CWP NO.17672/2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP NO.17672/2007 Date of Decision: 12.8.2008. Ex-Sub.Pritam Singh (Retd.) ..........Petitioner. Versus Union of India and others ..........Respondents. CORAM: HON'BLE MR.JUSTICE JASBIR SINGH. HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.B.S.Ghuman,Advocate for the petitioner. Mr.S.K.Sharma,Advocate for respondents UOI. Jaswant Singh,J. Petitioner has filed the present writ petition praying for quashing of the impugned orders dated 17.7.2006 (Annexure P/3) and 4.8.2006 (Annexure P/4), whereby his request for compensation on account of injuries sustained in 1984 anti Sikh riots and disability pension has been rejected. Briefly stated the facts are that the petitioner was enrolled in the Army on 24.1.1962 as a Sepoy in medical shape I. On 1.11.1984, while returning from Delhi to his place of posting at Ahmednagar by Jhelum Express, after attending a JCO Tester Course at New Delhi, he was pulled out at Tughlaqabad Railway Station by a rioting mob during the anti Sikh riots and severely injured. He was treated at Military Hospital, Mathura from 2.11.1984 to 17.11.1984 for his injury diagnosed as fractured Ulna. A Court of Enquiry was conducted and it was opined that the injuries CWP NO.17672/2007 2 sustained by the petitioner are attributable to military service. After his treatment, the petitioner was placed in medical category 'CEE' (temporary) w.e.f. 9.4.1985. He was further, on 2.5.1986, placed in lower medical category 'CEE' (permanent) for a period of two years. The petitioner made an application for his discharge on extreme compassionate grounds. Thereafter the petitioner was discharged from service w.e.f. 1.11.1986 at his own request and at the time of his discharge he was in lower medical category 'CEE' (permanent) and his Release Medical Board assessed his disability to be 20% for two years. The petitioner was granted service pension for his 24 years of service. However, he was not granted disability pension by Principal Controller of Defence Account (Pension) {for short PCDA(P)}, Allahabad, because of his discharge on his own request. His request for the grant of compensation on account of victim of anti Sikh riots has also been rejected vide Annexure P/3 and P/4. Hence the present writ petition. Respondents, upon notice, have filed reply and admitted that the petitioner had suffered injuries during the anti Sikh riots and the same was attributable to military service. It is also averred that his degree of disability assessed was 20% for two years. The claim for disability pension has been rejected only on the ground that the petitioner had been discharged from Army service after rendering 24 years' service at his own request. We have heard learned counsel for the parties and perused the record. The short question posed before us is as to whether the petitioner who has been discharged on his own request is entitled to the CWP NO.17672/2007 3 grant of disability pension or not. Before we proceed to decide on merit, it is necessary to reproduce certain relevant provisions of the Pension Regulations for the Army,1961 (for short 1961 Regulations):- “ Primary conditions for the grant of disability pension: 173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated from service on account of disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or above. The question whether a disability is attributable to or aggravated by military service shall be determined under the Rule in Appendix-II. 173-A. Individuals who are placed in a lower medical category (other than `E') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalidated from service for the purpose of the entitlement rules laid down in Appendix CWP NO.17672/2007 4 II to these Regulations. Note: The above provision shall also apply to individuals who are placed in a low medical category while on extended service and are discharged on that account before the completion of the period of their extension. Rules 4 of Entitlement Rules for the Casualty Pensionary Awards,1982 of Appendix II, referred to in Pension Regulation 173-A, are as follows:- “ 4.Invalidating from service is a necessary condition for grant of disability pension. An individual who at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCOs/ORs, NCs (E) who are placed permanently in a medical category other than `A' and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have invalidated out of service.” A perusal of provisions of Regulation 173 makes it clear that “invalidated from service” is one of the necessary conditions for the grant of disability pension. Rule 4 of Entitlement Rules for Casualty Pensionary Awards,1982 (for short 1982 Rules) of Appendix II makes it clear that if CWP NO.17672/2007 5 an individual, who at the time of his release, is in a lower medical category than that in which he was recruited, will be treated as invalidated from service. Further, provisions of Regulation 173-A provides that an individual who is placed in lower medical category (permanent) other than category 'E' and is unwilling to accept alternative employment shall be deemed to be invalidated from service for the purpose of Entitlement Rules laid down in Appendix II of the 1961 Regulations. It is admitted case of the parties that the petitioner was enrolled in the Army in medical shape I and he had suffered an injury which is attributable to military service. It is also not disputed that the petitioner was placed in a lower medical category 'CEE' (Permanent). It is also not disputed that the Release Medical Board had assessed his disability to be 20% for two years. Therefore, once the petitioner is placed in a low medical category because of the injury suffered by him, which is attributable to military service, according to Entitlement Rules, he shall be treated as “invalidated from service”. If that is so then the three conditions prescribed under Regulation 173 namely (i) invalidation from service on account of disability, (ii) which is attributable to military service and (iii) degree of disability assessed at 20% or above, are fulfilled by the petitioner and therefore, he is entitled to grant of disability pension. The ground taken by the respondents that the petitioner is not entitled to the grant of disability pension because he was discharged at his own request, is not sustainable in view of the provisions of Pension Regulation 173-A, reproduced hereinabove,which specifically provides that individuals who are placed in a lower medical category and are unwilling to accept the alternative appointment or sheltered appointment CWP NO.17672/2007 6 shall be deemed to have been invalidated from service. Therefore, the basis put forth by the respondents for denying the disability pension to the petitioner is also not sustainable. For the reasons recorded above, we allow the writ petition and direct the respondents to grant disability pension to the petitioner with effect from his date of discharge from military service, on the basis of his 20% disability as opined by the Release Medical Board. However, the payment of arrears of such disability pension shall be restricted to 38 months prior to the date of filing the writ petition. For future grant of disability pension, the respondents shall be at liberty to re-assess the disability of the petitioner from the Re-survey Medical Board under the rules. The arrears of disability pension shall be calculated and paid to the petitioner within a period of three months from the date of receipt of a certified copy of this order, failing which the petitioner shall be entitled to interest @ 12% p.a., from the date of this order till the date of payment. (Jaswant Singh) Judge 12.8.2008. (Jasbir Singh) joshi Judge