CW 2914/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.2914/06 Bhanwar Singh Versus UOI & Ors. DATE OF ORDER : 17/01/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. R.S. Bhadauria, for petitioner Mr. Sanjay Pareek, for respondents *** Instant petition has been filed by petitioner assailing order Ann.8 dt.10th December, 1987 whereby his disability pension was discontinued from 17th January, 1986 on the premise that Resurvey Medical Board has assessed his disability to be less than 20%. Petitioner was enrolled in Army on 24th May, 1967 and as alleged in the petition, while in service due to injury suffered by him during the course of physical training on 5th February, 1970 who was disabled to serve the respondents any further and the Resurvey Medical Board which was held on 17th October, 1971 assessed his disability to be more than 20%. As such, he was allowed to get disability pension for the service rendered by him. However, Resurvey Medical Board again held on 2nd August, 1987 where it was assessed to be less than 20% for life since the effect of its aggravation deemed to have passed off. As a consequence whereof, his disability pension was CW 2914/06 [2] withheld/discontinued by the respondents vide order Ann.8 dt.10th December, 1987. Counsel for petitioner submits that in such cases where disability on re-assessment being less than 20% permanently still such retired personnel are entitled for pension based on their service element and cut-off date fixed by the respondents on 1.1.1973 has been declared to be arbitrary and violative of Art.14 & 16 of the Constitution of India in the case of Smt. Sinokhi Vs. Union of India [2002 (3) RLR-184] and in these changed circumstances, the petitioner is entitled for disability pension based on service element in terms of judgment [supra] – relevant Para 10 whereof is reproduced as under: “10. Evidently Army Instruction No.4/S/75 dated December 19, 1975 which contain the sentence “These orders will take effect from 1st January 1973, i.e., these will apply to all those who were on the effective strength of the Army on that date and who became non-effective thereafter.” was found violative of Article 14 of the Constitution and a direction was issued that the said Army Instruction shall be applicable to all army personnel covered by it regardless of the date of their retirement.” Counsel for respondents while supporting order impugned, submits that judgment of this court in Smt. Sinokhi Vs. Union of India [2002 (3) RLR-184] was further relied in Writ Petition CW 2914/06 [3] No.497/95, Sepoy Hukma Ram Vs. Union of India & Others, decided on 2nd August, 2005 - against which respondents have preferred special appeal which is pending adjudication. But, this fact could not have been controverted that the basic judgment of Smt. Sinokhi Vs. Union of India [supra] has attained finality. Counsel has informed this court that in terms of judgment [supra] payments were also made to him. Since the petitioner is also similarly situated and cut-off date once has been struck down by this court dt.1.1.1973 that makes the petitioner to be entitled for same benefits flowing thereof and no distinction can be made amongst persons who are similarly situated like petitioner. Consequently, writ petition stands allowed. Order Ann.8 dt.10th December, 1987 is hereby quashed and set aside. Respondents are directed to allow the petitioner disability pension of service element in accordance with Rules along with consequential benefits flowing thereof. Respondents may ensure compliance within three months. No costs. [AJAY RASTOGI], J. FRBOHRA2914CW06 17-1.doc