-1- Civil Writ Petition No.1770 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 25,2008. Kapoor Singh Sandhu ... 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. K.S. Sivia, Advocate, for the petitioner. Ms. Nirmaljit Kaur, Additional Solicitor General of India, for the respondents. -.- MOHINDER PAL, J. The petitioner was enrolled in the Army Ordnance Corps on July 28, 1965, as Rect./ Clerk. He was invalidated -2- Civil Writ Petition No.1770 of 2007. out from this service with effect from November 04, 1966 with 100 per cent disability due to Pleural Effusion (right side) on the recommendation of the Medical Board. According to the petitioner, the disability of the petitioner was attributable to and aggravated by the Army service. The petitioner was granted disability pension, consisting of disability element and service element. The petitioner was brought before Re-Survey Medical Board (hereinafter referred to as `R.S.M.B) for seven time. His disability was re-assessed from time to time and it was found more than 20 per cent. However, in the year 1985, when he was brought before the R.S.M.B for the eighth time, his disability was assessed at zero per cent. As a result thereof, disability pension, consisting of both the elements i.e service and disability element, of the petitioner was discontinued with effect from August 08, 1985. Against the order whereby disability pension of the petitioner was discontinued, he went in appeal. It was rejected. The question involved in this writ petition filed under Articles 226/227 of the Constitution of India is whether the petitioner is entitled to get service element of pension after the benefit of disability pension was withdrawn from him on re- assessment of disability at zero percent. In the written statement filed by the respondents, it has been pleaded that disability pension to the petitioner was rejected on August 08, 1995 and the appeal preferred by him -3- Civil Writ Petition No.1770 of 2007. against the order discontinuing his disability pension was dismissed on September 27, 1986. However, the present writ petition, which has been filed after 20 years of rejection of the appeal, is liable to be rejected on account of delay and latches. So far as service element of pension is concerned, it has been pleaded that as per the law existing at the time of discharge of the petitioner from Army, it was admissible only to those pensioners who had rendered minimum ten years' service. Once the disability element is discontinued, service element will also be discontinued. We have heard Mr. K.S. Sivia, Advocate, appearing for the petitioner and Ms. Nirmaljit Kaur, Additional Solicitor General of India, appearing for the respondents and have gone through the records of the case. So far as delay in filing the present writ petition is concerned, it is now well-settled that in such matters the question of delay would not be material and it cannot be used to defeat the rights of the petitioner to get pension. In the present context, reference to the relevant provisions of Regulations 173 and 186 of the Pension Regulations for the Army, 1961 (for short `the Pension Regulations) is necessary. Pension Regulation 173 reads as under:- “ Primary conditions for the grant of disability pension: -4- Civil Writ Petition No.1770 of 2007. 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 a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or above. Pension Regulation 186 is as follows:- “ 186 (1) An individual who is invalidated out of service with a disability attributable to or aggravated by service but assessed at below 20 per cent shall be entitled to service element only. (2) An individual who was initially granted disability pension but whose disability is re- assessed at below 20 % subsequently shall cease to draw disability element of disability pension from the date it falls below 20 per cent. Her shall, however, continue to draw the service element of disability pension.” A perusal of Pension Regulation 173 reveals that -5- Civil Writ Petition No.1770 of 2007. disability pension, consisting of service element and disability element, is payable to an Army personnel who is invalidated from service on account of disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above. Pension Regulation 186 (1) states that an Army personnel who is invalidated out of service with a disability assessed at below 20 per cent shall be entitled to service element only. The present controversy is covered under Pension Regulation 186 (2) which clearly states that an Army personnel, who was initially granted disability pension but whose disability was re-assessed at below 20 per cent subsequently, shall cease to draw disability element of pension from the date it falls below 20 per cent. However, he shall continue to draw the service element of disability pension. When disability of the petitioner was assessed at zero per cent, he ceased to have any right to get disability element of pension, but he continued to be entitled to get service element of pension. A Division Bench of this Court in a judgment rendered in the case of Amarjit Singh v. Union of India and others (Civil Writ Petition No.12311 of 1996 decided on February 27, 1997), where in similar circumstances, the petitioner therein was denied service element of pension, held that he was entitled to minimum service pension of Rs.375/- per month payable to an ex-military personnel as per the orders issued by the Central Government. The respondents -6- Civil Writ Petition No.1770 of 2007. were directed to disburse pension (service element) to the petitioner therein at the rate of Rs.375/- per month and the arrears due were ordered to be quantified and disbursed within three months from the date of receipt of a copy of that judgment. It is relevant to mention here that the judgment in Amarjit Singh's case (supra) was challenged by the respondents in the Hon'ble Supreme Court by way of filing Special Leave Petition No.7400 of 1997, which was dismissed on September 22, 1997, upholding the judgment of the Division Bench of this Court. We are also of the view that once the service element of pension was granted to the petitioner, the same cannot be denied for the remaining period by asserting that he lacks ten years of qualifying service in view of the clear-cut provisions of Pension Regulation 186 (2), reproduced above. Resultantly, the petitioner is held entitled to be paid service element of pension as per the rates fixed by the Central Government from time to time. His pension will be calculated/fixed at the relevant rates from the date it was discontinued i.e August 08, 1985. However, arrears of pension, so calculated, shall be restricted to three years and two months preceding the filing of this writ petition. The respondents are directed to disburse the arrears to the petitioner within three months from the date of receipt of a copy of this order. In case the arrears are not disbursed within the said period, the entire arrears will carry interest at the rate of -7- Civil Writ Petition No.1770 of 2007. nine per cent per annum from the date of expiry of three months till the date of payment. This writ petition is allowed in the above terms with no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 25, 2008. ak