-1- Civil Writ Petition No.10174 of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: April 01, 2008. Naik Amrik Singh ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Sandeep Bansal, Advocate, for the petitioner. Mr. I.S. Saggu, Advocate, for the respondents. -.- MOHINDER PAL, J. Brief facts of the case are that the petitioner was enrolled in the Army on March 09, 1988 and was transferred to pension establishment on October 31, 2004 under Rule 13 (3) III (iv) of the Army Rules, 1954 (hereinafter referred to as `the -2- Civil Writ Petition No.10174 of 2006. Rules'), at his own request. The petitioner had received Gun Shot Wound in 1996 during enemy action in Kargil Sector during Operation RAKSHAK. Due to this injury, he was placed in Low Medical Category CEE Temporary with effect from December 26, 1996 for six months and subsequently in Permanent Low Medical Category CEE for two years with effect from June 26, 1997. The petitioner continued in service after he was placed in Low Medical Category (Permanent). However, as he found it difficult to carry out his normal duties, he was discharged from Army on compassionate ground on October 31, 2004. As per Release Medical Board Proceedings, disability of the petitioner due to Gun Shot Wound was assessed at 20 % for life. The petitioner was granted service element of pension for the service rendered by him for sixteen years, seven months and twenty three days. However, the respondents denied him the disability pension on the ground that he was discharged from service at his own request. The prayer made in this writ petition is for issuing a direction to the respondents to grant the disability pension to the petitioner from the day he was discharged from service on October 31, 2004. In the written statement filed by the respondents, it has been admitted that the Release Medical Board had assessed the disability of the petitioner at 20 % for life due to Gun Shot Wound suffered by him. It has been pleaded that the -3- Civil Writ Petition No.10174 of 2006. petitioner was placed in permanent low medical category with effect from June 25, 1997 and was provided with sheltered appointment till he retired from Army at his own request on October 31, 2004. Keeping in view his disability, it was very difficult for the petitioner to carry on his normal duties assigned to him and he made a request to the authorities concerned to discharge him from service. The petitioner is not entitled for disability pension as he was discharged at his own request. The application dated January 21, 2004, made by the petitioner for discharge from military service has been annexed with the written statement as Annexure R-1. We have heard Mr. Sandeep Bansal, Advocate, appearing for the petitioner and Mr. I.S. Saggu, Advocate, appearing for the respondents and have gone through the records of the case. 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 -4- Civil Writ Petition No.10174 of 2006. attained discharge on compassionate ground although his disability is attributable to and aggravated by Army service, it will not be a ground to reject his claim of disability pension. Learned counsel for the petitioner has contended that as per the provisions of Regulation 173-A of the Pension Regulations for the Army, 1961 (for short `the Pension Regulations) even those Army personnel who are placed in lower medical category permanently and are unwilling to accept the alternative employment or having retained in alternative appointment, are discharged before completion of their engagement, shall be deemed to have been invalidated from service. However, in the case of the petitioner, after he was placed in Low Medical Category (Permanent), he continued in Military service for more than seven years as he was placed in Low Category (Permanent) on June 26, 1997 and was discharged on October 31, 2004. He contended that the petitioner could not be denied the disability pension on the ground of having sought discharge from Military service after he was unable to perform the duties assigned to him. Pension Regulation 173-A reads as under:- “ 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 -5- Civil Writ Petition No.10174 of 2006. 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 invalidated from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations. 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. Rules 1 and 2 of Appendix II, referred to in Pension Regulation 173-A, are as follows:- “ 1. xx xx xx. Invalidating from service is a necessary condition for grant of disability pension. An individual who at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCOs/ORs, Ncs (E) -6- Civil Writ Petition No.10174 of 2006. who are placed permanently in a medical category other than `A' and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have invalidated out of service. 2. Disablement or death shall be accepted as due to military service provided it is certified that - (a) the disablement is due to wound, injury or disease which - (i)is attributable to military service; (ii)existed before or arose during military service and has been and remains aggravated thereby; (b) the death was due to or hastened by - (i)a wound, injury or disease which was attributable to military service; or (ii)the aggravation by -7- Civil Writ Petition No.10174 of 2006. military service of a wound, injury or disease which existed before or arose during military service.” A reference to the provisions contained in Pension Regulation 173 is also necessary, which are as under:- “ Primary conditions for the 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 invalidated from service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or above. The question whether a disability is attributable to or aggravated by military service shall be determined under the Rule in Appendix-II. A perusal of the provisions of Pension Regulation 173 and Rules 1 and 2 of Appendix II makes it clear that `invalidated from service' is necessary condition for grant of -8- Civil Writ Petition No.10174 of 2006. disability pension. What has to be seen for entitlement of disability pension is whether an individual at the time of his release was in a low medical category than that in which he was recruited; if it is so, then such person will be treated as `invalidated from service'. It is admitted case of the parties that due to the Gun Shot Wound suffered by the petitioner in 1996 during enemy action in Kargil Sector during operation RAKSHAK, he was placed in Low Medical Category CEE Temporary with effect from December 26, 1986 for six months and thereafter in Permanent Low Medical Category CEE for two years with effect from June 26, 1997. The Release Medical Board assessed the disability of the petitioner at 20 % due to Gun Shot Wound. The petitioner requested for discharge from service as due to aggravation of the injury he felt difficulty in carrying out his normal duties. Once the petitioner is in Low Medical Category (Permanent) because of the Gun Shot Wound, which is attributable to and aggravated by military service, according to Rules 1 and 2 of Appendix II of Pension Regulation 173, he shall be treated as `invalidated from service'. Once the petitioner is held to have been invalidated from service, he is entitled to disability pension. As argued by the learned counsel for the petitioner, his case is also covered under the provisions of Pension Regulation 173-A, quoted above, which specifically provides that individuals who are placed in a lower medical category permanently, as is the petitioner, and discharged because no alternative employment suitable to their low medical -9- Civil Writ Petition No.10174 of 2006. category could be provided or who are unwilling to accept the alternative employment, shall be deemed to have been invalidated from service. For the aforesaid reasons, we allow this writ petition and direct the respondents to grant disability pension to the petitioner on the basis of assessment of 20% disability for life as opined by the Release Medical Board in October 2004 upto date. However, the petitioner having been invalidated out from Army in October 2004, in view of the letter dated February 03, 2000 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners' Welfare, New Delhi, whereby in case of percentage of disability assessed at less than 50 %, the percentage for computation of disability pension is to be reckoned as 50 %, the petitioner is held entitled to disability pension at the rate of 50 %. The respondents shall pay all the arrears to the petitioner within two months from the date of receipt of a copy of this order, failing which the petitioner will be entitled to interest at the rate of nine per cent annum. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE April 01, 2008. ak