CR No.6790 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6790 of 2009 (O&M) Date of Decision: 8.01.2010 Jagmal ....Petitioner Vs. Government of India & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.J.P.Sharma, Advocate, for the petitioner. Ms.Anjali Kukar, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 19.8.2006 passed by the learned Executing Court, as affirmed by the learned appellate court vide order dated 22.7.2009, vide which the execution application moved by the petitioner stands dismissed. The petitioner was enrolled in Indian Army in Rajasthan Rifles on 6.6.1946 and was discharged from service on 5.6.1961. Reason for CR No.6790 of 2009 2 discharge was 40 per cent disability on account of nature of duties entrusted to him while serving in the Army. The petitioner was not allowed the benefit of disability pension. The petitioner challenged the orders dated 17.9.1983/22.9.983 and 20.10.1985 rejecting his claim for grant of disability pension in the civil court. The civil suit filed by him was decreed on 9.12.1992. The decree passed in favour of the petitioner reads as under:- “ It is ordered that suit of the plaintiff succeeds and it is decreed with the declaration to the effect that order of defendants dated 17/9/1983, 22/9/1983 and 22.10.1985 are illegal, void and not binding upon the right of the plaintiff and the same are hereby set aside. It is also declared that plaintiff is entitled for all the disability pensionary benefits becoming due to him on account of his military service w.e.f. 24.10.1984 which is to be assessed by the competent authority as per rules of the army pension act, however, parties are left to bear their own costs.” The petitioner, thereafter sought execution of decree, which was dismissed as certain amount was paid. Thereafter the petitioner filed another execution application which was dismissed by the learned executing court by way of impugned order which reads as under:- “ Warrant of attachment were issued as per list of calculation filed on behalf of decree holder. However, from perusal of case file, it has come into my notice suit was decreed vide order dated 9.12.1992 with the observation that decree CR No.6790 of 2009 3 holder is entitled to all the disability pensionary benefits becoming due to him on account of his military service w.e.f. 4.10.1984 which is to be assessed by the competent authority as per rule of the army pension Act. JD had also appeared before the court and filed objections on 6.12.2003 with the averments that disability element of pension is not a regular pension, however, it is a causality ward/compensation for any disability caused during the performance of duties in military service and not otherwise. According to rule Chief Controller of Defence Accounts (Pension) Allahabad is the competent pension sanctioning authority of disability element of pension for 20% for disability to the plaintiff for the period from 24 October 1984 to 23 October 1986. However, in terms of Rule 173 of Pension Regulations Part I (1961) and Army order 417/74 which governs the procedure for grant of disability pension in the Army. In terms regulations 2 (ii) of Pension Regulation for the Army Part II (1961), the provision one has to undergo resurvey medical board about four months prior to the date of expiry of the current award of disability pension. Since, decree holder refused for undergoing resurvey medical board, payment of disability element of pension was stopped w.e.f. 24 October 1986 in the absence of fresh resurvey medical board as the instructions contained in regulations 56 of pension. Regulation Part I. JD department has duly complied with the decree dated CR No.6790 of 2009 4 9.12.1992 by paying all disability pensionary benefits and nothing left pending be paid against department. It is matter of fact that earlier also decree holder had filed execution petition in the year 1993. But this fact has not been disclosed in this the year 1993 But this fact has not been disclosed in this execution petition. Moreso, he again filed execution petition dated 15 January 2001 against JDs which is still pending. However, decree holder has now again filed this execution petition despite duly complied with the JDs department. This act and conduct on behalf of decree holder is apparently abused of process of law because of the reason that JD has to release disability pension as per rules in compliance of decree dated 9.12.1992. It is not understandable as to why DH again filed the present execution petition on the basis of decree dated 9.12.1992. This act does not show that as to how DH is misusing the abuse of law. Since JDs department has duly complied with decree as per rule. Therefore, I find no justification to proceed further with the present execution petition. Resultantly, execution petition stands dismissed being duly complied with the JDs department. File after due compliance be consigned to the record room.” The petitioner preferred an appeal. Appeal was also dismissed. Learned counsel for the petitioner has challenged the impugned order primarily on the ground that the judgment and decree was passed by CR No.6790 of 2009 5 the learned Civil Judge on 9.12.1992. No objection, that the petitioner was liable to undergo resurvey medical board was taken in the suit and in the decree it is specifically mentioned that the petitioner was entitled to disability pension w.e.f. 24.10.1984 without mentioning the date as to when this would cease to be operative. There was no justification with the judgment debtor to the pension w.e.f. 24.10.1986, for want of resurvey medical board specifically when he was not asked to undergo the resurvey medical board after passing of the decree. Learned counsel for the petitioner placed reliance on the judgment of this court in the case of Gurnam Singh Vs. Union of India &Ors. 1995 (4) RSJ 1 to contend that the disability pension granted to the petitioner could not be stopped as it was to continue during his life time. This court in the case of Gurnam Singh Vs. Union of India &Ors. (supra) was pleased to lay down as under:- “4. From the documents which have been placed on record, it is clear that the petitioner was discharged from the military service on the ground of low medical category. He was given medical category 'EEE' at the time of discharge from the service Annexure P-2 is conclusive proof of the fact that the petitioner was given disability pension. This disability pension must have been given to the petitioner on fulfilment of the conditions envisaged in regulation 73 of the Pension regulations. By virtue of order (Annexure P-5), the Government of India took a policy decision to extend the benefit of the disability pension to the CR No.6790 of 2009 6 Army personnel below the office rank who were granted disability pension at one time but whose disability fell below 20 percent at a later stage. Annexure P-6 contains similar instructions regarding the grant of disability pension of those whose disability falls below 20 percent. However, the instructions contained in Annexure P-6 have been made applicable only to those who were on the effective strength of the Army on 1.1.1973. If the petitioner has been discharged from the service after 1.1.1973, he would have become entitled to the grant of disability pension notwithstanding the fact that his disability was subsequently reduced below 20 per cent. Therefore, now it has to be seen whether the restricted application of the instructions contained in Annexure P-6 has got any rationality. There can be no manner of doubt that the petitioner was in receipt of the disability pension as on 1.1.1973 and he continued to draw the disability pension upto 20.8.1974. Some of the army personnel who were discharged from service after 1.1.1973 and who were given disability pension after 1.1.1973 were placed at par with the petitioner. With reference to the object of giving the benefit of disability pension of those whose disability fell below 20 percent, the petitioner and others who were discharged after 1.1.1973 constituted one class. With reference to the object of aforementioned, there could be no rational of confiding the benefit of the disability pension only CR No.6790 of 2009 7 to those who were discharge after 1.1.1973. The entire object of extending the benefit of the disability pension even after the reduction of the degree of disability will be frustrated in the cases of the persons like the petitioner, who was actually in receipt of the disability pension on 1.1.1973 but whose disability fell below 20 per cent after 1.1.1973 are denied benefit of disability pension. To me fixation of the date as 1.1.1973 has absolutely no nexus with the object of granting the disability pension to those who were initially having the disability of 20 per cent or more but whose degree of disability reduced at a later point of time. To this extent the provisions contained in Annexure P-6 are liable to be declared as unconstitutional. 5. In the result, the writ petition is allowed. The following expression in the order Annexure P.6 is declared ultra vires to Article 14 of the Constitution:- “These orders will take effect from Ist January, 1973 i.e. these will apply to all those who were on the effective strength of the Army on that date and who became non- effective thereafter.” 5. The respondents are directed to give benefit of the disability pension to the petition as has been given to those who have been discharged from the service after 1.1.1973. However, the benefit of arrears of pension shall not be CR No.6790 of 2009 8 admissible to the petitioner. He shall get the benefit of the disability pension from the date of filing of the writ petition i.e. 20.9.1993. The respondents are directed to take effect (ive) steps for grant of monetary benefits to the petitioner in terms of this order within a period of four months of the submission of a certified copy of the order. Parties are left to bear their own costs.” Ms.Anjali Kukar, learned counsel appearing on behalf of Union of India, on the other hand, contented that the reading of the judgment and decree would show that the petitioner was granted disability pension w.e.f. 24.10.1984 as per Rules of Army Pension Act, therefore, it was necessary for the petitioner to undergo resurvey medical board in order to claim the disability pension as his disability was to be reassessed w.e.f. 24.10.1986 i.e. after 2 years in terms of Regulation 2 (ii) of the Pension regulation act but the petitioner refused to undergo resurvey medical board, therefore, he was not entitled. However, on consideration of matter, I find force in the contentions raised by the learned counsel for the petitioner. The plea that the petitioner refused to undergo resurvey medical board on the face of it cannot be accepted, as it cannot be believed that the petitioner was asked to undergo resurvey medical board 4 months prior to the expiry of disability pension as none was granted to him in the year 1984, the judgment and decree by the civil court was passed only in the year 1992. No material was placed on record before the learned executing court CR No.6790 of 2009 9 showing refusal by the petitioner or request by the Army Authority for resurvey medical board. In view of the judgment in the case of Gurnam Singh Vs. Union of India &Ors. (supra) it is required to be determined as to whether the petitioner can be asked to go for resurvey medical board, so as to enable him to seek continuation of disability pension in pursuance to the decree passed in his favour granting disability pension to him w.e.f. 24.10.1982. Learned courts below have proceeded on presumptions that resurvey medical was required. The impugned orders, therefore, cannot be sustained, specially in the absence of any material showing that the petitioner was asked to undergo medical resurvey. The learned executing court is also required to look into as to whether petitioner can be asked to undergo resurvey medical in view of the judgment of this court in the case of Gurnam Singh Vs. Union of India &Ors. (supra). In the absence of any order, the petitioner is to keep getting disability pension under the decree. Consequently, this revision is allowed. The impugned orders are set aside, and the case is remanded back to the learned executed court to consider the execution application in accordance with law on merit. No costs. 08.01.2010 (Vinod K.Sharma) rp ` Judge