IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.3.2009 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.12954 of 1999 S.Neelakandapillai .. Petitioner -vs- 1.Union of India, rep.by the Secretary, Ministry of Defence, (Pension Grievance Cell), New Delhi. 2.The Record Officer, Madras Regiment Abhilekh Karyalaya Records, The Madras Regiment, Wellington (Nilgiris)-643 241. 3.The Director, Ex-servicemen Board, Teynampet, Chennai-18. .. Respondents (R3 impleaded as per order dt.02.9.2003 in WMP.1586 of 2000) PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to the order of the second respondent made in Ref.No.03195/EP/Gen/63/PG3, dated 11.5.1999 and quash the same and consequently direct the respondents to consider the representation of the petitioner dated 06.6.1999 addressed to the first respondent on merits. For petitioner : Mr.L.Chandrakumar For respondents : Mr.C.Kanagaraj ***** O R D E R The petitioner seeks to challenge the order of the second respondent dated 11.5.1999 wherein and by which the petitioner was denied service pension as well as disability pension. In respect of https://hcservices.ecourts.gov.in/hcservices/ the service pension, it was stated that he got enrolled in the Army on 02.4.1948 (Travancore State Armed Force). Subsequently, the said Force got merged with the Madras Regiment of the Indian Army. The petitioner was discharged from service on 01.2.1955 and altogether he has put in 6 years and 307 days qualifying service. Since a minimum of 15 years qualifying service is required to earn service pension, he was informed that he was not eligible for any service pension. By the same impugned order, the petitioner was also informed that he was also not eligible for any disability pension. 2. It is the case of the petitioner that while he was in the Hyderabad Unit of the Indian Army, his unit was sent to Kashmir. But he could not join that unit due to an ailment in his left eye. He was treated in the Army hospital as well as in the Navy hospital at Mumbai. He was operated upon and in the course of the treatment he lost his left eyesight. Though the petitioner claimed the disability pension, the same was denied by the respondents. After sending representations, the petitioner filed the writ petition claiming for a direction to the respondents to consider his representation dated 06.6.1999. 3. He placed reliance upon Rule 173 of the Army Rules, which provides primary conditions for grant of disability pension. Rule 173 reads as follows:- ''173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the rules in Appendix II." 4. A counter affidavit dated 29.9.1999 was filed by respondents 1 and 2. In paragraphs 6 and 7, the following averments have been made:- ''Para 6. ... it is agreed to partially, that the service/medical documents have been destroyed after the expiry of retention period of 25 years. However, as per the available records, the petitioner was invalided out from service due to ''SUB ACUTE CONGESTIVE GLANCOMA (LT), this was regarded neither attributable to nor aggravated by military service and thus no disability pension was granted to him. Para 7. ... it is submitted that the petitioner had submitted his disability pension claim, after his discharge from service, to CCDA(P), Allahabad and the same had been rejected vide letter No.G3/CA/55/02082/III dated 21.1.1956 stating that the disability on account of https://hcservices.ecourts.gov.in/hcservices/ which he was discharged from service was neither attributable to nor aggravated by military service and hence he was not entitled to any disability pension". (Emphasis Added) 5. Mr.L.Chandrakumar, learned counsel for the petitioner placed reliance upon the judgment of the Supreme Court in Union of India and another -vs- Bashirbhai R.Khiliji reported in (2007) 6 SCC 16. He relied upon the passages found in paragraphs 9 and 10, which may be usefully extracted below:- Para 9. ..... ''Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word “qualifying service” has been defined in Rule 3(1) (q) of the Rules which reads as under: “3. (1)(q) ‘qualifying service’ means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;” Para 10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him." 6. He also further submitted that the Supreme Court in that particular case directed the authorities to grant a sum of Rs.1 lakh as ex gratia, as in that case the respondent was discharged on account of impairment of both of his ears and he has become invalid to serve anywhere. But in the present case the petitioner had lost only his left eye and it was contended by the respondents that it was neither aggravated nor attributable to military service. 7. It is necessary in this context to refer to certain other decisions of the Supreme Court regarding grant of disability pension on account of military service. In the case of R.Paramasivam vs. https://hcservices.ecourts.gov.in/hcservices/ Union and India in W.A.NO.3143 of 2004 dated 27.06.2005 in paragraphs 3 and 4, the Division Bench had observed as follows:- Para 3. ''This Court cannot sit as a Court of appeal over administrative decisions. The scope of judicial review of administrative decisions is very limited. It is true that while prior to 1947 the Courts would not undertake judicial review of administrative decisions, but after the historical decision of the House ofLords in the Wednesbury case (Associated Provincial Picture Houses Ltd., vs. Wednesbury Corporation, (1947) 2 All. L.R.680) the law was slightly changes and it was held that there can be judicial review of administrative decisions but that can only be done only on certain very limited grounds, vide State of N.C.T. of Delhi vs.Sanjeev, AIR 2005 SC 2080. The Court cannot ordinarily sit in appeal over the decision of the administrator, but can only look into the manner of reaching the said decision. In the present case, we cannot question the decision of the Medical Board and we cannot sit in appeal over the same". Para 4. ''Our view get support from the decision of the Supreme Court in Union of India vs. Baljit Singh, (1996) 11 SCC 315 = 1997 (1) SLR 98 and the decision of the Punjab and Haryana High Court in Gurdip Singh (retd.) Subedar (Rony Lt) vs. Union of India, 1997 (5) SLR 341.". 8. In Union of India vs. Baljit Singh reported in 1996 (11) SCC 315, the Supreme Court had analysed Rule 173 of the Pension Regulations for the Army. It was observed that where the Medical Board found that there was absence of proof of the injury/illness having been sustained due to military service or being attributable thereto, the High Court's direction to the Government to pay disability pension was not correct. It is necessary to refer to the following passage found in paragraph 6 of the order:- Para 6 ''....... It is seen that various criteria have been prescribed in the guidelines under the Rules as to when the disease or injury is attributable to the military service. It is seen that under Rule 173 disability pension would be computed only when disability has occurred due to wound, injury or disease which is attributable to military service or existed before or arose during military service and has been and remains aggravated during the military service. If these conditions are satisfied, necessarily the incumbent is entitled to https://hcservices.ecourts.gov.in/hcservices/ the disability pension. This is made ample clear from clause (a) to (d)of para 7 which contemplated that in respect of a disease the Rules enumerated thereunder required to be observed. Clause © provides that if a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service. Unless these conditions satisfied, it cannot be said that the sustenance of injury per se is on account of military service. In view of the report of the Medical Board of Doctors, it is not due to military service. The conclusion may not have been satisfactorily reached that the injury though sustained while in service, it was not on account of military service. In each case, when a disability pension is sought for made a claim, it must be affirmatively established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service". 9. Once again, the Supreme Court in its latest decision quoted with approval the decision in Union of India and Others vs. Keshar Singh reported in 2007 AIR SCW 2760 in Union of India and Others vs. Surinder Singh Rathore reported in 2008 AIR SCW 2890 = 2008 (5) SCC 747. In paragraph 9 of the Judgment, it has been observed as follows:- Para 9. ''The Medical Board's opinion was clearly to the effect that the ailment suffered by the appellant was not attributable to the military service and also not aggravated due to it. Learned Single Judge and the Division Bench were not justified in holding that the same was attributable to Military service and/or was aggravated because of service. The respondent is not entitled to disability pension. However, on the facts and in the circumstances of the case payment, if any, already made to the respondent by way of disability pension, shall not be recovered". 10. The judgments rendered with reference to disability pension will also have a bearing on the question of grant of invalid pension because the terms ''aggravated" and ''attributable" are found in the Rules relating to both invalid pension and disability pension. Apart from this, in respect of invalid pension, there is also minimum service contemplated. https://hcservices.ecourts.gov.in/hcservices/ 11. Though the learned counsel insisted upon the direction given by the Supreme Court for a lumpsum payment as ordered by the Supreme Court in Bashirbhai R.Khiliji's case (cited supra), such a direction cannot be granted by this Court on two grounds. Firstly, the Supreme Court's direction is attributable to Article 142 of the Constitution which power is not available to the High Court exercising power under Article 226. Secondly, in the present case, the discharge took place in the year 1955 and the first representation was made only after 40 years and the case also came up for hearing after 50 years of such discharge. There are no records produced before this Court justifying making such claim. 12. In the light of the above, there is no case made out for interfering with the impugned orders passed by the respondents. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js To 1.The Secretary to Government of India, Ministry of Defence, (Pension Grievance Cell), New Delhi. 2.The Record Officer, Madras Regiment Abhilekh Karyalaya Records, The Madras Regiment, Wellington (Nilgiris)-643 241. 3.The Director, Ex-servicemen Board, Teynampet, Chennai-18. 1 CC To Mr.K.ChandraKumar, Advocate, SR NO.8984 W.P.No. 12954 of 1999 bv(co) pmk/25.3.2009. https://hcservices.ecourts.gov.in/hcservices/