-1- Civil Writ Petition No.6083 of 2006. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 11 ,2008. Ex. Sep. Karan Singh ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. N.R. Dahiya, Advocate, for the petitioner. Ms. Nirmaljit Kaur, Assistant Solicitor General of India, for the respondents. -.- MOHINDER PAL, J. The petitioner joined the Indian Army on October 01, 1963. He was invalidated out from this service on January 11, 1968 under Rule 13 (3) III (Iii) of the Army Rules, 1954, with 20 -2- Civil Writ Petition No.6083 of 2006. per cent disability due to CHRONIC RECURRENT DERMASTITIS BOTH FEET on the recommendation of the Medical Board. The disability was suffered by the petitioner while he was detailed for duty in the high altitude area of Himalayan Mountain and suffered injuries on his feat. The disability of the petitioner being attributable to and aggravated by the Military service, he was granted disability pension, consisting of disability element and service element, with effect from January 19, 1968 to October 12, 1969 under Regulation 173 of the Pension Regulations for the Army, 1961 (for short `the Pension Regulations). Thereafter, as per recommendation of the Re-Survey Medical Board (for short `R.S.M.B), the disability pension continued upto December 14, 1971. Since the R.S.M.B held on December 15, 1971, reassessed the disability of the petitioner as nil, the disability pension was discontinued with effect from December 15, 1971. It has been averred that Circular dated May 06, 1992 (Annexure P-14) according to which service element of disability pension was made permanent with effect from January 01, 1973, but in the case of disability pensioners who had retired before January 01, 1973, service element of pension was contingent upon the continuance of disability element unless and until the pensioners had put in minimum of ten years of service before March 01, 1968 and five years of service after that date upto December 31, 1972, is violative of Articles 14 and 16 of the Constitution of India. -3- Civil Writ Petition No.6083 of 2006. In this writ petition, the petitioner has prayed for issuance of a writ in the nature of mandamus directing the respondents to release the service element of pension to him with effect from December 15, 1971. A further direction is sought to the respondents to hold the R.S.M.B of the petitioner to assess his current disability and to restore the disability element of the pension. In the written statement filed by the respondents, it has been pleaded that disability pension to the petitioner was discontinued as his disability was assessed at below 20 % by the RSMB. It has been further pleaded that since the petitioner was invalidated from service on January 12, 1968 and had not rendered ten years of service before that, in his case service element was contingent upon the continuance of disability element as per Circular dated May 06, 1992 (Annexure P-14) whereby service element of pension was notified on permanent basis with effect from January 01,1973 even if at some stage the percentage of disability of disability of the pensioners went below 20 %. We have heard Mr. N.R. Dahiya, Advocate, appearing for the petitioner and Ms. Nirmaljit Kaur, Assistant Solicitor General of India, appearing for the respondents and have gone through the records of the case. Learned counsel for the petitioner has argued that although the petitioner may not be entitled to the grant of -4- Civil Writ Petition No.6083 of 2006. disability pension in view of his disability having been assessed below 20 % by the R.S.M.B, but he he entitled to service element of pension as provided by Pension Regulation 186. In the case of Chandgi Ram v. Union of India and others (Civil Writ Petition No.8768 of 2007) decided by us on February 28, 2008, wherein the petitioner had been invalidated out of Military service with disability pension, consisting of both the elements i.e service and disability element, under Pension Regulation 173, but later on when his disability was assessed at less than 20 % by the R.S.M.B, both the elements of pension were with drawn, we formed the view that once the service element of pension was granted to the petitioner therein, the same could not be denied for the remaining period by asserting that he lacked ten years of qualifying service in view of the clear-cut provisions of Pension Regulation 186 (2) and the petitioner was held to be paid service element of pension as per the rates fixed by the Central Government from time to time. Pension Regulation 186 (2) clearly states that an Army personnel, who was initially granted disability pension but whose disability was re-assessed at below 20 % subsequently, shall cease to draw disability element of pension from the date it falls below 20 %. However, he shall continue to draw the service element of disability pension. In the case of Amarjit Singh v. Union of India and -5- Civil Writ Petition No.6083 of 2006. others (Civil Writ Petition No.12311 of 1996 decided on February 27, 1997), where in similar circumstances, the petitioner therein was denied service element of pension, a Division Bench of this Court held that he was entitled to minimum service pension of Rs.375/- per month payable to an ex-military personnel as per the orders issued by the Central Government. The respondents were directed to disburse pension (service element) to the petitioner therein at the rate of Rs.375/- per month and the arrears due were ordered to be quantified and disbursed within three months from the date of receipt of a copy of that judgment. The judgment in Amarjit Singh's case (supra) was challenged by the respondents in the Hon'ble Supreme Court by way of filing Special Leave Petition No.7400 of 1997, which was dismissed on September 22, 1997, upholding the judgment of the Division Bench of this Court. For the aforesaid reasons, the petitioner is held entitled to be paid service element of pension as per the rates fixed by the Central Government from time to time. He pension will be calculated/fixed at the relevant rates from the date it was discontinued i.e December 15, 1971. However, arrears of pension, so calculated, shall be restricted to three years and two months preceding the filing of this writ petition. The respondents are directed to disburse the arrears to the petitioner within three months from the date of receipt of a copy of this order. In case the arrears are not disbursed within the -6- Civil Writ Petition No.6083 of 2006. said period, the entire arrears will carry interest at the rate of nine per cent per annum from the date of expiry of three months till the date of payment. This writ petition is allowed in the above terms with no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 11, 2008. ak