IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.18938 of 2008 Date of Decision: February 04, 2009 Ex-Rect. Amar Singh .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. S.S. Rana, Advocate, for the petitioner. Ms. Ranjana Shahi, Central Government Standing Counsel, for the respondents. . . . AJAI LAMBA, J (Oral) This civil writ petition filed under Article 226/227 of the Constitution of India prays for issuance of a writ in the nature of certiorari quashing order dated 27.9.2007 (Annexure P-4) vide which the respondents have discontinued the disability pension of the petitioner w.e.f. 20.1.1973, and further for issuance of writ in the nature of mandamus directing the respondents to continue to pay the disability as well as service element of pension with effect from the date of its discontinuance. It has been brought out that the CWP No.18938 of 2008 [2] petitioner was recruited in the Army as a Sepoy during emergency period in 1967. On 13.4.1968, the petitioner successfully completed his training of six months. Again he was sent for further training and during the exercises, he was required to undertake in the training period, he suffered a fracture of the leg. The Medical Board assessed his disability at 20%. Accordingly, he was boarded out of military service and was also granted disability pension of Rs.26/- per month for the period from 13.4.1968 to 1.3.1970 and thereafter further upto 28.2.1973. It seems that on 6.10.1972, re-survey of medical condition of the petitioner was held at Military Hospital, Jalandhar Cantt. Disability of the petitioner was assessed at less than 20%. Respondents therefore discontinued the pension w.e.f. 28.2.1973 vide letter dated 20.1.1973. The petitioner made representations for grant of disability pension. The respondents, vide Annexure P-4, replied that as a result of re-survey, the Medical Board had re-assessed the disability of the petitioner to the extent of less than 20% and therefore, the petitioner is not entitled for disability pension. Learned counsel for the petitioner states that case of the petitioner is squarely covered by judgment dated 17.5.1995 rendered by this Court in Civil Writ Petition No.11519 of 1993 CWP No.18938 of 2008 [3] (Gurnam Singh vs. Union of India), that has been placed on record as Annexure P-6 and judgment dated 28.2.2008 rendered by Division Bench of this Court in Civil Writ Petition No.8788 of 2007 (Chandgi Ram vs. Union of India & Others). Faced with these contentions, learned counsel for the respondents, Union of India, has not been able to dispute the fact that case of the petitioner is covered by the judgments referred to above. In Gurnam Singh’s case (supra), the following has been held:- “4. From the documents which have been placed on record, it is clear that the petitioner was discharged from the military service on the ground of low medical category. He was given medical category “EEE” at the time of discharge from the service. Annexure P-2 is conclusive proof of the fact that the petitioner was given disability pension. This disability pension must have been given to the petitioner on fulfilment of the conditions enumerated in Regulations 173 of the Pension Regulations. By virtue of order (Annexure P-5) the Government of India took a policy decision to extend the benefit of the disability pension to the Army personnel below the officer rank who were granted disability pension at one time but whose disability fell below 20 per cent at a later stag. Annexure P-6 contains similar instructions regarding the grant of disability pension of those whose disability falls below 20 per cent. However, the instructions contained in Annexure P-6 have been made applicable only to those who were on the effective strength of the Army on 1.1.1973. If the petitioner has been discharged from the service after 1.1.1973, he would have become entitled to the grant of disability pension not withstanding the fact that his disability was subsequently reduced below 20 per cent. Therefore, now it has to be seen whether the restricted application of the instructions contained in Annexure P-6 has got any rationality. There can be no manner of doubt that the petitioner was in receipt of the disability pension as on 1.1.1973 and he continued to draw the disability pension upto 20.8.1974. Some of the Army personnel who were discharged from service after 1.1.1973 and who were given disability pension after 1.1.1973 were placed at par with the petitioner. With reference to the object of giving the benefit of disability CWP No.18938 of 2008 [4] pension to those whose disability fell below 20 per cent. The petitioner and others who were discharged after 1.1.1973 constituted one class. With reference to the object aforementioned, there cold be no rationales of confining the benefit of the disability pension only to those who were discharged after 1.1.1973. The entire object of extending the benefit of the disability pension even after the reduction of the degree of disability will be frustrated in the cases of the persons like the petitioner, who was actually in receipt of the disability pension on 1.1.1973 but whose disability fell below 20 per cent after 1.1.1973 are denied benefit of disability pension. To me, fixation of the date as 1.1.1973 has absolutely no nexus with the object of granting the disability pension to those who were initially having the disability of 20 per cent or more but whose degree of disability reduced at a later point of time. To this extent the provisions contained in Annexure P-6 are liable to be declared as unconstitutional. 5. In the result, the writ petition is allowed.” In Chandgi Ram’s case (supra), the following has been held:- “In the present context, reference to the relevant provisions of Regulations 173 and 186 of the Pension Regulations for the Army, 1961 (for shot, „the Pension Regulations) is necessary. Pension Regulation 173 reads as under:- “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 a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 per cent or above. Pension Regulation 186 is as follows:- “186(1) An individual who is invalidated out of service with a disability attributable to or aggravated by service but assessed at below 20 per cent shall be entitled to service element only. (2) An individual who was initially granted disability pension but whose disability is reassessed at below 20% subsequently shall cease to draw disability element of disability pension from the date it falls below 20 per cent. Her shall, however, continue to draw the service element of disability pension.” CWP No.18938 of 2008 [5] A perusal of Pension Regulation 173 reveals that disability pension, consisting of service element and disability element, is payable to an Army personnel who is invalidated from service on account of disability which is attributable to or aggravated by military service and is assessed at 20 per cent or above. Pension Regulation 186(1) states that an Army personnel who is invalidated out of service with a disability assessed at below 20 per cent shall be entitled to service element only. The present controversy is covered under Pension Regulation 186(2) which clearly states that an Army personnel, who was initially granted disability pension but whose disability was re-assessed at below 20 per cent subsequently, shall cease to draw disability element of pension from the date it falls below 20 per cent. However, he shall continue to draw the service element of disability pension. On August 21, 1969, when the petitioner‟s disability was assessed below 20 per cent, he ceased to have any right to get disability element of pension, but he continued to be entitled to get service element of pension. As stated above, the disability element of pension was Rs.20/- per month and the service element of pension paid to the petitioner was Rs.5/- per month. A Division Bench of this Court in a judgment rendered in the case of Amarjit Singh v. Union of India and others (Civil Writ Petition No.12311 of 1996 decided on February 27, 1997), where in similar circumstances, the pensioner therein was denied service element of pension of Rs.13/- and 5 Annas, from March 05, 1986, 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. It is relevant to mention here that 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. We are also of the view that once the service element of pension was granted to the petitioner, the same cannot be denied for the remaining period by asserting that he lacks ten years of qualifying service in view of the clearcut provisions of Pension Regulation 186(2), reproduced above. Resultantly, the petitioner is held entitled to be CWP No.18938 of 2008 [6] paid service element of pension as per the rates fixed by the Central Government from time to time. He (sic) pension will be calculated/fixed at the relevant rates from the date it was discontinued i.e. September 20, 1969. 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 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 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.” In view of the above, Order dated 27.9.2007 (Annexure P-4) is hereby quashed. This petition is allowed in terms of judgment dated 28.2.2008 rendered by Division Bench of this Court in Civil Writ Petition No.8788 of 2007 (Chandgi Ram vs. Union of India & Others). It is made clear that the petitioner is entitled to be paid service element of pension as per the rules framed by the Central Government, from time to time. The pension would be calculated from the date it was dis-continued. The arrears of pension, so calculated, shall however be restricted to 38 months preceding the filing of the writ petition. The respondents are directed to disburse the arrears to the petitioners within three months from the date of receipt of a copy of this order. In case, arrears are not disbursed within the stipulated period, arrears would carry interest @ 9% per annum from the date of expiry of three months CWP No.18938 of 2008 [7] till the date of payment. (AJAI LAMBA) February 04, 2009 JUDGE avin