IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1295 of 2001 DHANESHWAR PD. SAH Versus THE UNION OF INDIA & ORS ----------- 6 17.03.2010 Heard Mr. Sharda Nand Mishra learned counsel appearing on behalf of the petitioner and Mr. V.K. Pandey, learned counsel for the Union of India and its authorities. The petitioner is aggrieved by the order dated 14.1.2000 (Annexure-3) whereby his claim for payment of disability pension under the Pension Regulation of the Army, 1961 has been rejected. The petitioner thus seeks a direction to the authority for grant of disability pension with effect from 10.2.1998 i.e. the date on which he was made to superannuate from service. Learned counsel for the petitioner submits that the very fact that the petitioner was discharged from service by reason of a medical problem, he was fully entitled for consideration of his case for disability pension. Learned counsel for the petitioner relies upon a Bench decision of this Court appended at Annexure-5, in support of his submissions. 2 A counter affidavit has been filed by the Union of India and in paragraph 5 it is stated that the petitioner was discharged from service with effect from 28.2.1999 under the provisions of Rule 13(3)(III)(i) of the Army Rules 1954. The relevant provision aforesaid provides that on fulfillment of conditions of enrolment or upon having reached the stage at which a discharge may be enforced, an armyman can be discharged under the orders of the Commanding Officer in the case of a rank of Hawaldar or of equivalent rank and in case where Commanding Officer is below the rank of Lieutenant Colonel, the Brigade or Sub Area Commander. Learned counsel appearing for the Union of India contends that the petitioner was enrolled in Army on 4.2.1975 and after completion of 24 years and 25 days of qualifying service he was discharged from service with effect from 28.2.1999 under the provisions of the Army Rule 13(3)(III)(i) upon completion of terms and conditions of enrolment. He was also granted the Honorary Rank of Naib Subedar after retirement and 3 accordingly, he was granted pensionary benefits for his service vide Chief Controller of Defence Accounts (Pension) Allahabad vide pension payment order dated 1.3.1999 and in furtherance whereof the petitioner was already drawing pension at the rate of Rs. 1307/- per month + D.A. as admissible from time to time and also paid the admissible amount of death cum retirement gratuity, commutation of pension, army group insurance benefit and credit balance etc. It is contended that the reasons of his discharge on completion of qualifying service was due to (i) Low Backache (ii)Simple obesity (iii) Mild hypertension. It is stated that the medical authorities recommended 20 % disability for a period of 2 years. The Medical authority opined that the same was not attributable to the military service nor was aggravated by reason thereof rather were constitutional in nature. In the said circumstances it was submitted that there was no merit in the issue raised. Learned counsel for the Union of India in support of his contention relies upon a judgment of the Supreme Court reported in 2008 (5) SCC 747 (Union of India versus Surendra Singh Rathore). 4 The Supreme Court was considered the case of a discharged army employee suffering from Maculopathy (RT) eye resulting in diminished vision. The Medical Board had opined that the disability was not attributable to army service nor had the same been aggravated thereby and hence the said armyman was not found entitled for disability pension. The Supreme Court after taking into consideration the earlier judgments rendered on the issue in the light of the statutory provisions was pleased to allow the appeal of the Union of India. The case of the present petitioner is on worse footing for the reason that the three diseases that has been set out by the Medical Board are completely constitutional in nature and can certainly not be attributed to the military service or said to be aggravated thereby. For the reason aforesaid, I find no merit in the writ petition, it is dismissed. Bibhash (Jyoti Saran, J. )