LPA No. 1529 of 2011(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1529 of 2011(O&M) Date of Decision: 25.11.2011 Union of India and others ........Appellants vs. Gurcharan Singh .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G. S. SANDHAWALIA Present: Shri Karminder Singh, Advocate for the appellants G. S. SANDHAWALIA , J. C.M. No. 4178 of 2011 For the reasons mentioned in the application, delay of 468 days in filing the appeal is condoned subject to all just exceptions. C.M. is allowed. LPA No. 1529 of 2011 The appellants are aggrieved against the order of learned Single Judge dated 26.11.2009 wherein the learned Single Judge has allowed the writ petition filed by the respondent-petitioner on the ground that it is covered by a Division Bench judgment of this Court rendered in LPA No. 165 of 1989 in C.W.P. No. 950 of 1989. Learned counsel for the appellant submitted that the appeal was fixed for 4.12.2009 and it was preponed and decided on 26.11.2009 without the appellants being given proper opportunity for contesting the matter This submission of the appellant seems to be LPA No. 1529 of 2011(O&M) 2 misplaced as perusal of the order in appeal will go on to show that counsel for the Union of India was very much present and it is only with the consent of the counsel that the main case was pre-poned and taken up for disposal on 26.11.2009 on the ground that the matter is covered by Annexures P-1 and P-2 in C.M. Nos. 18699-700 of 2009. Thus the order being a consent order for all purposes can not be objected by the appellants who choose not to file any application before learned Single Judge to dispute the issue of consent. Faced with this issue, counsel for the appellants contended that on merits reliance has been wrongly granted to the writ petitioner applying the dictum of LPA No. 165 of 1989. The writ petitioner is seeking the relief of disability element of pension for 100% disability from the date of invalidation from military services. It is the case of the petitioner that while he was posted in Udampur (J&K) felt pain in the upper part of his right leg and was admitted in Command Hospital, Udampur in the year 1985 and the petitioner's disease was diagnosed as the case of “Osteoclastoma”. Subsequently, the said disease got aggravated and he was taken to Command Hospital, Pune and his right leg was amputated above the knee and he was provided by an above knee prosthesis from ALC Pune and thus was invalidated out of army after rendering total service of 21 years 4 months and 14 days from 18.10.1965 to 02.03.1987. The disability certificate dated 19.7.1986 has been attached as Annexure P-1 with the writ petition. Thus the factum of the petitioner having suffered the disability and dispensing his service is not in dispute and thus the learned Single Judge has rightly LPA No. 1529 of 2011(O&M) 3 disposed of the writ petition holding that the writ petitioner was entitled for disability pension following the dictum of the earlier L.P.A. bench, which reads as under:- “For the reasons mentioned above, the appeal is allowed. The order of the learned Single Judge is modified by directing that the appellant shall be entitled to disability pension w.e.f. the date he was boarded out of service. The amount payable to the appellant shall be calculated by the competent authority and payment of the arrears be made to him within 4 months of the presentation of the certified copy of this order. Else he shall get interest @ 12 % per annum from the date of discharge from service.” This petition is, accordingly, disposed of in terms of the aforesaid judgment. Petitioner shall be entitled to the same relief. However, the payment of arrears shall be restricted to three years preceding to the filing of the writ petition. “ Learned Single Judge has also restricted the payment of arrears to three years preceding the filing of the writ petition and therefore the interest of the Union of India has been protected as the arrears from the date of disability have not been granted. Accordingly, we feel that there is no scope for interference in the present Letters Patent Appeal and the same is dismissed. (HEMANT GUPTA) (G.S. SANDHAWALIA) JUDGE JUDGE 23.11.2011 reena