CWP No.13689 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.13689 of 2007 DATE OF DECISION: November 6, 2008 AJIT SINGH ...PETITIONER VERSUS UNION OF INDIA & OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE RAJAN GUPTA. PRESENT: MR. RAJESH SEHGAL, ADVOCATE FOR THE PETITIONER. MR. NAVEEN CHOPRA, CENTRAL GOVT. COUNSEL FOR THE RESPONDENTS. ASHUTOSH MOHUNTA, J. The petitioner has prayed that directions be issued to the respondents to grant him the Service Element of disability from 13.2.1980 to 17.5.2006. Briefly, the facts of the case are that the petitioner was enrolled in the Army on 17.10.1963. After having been found medically fit, he was sent for training as Sepoy and after completing the training period successfully was inducted to regular Army and was allocated Trade (Infantry GD). The petitioner served in Indo-Pak 1965 War and was posted at Wagah Border, Amritsar. While on active 'OP Riddle Operation' in 1965 War, the petitioner received GSW in the Left Middle Finger as a result of which he lost 3/4th of terminal segment of Left Middle Finger. The petitioner was despatched to the Punjab Regimental Centre, Meerut Cantt. for treatment where the surgical specialist found the petitioner suffering CWP No.13689 of 2007 -2- from two disabilities, namely (i) Complete prolapse rectum (ii) GSW Left Middle Finger effect of. In view of the injuries suffered by the petitioner, he was brought before the invaliding medical board where he was found permanently medical unfit for military service and was placed in category 'EEE' Permanent. The petitioner was invalided out of Army service being war causality on 11.6.1966, after rendering 2 years and 238 days of service. After his disability the petitioner was granted disability pension consisting of both the Service Element and Disability Element in accordance with the rules of CCDA(P) Allahabad vide PPO No.D/3168/66. The award of Disability Element was from 12.6.1966 to 8.3.1968 and was extended after review of the medical board from time to time upto 12.2.1980. The petitioner was brought before Resurvey Medical Board in the year 1980 and the medical board held the disability percentage to be static as held by the earlier board and his disability was assessed to be less than 20% and consequently the disability pension of the petitioner was stopped from 13.2.1980, onwards. Not only was the disability pension stopped but even the Service Element was stopped. Counsel for the petitioner contends that the petitioner is entitled to Service Element which is payable for life. It is contended that the petitioner was invalided out of service as a battle causality and therefore, even if the disability percentage was assessed to be less than 20%, still the Service Element could not have been stopped. Learned counsel has relied on Regulation 183 read with 186 of the Pension Regulations for Army. Counsel for the petitioner has also placed reliance on the judgement (Annexures P-5) Ex-Sigmn Amarjit Singh vs. Union of India and others, CWP No.13689 of 2007 -3- CWP No.12311 of 1996 wherein it has been held that Service Element for pension is to continue till death of the ex-serviceman. Reliance has also been placed on a judgement of this Court (Annexure P-6) CWP No.2611 of 2003, Ex-Sep. Dalip Singh Vs. Union of India and others, wherein it has been held that since Service Element of pension is to continue till the death of ex-serviceman, the petitioner is entitled to be paid the minimum Service Element of pension from the date he was found entitled to get the disability Element of pension. Counsel for the petitioner has also submitted that the Appellate/Review Medical Board has ordered that disability pension consisting of both the Elements be released w.e.f. 18.5.2006. It is contended that there is no reason to withhold the Service Element from 12.2.1980 to 18.5.2006. Reply has been filed on behalf of the respondents wherein it has been averred that as the petitioner has served only for 2 years and 238 days and the fact that the petitioner's disability was assessed to be less than 20%, hence he is not entitled to any Service Element of disability pension. It has further been averred that the petitioner requested for review medical board which was held on 18.05.2006, at Army Hospital (R&R). The Review Medical Board assessed the disability of the petitioner to be 20% for life and accordingly the petitioner was granted disability pension at the rate of 310 per month w.e.f. 18.05.2006 for life. We have heard the counsel for the parties at length. A perusal of Regulation 186(1)(2) of the Pension Regulations for Army, 1961 (Part I and II) makes it abundantly clear that the petitioner is entitled for payment of Service Element of pension which was rightly paid CWP No.13689 of 2007 -4- to him right from 11.6.1966 upto 12.2.1980. Although the disability of the petitioner was assessed to be less than 20% and the same was discontinued as per provisions of Regulation 173, but the Service Element of pension after 12.2.1980, could not have been discontinued. Reliance in this regard is placed on the case of Amarjit Singh's case and Dalip Singh's case (supra). On the basis of the aforementioned judgements, it is clear that even if disability of a battle causality soldier is reduced to less than 20% resulting into discontinuation of Disability Element of pension, but the Service Element cannot be stopped. Once it has been found that invaliding out of service was attributable to military service, then a solider would be entitled for the grant of Service Element of life, even if the disability is assessed to be less than 20% or lacks 10 years of qualifying service. In view of the above, the case of the petitioner is squarely covered by the judgements (Annexures P-5 & P-6) and the same is allowed. Accordingly, the petitioner is held entitled to be paid Service Element of pension as per rates fixed by the Central Government from time to time from the date it was discontinued, i.e. from 12.2.1980 upto 18.5.2006. The respondents shall calculate the arrears of the petitioner till date and disburse the same to him within three months from the date of receipt of certified copy of this judgement. The respondents are further directed to regularly pay the Service Element of disability pension to the petitioner every month without any break for the rest of his life. (ASHUTOSH MOHUNTA) JUDGE November 6, 2008 (RAJAN GUPTA) Gulati JUDGE