HIGH COURT OF JAMMU AND KASHMIR AT JAMMU ****** SWP No.844/01 Dated:4.11.08 Milkhi Ram v. Union of India and ors Coram: Hon’ble Mr Justice Nirmal Singh, Judge Appearing Counsel: For the petitioner(s) : Mr R.K. Gupta For the respondent(s) : Mrs Neeru Goswami, CGSC (i)Whether approved for: Reporting in Journal/Digest Yes/No (ii)Whether approved for Reporting in Press/Newspaper Yes/No The case of the petitioner is that he was enrolled in the army as Rifleman in the year 1960. It is stated that at the time of his enrolment he was hale and hearty and did not suffer from any disability. In the year 1969, when the Unit of the petitioner was stationed at NEFA border for undergoing high altitude training, the petitioner developed some pain in his eyes. He was admitted in 151 Medical Hospital, Tejpur, Assam, for undergoing treatment. In the year 1970, the petitioner was placed in low medical category permanently and was accordingly boarded out of service. The grievance of the petitioner is that he was neither paid the disability pension nor the service pension. It is stated that the disability which resulted in his invalidation out of service has been aggravated by military service, and therefore, he is entitled to disability pension. It is stated that petitioner rendered about 10 years of service and is also entitled to service pension. On notice, respondents have filed counter stating therein that the writ petition has been filed after about 21 years of discharge of the 2 petitioner from service, and thus, suffers from delay and laches. It is stated that in case, the disability suffered by an army personnel during his service is assessed at less than 20%, he is not entitled to disability pension and as the disability of petitioner was assessed at less than 20%, i.e. 15-19%, he was not allowed the said benefit. The further stand taken by the respondents is that on placing the petitioner in low medical category CEE(P) on account of the disability known as Myopia, the petitioner was asked to give his consent for retaining in service in the said medical category but he expressed his unwillingness to continue in service and opted for releasing out of service. It is stated that as the petitioner’s total service was 9 years 268 days i.e. less than 10 years, he was not held entitled to service pension. It is stated that the petitioner at the time of his release was paid invalid and death-cum- gratuity in lieu of pension for the above service rendered by him. When this petition was taken up for hearing on 3rd of May’08, following order came to be passed:- “The stand taken by the respondents in the counter is that after the disability of the petitioner was assessed at 15-19%, he was asked to give his consent for retention in army service but the petitioner showed his unwillingness to continue in service and opted for releasing out of service. To this effect, however, no document has been placed on record. In view of the above stand taken by respondents, it has become necessary to peruse the record as to whether the petitioner had shown his willingness to not continue in service and that he was boarded out of service on his own request. Respondents are accordingly directed to produce the record on the next date of hearing……….” Respondent-Union of India have not produced any such record to show that the petitioner had shown his unwillingness to be retained in 3 service in his medical category. They have, however, placed on record a letter dt. 15th of Feb’08, passed by the Senior Records Officer in which a stand has been taken that at the time of discharge of the petitioner, written unwillingness was not required to be obtained from the individual concerned and in normal course, Commanding Officers used to interview the affected personnel and based on their willingness/unwillingness, the suitability for their retention was decided. It is stated that in the case of the petitioner also, no written unwillingness was obtained from him for his retention in service. After taking into consideration the respective contentions raised by the learned counsel for the parties, I am of the opinion that this petition has no merit. So far as the disability pension is concerned, the specific stand taken by the respondents is that petitioner’s disability was assessed at less than 20%, and as such, taking into consideration the rules governing the field, he was not allowed the disability pension. In terms of Regulation 173 of Army Pension Regulations, an army personnel who suffers from a disability which is attributable to or aggravated by army service is entitled to disability pension in case the said disability is assessed at 20% or above, which is not the case here. The petitioner’s disability has been assessed at less than 20%, therefore, he has rightly been denied the disability pension by the respondents. The further grievance which has been projected by the petitioner and as noticed above is regarding non grant of service pension by the respondents. The submission of the petitioner is that as his disability was not of severe nature, he should have been retained in service in his medical category so that he was able to complete the qualifying service for the purpose of pension. The stand of respondents in this regard is that as the petitioner has rendered 9 years and 268 days of service i.e. less than ten years, 4 therefore, he is not entitled to service pension. The further stand of respondents is that this petition suffers from delay and laches. It is settled proposition of law that ordinarily in the matter relating to pension, the courts do not deny the relief on account of delay as the claim to pension is a recurring cause and even if there is some delay, the same is to be considered on the facts and circumstances of each case. In the case in hand, no doubt, the petitioner is seeking the relief of service pension but he has not rendered the qualifying service for grant of this benefit which as per the respondents is ten years. The grievance of the petitioner that as his disability was not of severe nature, therefore, he should have been retained in service in his medical category to complete the minimum qualifying service cannot be considered at this stage. It is admitted position that the petitioner was enrolled in the army on 20th of July’60 and was invalided out from service on 13th of April’70. He has approached this court after more than about 30 years of his invalidation, and therefore, as indicated above, no direction can be given to respondents at this stage for considering the case of the petitioner for his retention in service in the medical category in which he was boarded out. Keeping in view the above fact, this petition so far as it relates to grant of benefit to the petitioner for his retention in service enabling him to complete the minimum qualifying service for the purpose of service pension is found to be suffering from delay and laches. The petitioner having not rendered the qualifying service for the purpose of service pension is not held entitled to the said benefit. Petition is accordingly dismissed. (Nirmal Singh) Judge Jammu Dt. 4.11.08 SS/ 5