CWP No.5388 of 1998 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5388 of 1998 (O&M) Date of decision: December 4, 2006. Ex.Sep Gurbachan Singh ...Petitioner(s) v. Union of India & Ors. ...Respondent(s) Present: Shri Bhim Sen Sehgal, Advocate for the petitioner. Shri Gurpreet Singh, Advocate for the respondents. Surya Kant, J. (Oral) In this writ petition, the petitioner has sought a direction to grant him disability pension consisting of both the elements, i.e. service as well as disability element with effect from 15.9.1966 on the basis of 20% disability which was assessed by the Medical Board at the time of his invalidation on the aforesaid date. Briefly, the facts may first be noticed. The petitioner, after rendering 9 years and 310 days service, was invalidated due to the disease “Mixed Deafness Left Ear (398)(V-67)” with 20% disability as assessed by the Medical Board. The petitioner, however, was denied disability pension including service element of pension on the ground that the Chief Controller of Defence Accounts (P), Allahabad (CCDA(P)) has reduced the petitioner's disability to less than 20%. CWP No.5388 of 1998 -: 2 :- Thereafter, a review medical board was held on 13.7.1968 which also reduced the petitioner's disability to less than 20%. The petitioner, however, was again subjected to review medical board on 18.6.1992 and having found that his disability had increased more than 20%, he has been granted the disability pension including service element w.e.f. 18.6.1992. There is no dispute that since then the petitioner is getting his disability pension. The controversy, however, pertains to the period from 15.9.1966 to 17.6.1992. In view of the judgment rendered by the Hon'ble Supreme Court in the case of Ex. Sapper Mohinder Singh v. Union of India, Civil Appeal No.164 of 1993, decided on 14.1.1993 (a copy of which has been appended as Annexure P-1), it can hardly be disputed that CCDA(P) was not the authority competent to review/supersede the decision of the Medical Board with regard to the assessment of the disability of an army personnel. The petitioner's claim to that extent is, thus, squarely answered in his favour by the Hon'ble Supreme Court. In this view of the matter, the petitioner has to be held entitled to disability pension from,16.9.1966 to 14.9.1968. It is ordered accordingly. As regard to the period from 15.9.1968 till 17.6.1992, Learned Counsel for the petitioner vehemently contends that even if it is assumed that the petitioner's disability was less than 20%, yet he was entitled to pension with the service element, more so when the petitioner has rendered service of 9 years 310 days. He has placed reliance on a judgment of this court in the case of Dalip Singh v. UOI & Ors. (CWP No.2611 of 2003, decided on 6.9.2006), which, in turn has relied upon a Division Bench CWP No.5388 of 1998 -: 3 :- judgment of this Court in the case of Amarjit Singh v. Union of India and others, CWP No.12311 of 1996, decided on 27.2.1997, against which SLP was also dismissed by the Hon'ble Supreme Court and, thus, has attained finality. In Amarjit Singh's case (supra), it is held that even if disability of an army personnel to whom disability pension has been granted, reduces to less than 20%, it does not disentitle him to claim pension on the basis of service element. The above noticed claim of the petitioner has been, thus, fully answered in his favour. Consequently and relying upon the view taken by this Court in the above stated judgment, it is held that the petitioner is also entitled to pension on the basis of service element from 15.9.1966 to 17.6.1992. Learned Counsel for the respondents, however, vehemently contends that the petitioner should be paid arrears only for a period of 3 years and 2 months preceding the date of filing of this petition. In this regard, he has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Shri Madhav Laxman Vaikunthe v. State of Mysore, AIR 1972 SC 2638. On the other hand, Learned Counsel for the petitioner, relies upon a recent judgment of the Hon'ble Supreme Court in the case of S.K. Mastan Bee v. General Manager, South Central Railways and another, (2003)1 SCC 184, which has been followed by this Court in Dalip Singh's case (supra), and contends that the respondents cannot be permitted to plead the bar of limitation by taking advantage of their own wrongs. I find that in Dalip Singh's case (supra), the aforesaid plea was specifically raised on behalf of the respondents but has been turned down by CWP No.5388 of 1998 -: 4 :- this Court observing as follows:- “The argument of the learned State counsel raising the bar of limitation does not require any detailed consideration in view of the judgment of Hon'ble Supreme Court in the case of S.R. Bharanala v. Union of India AIR 1997 SC 27 debarring the respondent-State to plead the bar of limitation after committing default. In other words, the respondents cannot be permitted to take advantage of their own wrong. It has further been held by the Hon'ble Supreme Court in the case of S.K. Mastan Bee v. General Manager, South Central Railways and another 2003 (1) SCC 183 that where the petitioner is illiterate person with meagre resources then despite delay the writ petition for arrears of family pension would be maintainable. In the present case, the petitioner is Sepoy who is not literate. Therefore, I respectfully follow the view of the Hon'ble Supreme Court in the case of S.R. Bharanala (supra) and S.K. Mastan Bee (supra) and over-rule the objection with regard to delay.” Being in respectful agreement with the above quoted view taken by this Court, I am of the considered view that the petitioner is also entitled to be paid the entire arrears of pension for the two sets of periods, referred to above, i.e., disability pension w.e.f. 15.9.1966 to 14.9.1968 and pension based upon service element from 15.9.1968 to 17.6.1992. It is ordered accordingly. The arrears of pension shall be paid to the petitioner within a period of four months from the date of receipt of a certified copy of this order. The writ petition is allowed in the aforesaid terms. December 4, 2006. [ Surya Kant ] kadyan Judge