IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 19417 of 2007 DATE OF DECISION : FEBRUARY 18, 2009 EX. NAIK PARMOD KUMAR ....... PETITIONER(S) VERSUS UNION OF INDIA & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Chanderhas Yadav, Advocate, for the petitioner(s). Ms. Geeta Singhwal, Advocate, for respondents. AJAI LAMBA, J. The issue raised in this petition under Articles 226/227 of the Constitution of India is in regard to entitlement of the petitioner, who was discharged on his request on compassionate grounds, to disability pension, the petitioner having suffered disability which was attributable to military service. The facts, necessary for consideration of the issue, are that the petitioner was enrolled in the Army as a Sepoy on 7.4.1987. On 15.6.2003, the petitioner was sent on temporary duty to Delhi to submit food samples Civil Writ Petition No. 19417 of 2007 2 to the Central Forensic Laboratory at Delhi. When the petitioner was going to board the train, he met with an accident. On 31.8.2003, the petitioner was discharged from military service on his request after serving for 15 years 6 months and 20 days. Release Medical Board was not constituted as the discharge was on the request of the petitioner. On 8.7.2003, the condition of the petitioner was not good and he was granted sick leave for 6 weeks. The petitioner was, again, admitted in Base Hospital, Delhi on 19.8.2003. The petitioner was diagnosed for Compound Spiral Fracture of Tibia (Left). As the petitioner could not perform his duties, a Court of Inquiry was held. The result of Court of Inquiry has been placed for consideration of the Court as Annexure P-1 and the relevant portion thereof reads as under:- “Opinion of the Court The Court is of the following opinion:- xx xx xx xx xx xx xx xx xx xx (b) The accident which occurred to No.6384091 'F' NK/SHT Pramod Kumar on 15th June 2003 was beyond the control of the Indl. and no one is to be blamed for the same. (c) The injury sustained by No.6384091 'F' NK/SHT Pramod Kumar is attributable to Mil. Service.” The petitioner was granted service element of pension only, as is evident from letter dated 1.3.2004 (Annexure P-2). The petitioner made a number of representations before the authorities praying for disability pension. Vide letter dated 19.8.2004 (Annexure P-3), the respondent-authorities showed their intention to appoint a Release Medical Board, which was later sanctioned by the President of India vide Civil Writ Petition No. 19417 of 2007 3 letter dated 14.1.2005 (Annexure P-4). After some more correspondence, regular Release Medical Board examined the petitioner. The opinion dated 17.5.2005 given by the Release Medical Board has been placed on record as Annexure P-5, which recommended the petitioner to be released from service in A-3 permanent category. Annexure P-6 is a document authored by the Release Medical Board, which indicates that on account of the Compound Spiral Fracture of the Tibia, the petitioner had suffered 20% disability for life. The petitioner, thereafter, pursued his claim for disability pension and submitted the documents as required by the authorities. Vide letter dated 17.1.2006 (Annexure P-8), the claim of the petitioner for disability pension has been rejected on the ground that the petitioner was discharged from service at his own request on compassionate ground. It seems that the petitioner filed an appeal, which has been dismissed vide order dated 5.5.2006 (Annexure P-9). Para-3 of the order (Annexure P-9) reads as under:- “3. As regards of your disability element it is informed that as per existing policy, person discharged from service at own request on compassionate ground is not admissible disability element or will any appeal lie against non grant of disability pension/element.” It seems that the petitioner again approached the authorities vide appeal dated 25.9.2006 (Annexure P-10), while highlighting the report given by the Court of Inquiry to the effect that the disability was attributable to military service and the injury had been sustained for reasons beyond the control of the petitioner. Despite the second appeal Civil Writ Petition No. 19417 of 2007 4 having been made in reference to various aspects of the case, viz. bona fides of the petitioner, etc., the claim of the petitioner was yet again rejected vide order dated 14.10.2006 (Annexure P-11), on the only ground that the petitioner was discharged from service at his own request before completion of prescribed service limits under Army Rule 13(3) Item III (IV) and not invalidated out. The only reason assigned is that there was a policy not to allow disability pension to a person who is discharged from service at his own request. The petitioner, thereafter, got a legal notice issued on 31.7.2007, as is evident from Annexure P-12. Even the legal notice has been rejected vide communication dated 10.9.2007 (Annexure P-13). Learned counsel for the petitioner, in the back-drop of facts and circumstances noticed above, has argued that the opinion (Annexure P-1) makes it evident that the petitioner did not receive the injury for reasons within his control. Annexure P-1 further makes it evident that the injury and consequent disability was attributable to military service. Despite such being the facts, the claim of the petitioner for disability pension has been rejected on the ground that the petitioner sought discharge on his own request. It has been argued that the disability pension is admissible to the petitioner as the disability is attributable to military service. Learned counsel for the petitioner has placed reliance on a judgment rendered by a Division Bench of this Court in CWP 10174 of 2006 decided on 1.4.2008 (Nk. Amrik Singh Ex. No.2481131H v. Union of India and others). Civil Writ Petition No. 19417 of 2007 5 Reliance has also been placed on a Division Bench judgment rendered by the High Court of Delhi at New Delhi in CW No.2967 of 1989 decided on 5.5.2004 (Mahavir Singh Narwal v. Union of India and others). It has further been contended that the judgment given in Mahavir Singh Narwal's case (supra) has been affirmed by the Hon'ble Supreme Court of India in Special Leave to Appeal (Civil) No.24171 of 2004 decided on 4.1.2008 (Union of India and another v. Mahavir Singh Narwal (Dead) by LRs). It has been brought out by the learned counsel for the petitioner that the issue as raised in this petition has been addressed by the 6th Pay Commission and the 6th Pay Commission has recommended that the personnel who retire voluntarily would also be eligible for grant of disability pension. Learned counsel for the respondents has only contended that the case of the petitioner is not covered under the rules of the respondents. The petitioner sought discharge from service on his own request on compassionate ground, the petitioner, therefore, does not have any right to claim disability pension. I have considered the issue. The issue faced by this Court is the claim for disability pension. In view of the established fact from Annexures P-1 and P-6 to the effect that the injury sustained by the petitioner is attributable to military service and the petitioner having suffered 20% permanent disability, it has to be held that discharge from service after invalidating the petitioner or on request of the petitioner would not be a relevant Civil Writ Petition No. 19417 of 2007 6 factor/circumstance to consider the claim of the petitioner for disability pension. This issue has been addressed by a Division bench of this Court in Nk. Amrik Singh's case (supra). The relevant portion of the judgment, when extracted, reads as under:- “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 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. xx xx xx xx xx xx xx xx xx xx 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 Civil Writ Petition No. 19417 of 2007 7 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.” From a perusal of the judgment rendered in Nk. Amrik Singh's case (supra), it transpires that Pension Regulations 173 and 173-A of the Pension Regulations for Army, 1961, have been considered by this Court. Consideration of these provisions indicates that a person has been held entitled to disability pension when a person is “invalidated from service”. The provisions entitle a person to disability pension even if an individual, at the time of his release, was in low medical category whereas at the time of recruitment in Army, he had no such disability. It has been held that merely because the petitioner has attained discharge on compassionate grounds although his disability is attributable to and aggravated by military service, it will not be a ground to reject his claim for disability pension. When the present case is considered on the touch stone of the spirit of these provisions, it becomes evident that the petitioner did not suffer from any disability at the time of his recruitment. The petitioner served the Indian Army from April, 1987 till August, 2003, i.e. for more than 15-1/2 years. While on duty, the petitioner met with an accident for reasons beyond his control and suffered disability which has been held to be attributable to military service. Disability itself is to the extent of 20% for life. In such circumstances, the claim of the petitioner for disability Civil Writ Petition No. 19417 of 2007 8 pension cannot be denied. From Mahavir Singh Narwal's case (supra), the following needs to be considered:- “On careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is necessary condition for grant of disability pension. What has to be seen for entitlement for 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 was so then such person will be treated as invalidated from service. It is the admitted case of the parties that at the time of recruitment the petitioner did not have any disability. It is also admitted case of the parties that the petitioner got disability on account of stress and strain of military service and his category was initially lower down temporary to CEE on 21st September, 1978 for a period of 6 months and after the Release Medical Board examined the petitioner on 11th April, 1979 it found the disability to be 30% aggravated by stress of military service and he was down graded to permanent low medical category . Once the petitioner was in low medical category according to Rules 1 and 2 of Appendix II of Pension Regulations 173 he shall be treated as invalidated from service. It seems that on careful consideration of the Pension Regulations 173, read with Rules 1 and 2 of Appendix II, the respondents themselves have recommended for grant of disability pension to the petitioner vide their letters dated 3rd April, 1986 and subsequently on 11th April, 1986 which is as under. ........ xx xx xx xx xx xx xx xx xx xx The arguments advanced by the learned counsel for the respondents that these letters were not issued by the competent authority is not of any relevance for grant of disability pension. What is relevant is whether the mandate of Civil Writ Petition No. 19417 of 2007 9 Pension Regulation 173 read with Rules 1 and 2 of Appendix II has been taken into consideration or not. Merely because a person has attained discharge on compassionate ground although his disability has been acquired on account of stress and strain of military service will not be a ground to reject the claim of disability pension, it has been invalidated act in terms of Appendix II of Rule 173. We allow the writ petition and direct the respondent to grant disability pension to the petitioner on the basis of assessment of 30% disability as opined by the Release Medical Board in the year 1979 upto date . For future disability pension the respondent may conduct another medical board to assess the percentage of disability of the petitioner. Arrears of disability pension be paid to the petitioner within a period of 8 weeks. If the same are not paid within 8 weeks the petitioner shall be entitled to the interest at the rate of 9% on the amount of arrears. With these directions the writ petition is allowed.” The Division Bench of the Delhi High Court had considered the mandate of Pension Regulation 173 and it has been held that discharge on compassionate ground when the disability had been acquired on account of military service, will not be a ground to reject the claim for disability pension. As is the admitted case, the judgment rendered in Mahavir Singh Narwal's case (supra) was challenged before the Hon'ble Supreme Court of India. The Special Leave Petition, however, has been dismissed. The purpose of giving disability pension is because during the tenure of military service, disability is suffered and the same is attributable to military service, or a disability is aggravated by military service, an individual is entitled to pension on that account i.e. acquiring Civil Writ Petition No. 19417 of 2007 10 disability. Any differentiation, such as the one suggested by the respondents viz. discharge on compassionate ground, would clearly be unreasonable, injudicious, illogical and arbitrary. In view of the above, the writ petition is allowed. The respondents are directed to grant disability pension to the petitioner on the basis of assessment of 20% disability for life. The respondents shall pay all the arrears to the petitioner within 2 months from the date of receipt of a copy of the judgment, failing which the petitioner would be entitled to interest at the rate of 9% on the amount of arrears. February 18, 2009 ( AJAI LAMBA ) Kang JUDGE