IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO.1152 (SS) OF 2004 Ex-4076761 Rect Jagdish Chandra Mishra, S/o Shri Santa Parsad, R/o Village Kot, P.O. Bachchuwan Patti-Khansar, District Chamoli Garhwal. …………Petitioner. Versus 1. Union of India, through its Secretary, Ministry of Defence, North Block, New Delhi. 2. Chief of the Army Staff Sena Bhawan, New Delhi. 3. Controller of Defence Account (Pension), Allahabad. 4. Records Garhwal Rifal, Lansdowne (Uttaranchal), District Pauri Garhwal. 5. Lt. Col. S. Ramchandran Classified Specialist, M.H. Meerut. ………………Respondents. Dated: 22.03.2006 Hon’ble Rajesh Tandon, J. Heard Sri Raman K. Shah, Advocate for the petitioner and Standing Counsel for the Union of India. By the present writ petition, the petitioner has prayed fore a writ of mandamus directing the respondents to consider the grievances of the petitioner for grant of disability pension or to enroll him as Tradesman i.e. cook, barber or in other category. 2 Brief facts giving rise the present writ petition according to the petitioner he was enrolled in the Garhwal Rifle on 21.08.1995 after having duly examined by the Medical Authorities. After qualifying the interview and written test thereafter physical examination the petitioner was medically examined and was found fit to undergo the Military Training, which had to commence from 5th December, 1995. After the enrollment, the petitioner was found unfit due to colour blindness and the medical authorities held the petitioner to be invalid for service and kept him in the category ‘EEE’ and referred him to the Military Hospital Lansdown for holding IMB and further disposal. He was further examined by the medical authorities at Meerut Army Hospital, Roorkee and the medical authorities recommended the petitioner Invalided Medical Board and placed the petitioner in Category ‘EEE’. Reference letter dated 19th October, 1995 is quoted below:- “Transferred back to MH Roorkee for holding medical board. D-Colour Blindness. Fit to travel in entitled class without sick attendant.” The grievance of the petitioner is that he has been discharged from the Army without disability pension and in this regard the petitioner has submitted various representations to the respondents, but the respondent vide letter dated 18th March, 1999 and 17th October, 2003 intimated the petitioner that he is not entitled for the pensionery benefits. Relevant portion of the said letter dated 18th March, 1999 is quoted below:- **vkidks Hkkjr ljdkj j{kk ea=ky; us vius i= la[;k 7 ¼12289@95@j{kk¼isa”ku vihy½ fnukad 08 Qjojh 99 ds ek/;e ls vkidks lwfpr fd;k gS fd mUgksus ,slk dksbZ vk/kkj ugha ik;k fd os j{kk ys[kk fu;a=d ias”ku dk;kZy; bykgkckn 3 ds Qslys dks cny ldsA vr% vki fu;ksZX;rk isa”ku ikus ds vf/kdkjh ugha gSaA** Thereafter, the petitioner submitted an application for the employment in tradesman i.e. cook, tailor, musician, carpentor, mess waiter and barber and in this regard on 1st December, 1995, the Commanding Officer, Garhwal Rifle wrote a letter to the petitioner for employment in Tradesman, but till today no action for employment in other tradesman has been taken by the respondents. A counter affidavit has been filed by the respondents, where it has been stated as under:- “However, it is stated that the claim for grant of disability pension of the petitioner was forwarded to PCDA (P) Allahabad along with his service/Medical documents. PCDA (P) Allahabad examined his case with reference to his medical/service documents and rejected the claims on the following grounds:- a That disability was not attributable to military service. b The disability of the petitioner had existed before his joining military service. c The percentage of disability of the petitioner has been assessed as ‘nil’ by the medical authorities. The decision of the PCDA (P) Allahabad was communicated to the petitioner vide Records Garhwal Rifles letter no. 4076761/10/DP dated 03 Oct 1996……The petitioner was advised to prefer an appeal if he was not satisfied with the decision of PCDA (P) Allahabad. According, the appeal submitted by the petitioner was forwarded to PCDA (P) Allahabad by Records GARHWAL RIFLES alongwith his service/medical document for their further necessary action. The PCDA (P) Allahabad had referred the appeal to Ministry 4 of Defence vide their letter no. G3/68/79/6-96/IX dated 12 Feb 1997. Government of India Ministry of Finance has examined his cse and rejected the same and the factual position was intimated directly to the petitioner stating that he was invalided out from service on account of an invaliding diseases i.e. Colour Blindness, which being a congenital and constitutional disorder. On perusal of his service/Medical document, the appellate medical authorities had also found the invaliding has no relation with his service.” Petitioner has submitted that the departmental appeal is pending and no decision has yet been taken on that. Liberty is given to the petitioner to move a fresh representation before the authority concerned for giving appointment in tradesman within a period of two weeks from the date of presentation of the certified copy of this order. If such a representation is filed, respondent no. 2 shall decide the same within a period of two months considering the case of the petitioner for tradesman and shall also give the percentage of disability of the petitioner in view of the paragraph 6 of the counter affidavit as well as Annexure No. 8 to the writ petition. Appeal pending is also expedited. The respondent is directed to dispose of the appeal within a period of two months from the date of presentation of the certified copy of this order. Writ petition is disposed of. No order as to costs. (Rajesh Tandon, J.) 22.03.2006 Rathour