CWP No.5680 of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA, CHANDIGARH C.M.No.15932 of 2008 and C.W.P.No.5680 of 2008 Date of Decision: 22.8.2008 Umed Singh ......Petitioner Versus Union of India and Others ...Respondent(s) Present: Mr. R.S. Sangwan, Advocate for the petitioner. Ms. Geeta Singhwal, Advocate for the respondents. CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JASWANT SINGH JASWANT SINGH,J C.M.No.15932 of 2008 Application is allowed. Written statement on behalf of respondents No.1 to 4 is taken on record. CWP No.5680 of 2008 Petitioner was enrolled in the army as Sepoy w.e.f 28.3.1981 and was invalidated out of service w.e.f 7.7.1984 in Low Medical Category on account of “Pulmonary Tuberculosis” disease. His disability, at the time of discharge, was opined as attributable to military service and the degree of disability was recommended at 100% for two years by Invalidating Medical Board. Accordingly, he was granted disability pension. His disability was reviewed from time to time till last review from 13.8.1992 to 8.7.1994 when he was granted disability pension. Thereafter, Re-survey Medical Board held on 6.5.1994, assessed his degree of disability to be less than 20 % for CWP No.5680 of 2008 2 ten years, therefore, his disability pension was dis-continued for ten years w.e.f 9.7.1994. The decision discontinuing disability pension was communicated to the petitioner vide letter dated 21.10.1994 (Annexure P.7) with an advice to prefer an appeal to the Appellate Authority within six months. The petitioner, however, did not file any appeal. Re-survey Medical Board was again held on 20.9.2004, on the expiry of the stipulated period of ten years, which again recommended the degree of disability of the petitioner to be below 20 % for life. The petitioner requested for holding a Review Medical Board and after obtaining sanction, his Review Medical Board was held on 19.1.2007, which opined his degree of disability to be 30% for life. Accordingly, he has been granted disability pension at the rate of Rs.465/- per month w.e.f 19.1.2007 for life. The petitioner is aggrieved by the action of the respondents in not releasing disability pension to him w.e.f 9.7.1994/21.10.1994 to 19.1.2007 and hence the present writ petition has been filed seeking quashing of impugned order dated 29.3.2005 (Annexure P.11), vide which his claim for disability pension w.e.f 9.7.1994 has been rejected, with a further prayer to compute the aforesaid disability element claim according to rounding off policy applicable w.e.f 1.1.1996 with 18% interest per annum. Respondents, upon notice, filed their reply. In the written statement, the stand of the respondents is that the petitioner had not filed any appeal against the opinion dated 6.5.1994 of the Re-survey Medical Board and, therefore, was not entitled to grant of disability pension before 19.1.2007 when it was opined by the Review Medical Board that his degree of disability had increased to 30%. It has been further stated that the petitioner throughout has been paid the service element of the disability CWP No.5680 of 2008 3 pension for the aforesaid period from 9.7.1994 to 19.1.2007. We have heard learned counsel for the parties and perused the record carefully. Learned counsel for the petitioner has argued that the petitioner is at least entitled to grant of disability pension w.e.f 10.7.1994 as the opinion of the Re-survey Medical Board held on 20.9.2004 assessing the degree of his disability below 20% was substituted in his Review Medical Board held on 19.1.2007, wherein his disability has been assessed as 30% for life and thus entitled for disability pension. In support of the same, he has relied upon a Division Bench judgment of this Court in CWP No.2446 of 2007, titled JC 182303N Ex-Subedar Ram Richpal v. Union of India and Others (Annexure P.13), decided on 13.3.2008. On the other hand, learned counsel for the respondents-Union of India has opposed the contentions. After giving our thoughtful consideration to the rival submissions, we are in agreement with the contentions of counsel for the petitioner. It is undisputed that the petitioner had not filed any appeal against the opinion of the Re-survey Medical Board held on 6.5.1994 vide which his disability had been assessed to be below 20% for a period of ten years and thus he is not entitled to continuance of disability pension, therefore, no relief can be claimed for that period. It is also admitted that the Re-survey Medical Board held on 20.9.2004 was to assess the degree of disability of the petitioner w.e.f 10.7.2004 and it had assessed the degree of disability as below 20%. The petitioner did not accept the opinion/findings of the Re-survey Medical Board and requested for constitution of a Review Medical Board. His request was accepted and a Review Medical Board was CWP No.5680 of 2008 4 held on 19.1.2007 and it was opined that his degree of disability was 30% for life. Admittedly, on the said opinion, the petitioner has been granted disability pension w.e.f 19.1.2007. This action of the respondents of granting disability pension w.e.f 19.1.2007, to our mind, is not sustainable. In our considered opinion, the findings/opinion of the Review Medical Board would relate back to the date for which the Re-survey Medical Board had been constituted to assess the degree of disability of the petitioner for the grant/continuance of the disability pension i.e w.e.f 10.7.2004 as the previous Re-survey Medical Board held on 6.5.1994 had dis-continued the disability pension for ten years w.e.f 9.7.1994. In a similar situation, this Court in Ex-Subedar Ram Richpal's case (supra) has held that the opinion of the Medical Board on appeal would relate back to the period covered under the Survey Medical Board for assessing and determining the grant of disability pension. No other point was urged by the counsel for the parties. With the aforesaid reasons, this petition is partly allowed and the petitioner is held entitled to the grant of disability pension w.e.f 10.7.2004 in stead of 19.1.2007 with all consequential relief of arrears etc. Needful be done within a period of three months from the date of receipt of certified copy of the order. ( JASWANT SINGH ) JUDGE August 22, 2008 ( JASBIR SINGH ) manoj JUDGE