CW– 2294/96 -NEEM SINGH VS.THE CONTROLLER OF DEFENCE ACCOUNTS (P)&Ors . JUDGMENT DT.18.3.09 1/5 S.B. CIVIL WRIT PETITION NO.2294/1996 NEEM SINGH VS. THE CONTROLLER OF DEFENCE ACCOUNTS (P) & ORS. Date of Order : 18th March, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.S. Shekhawat for Dr. P.S. Bhati for the petitioner. Mr. V.K. Mathur with Mr. Vinit Pandya for the respondents. --------- 1. Heard learned counsels. 2. By this writ petition, the petitioner has prayed that his services as Lance Naik with service No.6806046 in unit No.94 D.S.C. Regiment Platoon as Sepoy for 13 years and 2 days was only a year short of full qualifying service for the purpose of full pensionary benefits and, therefore, his case deserved to be sympathetically considered by the respondents and he should be given full pensionary benefits. The second claim of the writ-petitioner in the present case is that the Medical Board had found 20% disability on account of obesity and had discharged him from service and, therefore, disability pension should be given to him. 3. Learned counsel for the petitioner pray that both these requests were turned down by the respondents and, therefore, this writ petition has been filed in this Court. 4. The contentions raised above on behalf of the petitioner CW– 2294/96 -NEEM SINGH VS.THE CONTROLLER OF DEFENCE ACCOUNTS (P)&Ors . JUDGMENT DT.18.3.09 2/5 are controverted by the learned counsel appearing for the respondents on the ground that firstly the question of disability benefit to the petitioner does not arise because the disease in question namely obesity was a constitutional disease and was neither attributable to military service nor the same was aggravated by his military service and, therefore, he was not entitled to the said disability benefit. Secondly the learned counsel for the respondent urged that Rule 132 requires minimum 15 years of qualifying service for the purpose of grant of full pensionary benefits. Since admittedly the petitioner had not completed 15 years of qualifying service but had completed only 13 years and 2 days of service, such full pensionary benefits could not be given to him. He, therefore, justified the impugned order Annex.3 dated 16th December, 1994 and Annex.4 dated 19th December, 1994 and submitted that the present writ petition deserves to be dismissed. 5. He relied upon the following submissions made in his reply to the writ petition: “(ii) The petitioner was re-enrolled in Defence Security Corps on 30th March, 1978 and allowed to retain the same Army Number. His former service pension was suspended for the period from 30th March, 1978 to 24th Jan., 1983 as per provisions contained in Rule 267 (d) of Pension Regulations for the Army Part I (1961). With a view to improve the terms and conditions of service of CW– 2294/96 -NEEM SINGH VS.THE CONTROLLER OF DEFENCE ACCOUNTS (P)&Ors . JUDGMENT DT.18.3.09 3/5 Defence Security Corps Personnel, Government of India, Ministry of Defence, New Delhi issued orders vide letter dated 3rd March, 1983 with the decision that the retired Military personnel re- enrolled in the Defence Security Corps will be given the option either :- (a) to continue to draw Military pension and retain DCRG, or retain service Gratuity and DCRG on discharge from Military service in which case his former Military service shall not count as qualified service; OR (b) to cease to draw his pension or refund the service gratuity including DCRG, if any, and count the previous Military service as qualifying service. The petitioner had elected to continue to draw pension and retain Death-cum-Retirement Gratuity and not to count former service enhanced rate of pension and gratuity with service in Defence Security Corps. Based on his above option, his former service pension was resumed with effect from 25th Jan., 1983 and paid in addition to pay and allowances of his re-enrolled assignment. The petitioner was discharged from Defence Security Corps service on 31st March, 1991 (AN) under Rule 13(3) item III (i) of the Army Rules, 1954 on completion of terms of engagement. The petitioner had rendered 13 years and 2 days qualifying service with Defence Security Corps, for which he was paid a sum of Rs.12350/- on account of Service Gratuity and CW– 2294/96 -NEEM SINGH VS.THE CONTROLLER OF DEFENCE ACCOUNTS (P)&Ors . JUDGMENT DT.18.3.09 4/5 Rs.8550/- on account of Death-cum-Retirement Gratuity at the time of his discharge from Defence Security Corps. (iii) Being in law medical category, the petitioner was brought before Release Medical Board on 2nd Jan., 1991 at Military Hospital, Khadakwasla. The Medical Board recommended him to be released in medical category BEE (permanent) with 20% disability life long due to disease “OBESITY (277)”. The Medical Board consisting of expert Doctors has opined that “it is a constitutional and habitual disease” and, therefore, not connected with Military service, which was approved by competent authority on 29th Jan., 1991. (iv) .... (v) ..... (vi) As per Rule 132 of the Pension Regulations for the Army, Part I (1961), the minimum period of qualifying service (without weightage actually rendered and required for earning service pension shall be 15 years. As the petitioner had earned only 13 years and 02 days qualifying service with Defence Security Corps, he was/ is not entitled to get second spell of Service Pension within the frame work of rules on the subject.” 6. In view of the aforesaid and after hearing both the learned counsels, this Court is satisfied that the petitioner is not entitled to any further relief than the one already granted to him by the respondents as he has neither fulfilled the qualifying service of 15 CW– 2294/96 -NEEM SINGH VS.THE CONTROLLER OF DEFENCE ACCOUNTS (P)&Ors . JUDGMENT DT.18.3.09 5/5 years so as to entitle him the full pensionary benefits nor the disability pension as the 'obesity' cannot be said to be attributable or aggravated by his military service. 7. Consequently, this writ petition is found to be devoid of merit. The same is accordingly dismissed. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.5 babulal/-