IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.3489 of 2008 Date of Decision: February 04, 2009 Ex-Sepoy Dhani Ram .....PETITIONER(S) VERSUS Union of India & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Surinder Sheoran, Advocate, for the petitioner. Ms. Geeta Singhwal, 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 18.4.2007 (Annexure P-1) whereby claim of the petitioner for grant of disability pension w.e.f. 24.6.1988 has been rejected. The reason given for rejecting the claim to disability pension is that the disability degree of the petitioner had fallen to les than 20% i.e. 15%-19%. The facts available on the record, however, make it evident that the petitioner was CWP No.3489 of 2008 [2] granted disability pension from 10.12.1966 which was declared as attributable to military service till 23.6.1988. On re-survey by Medical Board, disability pension was dis-allowed vide the impugned order. Learned counsel for the petitioner states that the case is squarely covered by 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), wherein this issue has been considered in the context of Regulations 173 and 186 of the Pension Regulations for the Army 1961. The petitioner, under the circumstances, would be entitled to service element of pension. For reference, the following may be noticed from the judgment rendered in Chandgi Ram’s case (supra):- “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 CWP No.3489 of 2008 [3] 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.” 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 CWP No.3489 of 2008 [4] 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 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. 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.” Learned counsel for the respondents, Union of India, has not been able to distinguish the judgment. It stands accepted that the case of the petitioner is covered by judgment rendered in Chandgi Ram’s case (supra). In view of the above, Order dated 18.4.2007 (Annexure P-1) is hereby quashed. This petition is allowed in terms of judgment dated 28.2.2008 rendered 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 CWP No.3489 of 2008 [5] 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 till the date of payment. (AJAI LAMBA) February 04, 2009 JUDGE avin