of the petitioner for grant of disability pension has been denied, essentially on the ground that the petitioner had been discharged from service, being inefficient soldier, under the provisions of Rule 13(3), Item III (v) of the Army Rules, 1954. Civil Writ Petition No. 15227 of 2007 2 All the relevant facts have not been given in the written statement, therefore, Shri Ram Chander, Advocate, appearing for Union of India, has supplied a document dated 15.4.2008, which is under signatures of Lt. Col. Navrattan Singh, Chief Record Officer for OIC Records, which reflects the complete sequence of facts. This document is taken on record as Annexure 'A'. The uncontroverted facts are that the petitioner was enrolled in the Army on 28.3.1988. While the petitioner was serving 19 RR (SIKH LI) in Counter Insurgency Operation (Jammu and Kashmir), he sustained an injury due to an Improvised Explosive Device Blast (IED) on 11.10.1995. The blast resulted in an injury viz. Compound Fracture Lower Shaft Tibia Fibula (Left), and was regarded as battle casualty, having been sustained in Counter Insurgency Operation in Jammu and Kashmir. The petitioner initially was placed in low medical category CEE (Temporary) with effect from 16.2.1996 at Command Hospital, Chandimandir by a Medical Board. On review of his medical condition, the petitioner was placed in low medical category BEE (Permanent) with effect from 16.2.1997 by a Medical Board held at Military Hospital, Fatehgarh, and he remained in that category with effect from 10.2.1999 on subsequent review at Military Hospital, Jalandhar Cantt. It seems that the petitioner was locally discharged from service on 11.8.2000 under Rule 13(3), Item III (v) of the Army Rules on the ground “service no longer required as an inefficient soldier”. The details of misconduct of the petitioner have been given, indicating the fact Civil Writ Petition No. 15227 of 2007 3 that the petitioner incurred 9 red ink entries and 3 black entries. The petitioner was served with a show cause notice dated 27.4.2000. The petitioner responded to the same, however, the Commander, 350 Infantry Brigade sanctioned the discharge of the petitioner on disciplinary grounds, the petitioner having been found to be undesirable as he had established a bad example to the organisation. It seems that the case of the petitioner was not even considered for the purpose of grant of disability pension in view of the fact that Rule 13(3), Item III (v) of the Army Rules, for discharging him, had been invoked. The case was forwarded to the PCDA (P), Allahabad, which authority returned the same unactioned for want of Battle Casualty Part II Order. The disability pension claim was resubmitted, duly rectified, to the PCDA (P), Allahabad, vide letter dated 6.8.2002. The same, however, was rejected vide order dated 8.10.2002, stating that the petitioner had been discharged from service being inefficient soldier. Rules 173 and 173-A of the Pension Rules for the Army, 1961 (Part-I) provided as under:- “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 Civil Writ Petition No. 15227 of 2007 4 rule in Appendix II. 173-A. Individuals who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Rules. Note: The above provision shall also apply to individuals who are placed in a low medical category while on extended service and are discharged on that account before the completion of the period of their extension.” Para-3 of the impugned order dated 16.3.2007 (Annexure P- 24) admits that the petitioner was graded to low medical category due to the injury suffered on 16.2.1997, as detailed above, during Operation RAKSHAK with effect from 16.2.1997. In para-6 of the impugned order, it has been stated by the respondents that under letter dated 20.7.2006, issued by the Ministry of Defence, “PBOR who are discharged prematurely at their own request or on administrative ground after earning 4 or more red ink entries are not entitled for grant of disability pension and, therefore, claims of such personnel should not be processed at all, even if they may otherwise be fulfilling the other eligibility conditions”. Civil Writ Petition No. 15227 of 2007 5 The contention of the learned counsel for the petitioner is that the petitioner, while serving the nation, received the injury, which was termed as “Battle Casualty”. The discharge of the petitioner on administrative ground cannot possibly dis-entitle the petitioner from payment of disability pension. Learned counsel for the respondent-State has referred to Annexure R-1 i.e. Appendix 'C' to Integrated HQ of Ministry of Defence (Army) letter dated 20.7.2006, which provides as under:- “2. The following categories of ex-Army personnel are not eligible for grant of disability pension and, therefore, claims in respect of such personnel should not be processed at all, even if they may otherwise be fulfilling the twin eligibility conditions for the same as brought out in the foregoing paragraphs :- (a) xx xx xx xx (b) xx xx xx xx (c) PBOR who are discharged prematurely at their own request or on administrative ground after earning 4 or more red ink entries.” A conjoint reading of Rules 173 and 173-A of the Rules and the provisions of Ministry of Defence letter dated 20.7.2006, indicates that while the Rules provide for grant of disability pension to an individual who is invalided out of service on account of disability, which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20% or over, the provisions of the letter provide for the Civil Writ Petition No. 15227 of 2007 6 categories of ex-Army personnel who are not entitled to the grant of disability pension. The categories narrated in letter dated 20.7.2006 include PBOR who are discharged prematurely at their own request or on administrative ground after earning 4 or more red ink entries. This Court has considered the issue of entitlement of disability pension of a person who is discharged at his own request viz. the first component of sub-para (a) of Para-2, reproduced above. In this regard, reference may be made to a Division Bench judgment of this Court in Naik Amrik Singh v. Union of India and others, CWP 10174 of 2006 decided on 1.4.2008. The relevant portion of the judgment reads as under:- “Admittedly, the disability suffered by the petitioner is attributable to and aggravated by military service. The question involved is - whether on account of seeking discharge on compassionate ground, the petitioner has lost his right to claim disability pension although the disability is attributable and aggravated on account of military service. Had the petitioner been invalidated out of military service on account of 20 % disability for life due to Gun Shot Wound suffered by him during enemy action in Kargil Sector during Operation RAKSHAK, he would have been granted the disability pension along with service element of pension. Merely because the petitioner has attained discharge on compassionate ground although his disability is attributable to and aggravated by Army service, it will not be a ground to Civil Writ Petition No. 15227 of 2007 7 reject his claim of disability pension. xx xx xx xx xx xx xx xx xx xx For the aforesaid reasons, we allow this writ petition and direct the respondents to grant disability pension ......” Similar is the effect of a Division Bench judgment of the Delhi High Court in Mahavir Singh Narwal v. Union of India and another, CW No.2967 of 1989 decided on 5.5.2004, which has been affirmed by the Hon'ble Supreme Court of India in Special Leave to Appeal (Civil) No.24171 of 2004 (Union of India and another v. Mahavir Singh Narwal (Dead) by LRs.). The gist and spirit of the law laid down by this Court and the Delhi High Court is that the purpose of giving disability pension is disability suffered by a person which is attributable to military service or aggravated by military service. An individual, under the Rules extracted above, is entitled to disability pension on acquiring disability in the process of his serving the Army. Any differentiation, such as the one suggested by the respondents, would clearly be unreasonable, injudicious, illogical and arbitrary. In the case in hand, it is the admitted case that the petitioner was serving the Indian Army in Operation RAKSHAK. While on duty, an IED Blast occurred, which caused fracture on the left lower limb of the petitioner, resulting in disability. It is a clear case which would fall within the four corners of disability which is attributable to military service. The case of the petitioner, rather, is that of a Battle Casualty. The petitioner Civil Writ Petition No. 15227 of 2007 8 became disabled in line of duty while serving the nation and, therefore, at the time of discharge, for whatever reasons, the petitioner was a disabled man. It is not the case of the respondents that the petitioner suffered disability because he had indulged in some illegal act that was contrary to the Army Rules and Regulations. Considering the peculiar facts and circumstances of the case and as it is the admitted case of the respondents that the petitioner had suffered the disability which is directly attributable to military service, in my considered opinion, the claim of the petitioner for disability pension cannot be denied because he was discharged on invoking the provisions of Rule 13(3), Item III (v) of the Army Rules, 1954. The discharge of the petitioner on administrative ground is dehors the claim of the petitioner for disability pension, he having been disabled while serving the nation. In view of the above, this petition is allowed. The respondents are directed to consider the case of the petitioner for grant of disability pension within 4 months of receipt of a certified copy of the order. May 11, 2009 ( AJAI LAMBA ) Kang JUDGE