1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Ex.Hav.Kalu Singh Ranawat Vs. Union of India & Ors. S.B.CIVIL WRIT PETITION NO.3117/2005 Date of Order : : 07/11/2008 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Mr.V.S.Sankhala, for the petitioner. Mr.Ravi Bhansali, for the respondents. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks direction to the respondents to grant him disability pension from the date of his retirement as per the rules and the consequential benefits as also seeks quashing of the order Annexure-P/4 dated 8th January, 2003 and order dated 25th May , 1990 rejecting his disability pension claim. The facts and circumstances giving rise to the 2 instant writ petition are that the petitioner was recruited/ enrolled in Indian Army on 21st May, 1973 as a Sepoy. The petitioner has rendered 16 years, 8 months and 11 days satisfactory services. At the time of his recruitment/ enrollment, he was underwent a thorough medical check up by the Army Recruiting Authority including Army Medical Board and was found medically fit in all respect. During the service with Army, the petitioner served at various places with different environment in peace and field areas. He passed all the courses and examinations conducted by the respondent Army Authority for the promotion and also underwent various trainings and field exercise. He remained under stress and strain of military service during performing of service at various locations where his unit was located. While he was serving at 6004(I) Armd. Workshop, Jodhpur, he was medically examined and placed under medical category CEE Permanent due to his disability IHD by the Military Hospital, Jodhpur, however, the Military Hospital Authority recommend- ed 30% disability pension. The petitioner was invalided out of service on medical ground under Rule 13(iii)(v) of Army Rules, 1954 (for short “the Rules of 1954” hereinafter). Since the petitioner has completed minimum qualifying years for entitling him service pension, he was granted service pension, 3 however, the respondents denied the disability pension. Hence, this writ petition. A reply to the writ petition as also an additional affidavit has been filed by the respondents. In para 5 of the additional affidavit, the respondents came with a case that after the petitioner having been placed in lower medical category, he was offered shelter appointment suitable to his medical category but he shown his unwillingness to serve in shelter appointment, therefore, he was discharged from Army under Rule 13(iii)(v) of the Rules of 1954, It was denied that the petitioner was invalided out of the service. According to the respondents, the petitioner was discharged from the service on being not willing to serve in shelter appointment. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the release of the petitioner from Army is under Rule 13(III)(v) of the Rules of 1954 and under this Rule, when a person is released from Army service being found medically unfit and placed in a lower medical category i.e. “C“ permanently, is entitled for disability pension. The petitioner was medically examined by the Army Authority i.e. Medical Board of Military Hospital, Jodhpur who recommended discharge of the petitioner with 30% disability pension and 4 therefore, according to learned counsel for the petitioner, instead of service pension, the petitioner is entitled for the disability pension to the extent of disability suffered by him in service i.e. 30%. Learned counsel further submits that the provisions of Regulation 173-A of the Pension Regulations for the Army, 1961 (for short “the Pension Regulations of 1961” hereinafter) entitles the petitioner for grant of disability pension. The Regulation 173-A of the Pension Regulations of 1961 reads as under:- “173-A. Individuals who are placed in a lower medical category (other than 'E') permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.” Learned counsel has relied on the decision of this Court in Pratap Singh Vs. Union of India & Ors., 2005(8) RDD 3161 (Raj.) and two decisions of Division Bench of Punjab and 5 Haryana High Court in Darshan Singh Vs. Union of India & Ors., 2008(3) SCT 293 and in Naik Amrik Singh Vs. Union of India & Ors., 2008(2) SCT 432. Learned counsel appearing for the respondent- Union of India submits that the petitioner is not entitled for the disability pension. The petitioner had rendered minimum qualifying service entitling him for normal pension and he was granted pension alongwith all other terminal benefits. Learned counsel further submits that the petitioner was offered shelter appointment suitable to his medical category but he was unwilling to serve in shelter appointment and therefore, his release from the Army is at his own request. According to learned counsel for the respondents, the respondents were justified in declining the disability pension to the petitioner. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. The Regulation 173-A of the Pension Regulations of 1961 clearly provides that individuals who are placed in a lower medical category other than “E” permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment. In the instant case, the petitioner 's 6 case falls in the category of that he was unwilling to accept the alternative employment as has been stated by the respondents in additional affidavit and therefore, the petitioner deemed to have been invalided from service. Along with the additional affidavit, the respondents placed on record the report of Medical Board. The Medical Board was held on 23rd August, 1989 in respect of the petitioner at Military Hospital, Jodhpur and the Medical Board assessed the disability pension to the extent of 30%. This Court in Pratap Singh Vs. Union of India & Ors. (supra) held that Regulation 173 makes it precise that a disability pension consisting of service element and disability element irrespective or category be granted only if disease is attributable to or aggravated by army service and is assessed at 20% or over. But, under Regulation 173-A where individuals are placed in low medical category (other than category “E”) permanently and are discharged from service because there was no employment available in their own trade/category which is comparable to their low medical category or/and even an individual is unwilling to accept alternative employment, he is entitled for consideration of disability pension claim. In that case, the petitioner therein was discharged under Rule 13(III) (v) of the Rules of 1954 7 and at the time of discharge, he rendered 7 years 2 months 14 days in army service and the minimum qualifying service for entitlement/grant of the pensionary benefit is 15 years. However, in that case, since the petitioner therein was discharged on the ground of having been placed permanently under low category other than category “E”, therefore, this Court considering the provisions of Regulation 173-A of the Pension Regulations of 1961 held the petitioner therein entitled for the disability pension. This Court in para 15 of the judgment observed as under:- “15. Case of the petitioner is covered not under Regulation 173 but under Regulation 173-A of Army Pension Regulations, and he being placed in low medical category CEE (P) and was discharged from service for the reason that other alternative employment in existing trade/category due to his low medical category, is not available, and besides it was not the case where he was not willing to accept alternative employment and for such individuals, both the conditions attributed (a) disability is either attributable to or aggravated by military service, and (b) it is assessed at 20% or over, are not applicable for grant of disability pension under Regulation 173-A of Army Pension Regulations to such individuals.” 8 This Court in the aforesaid judgment further observed that it has always to be kept in mind and remembered that person does not acquire disability by choice and individual who acquires disability must be protected by deserving sympathetic treatment and not for himself but for his family also; and the protection has to be provided which may serve purpose and object for which disability pension is being extended to individuals. Beneficial provision in this regard has been made by respondents providing disability pension to such pensioners/individuals under Army Pension Regulations. For grant of disability pension object behind it is that those who served defence service and because of disability, when one becomes incapable for army service and alternative employment in his trade/category suitable to his nature of duty is not available and the decision is taken for his discharge from service, individual must be provided with disability pension, and being a beneficial provision by this mode, means can be provided for survived and to maintain his family by way of grant of disability pension. In Darshan Singh Vs. Union of India & Ors. (supra), a Division Bench of Punjab & Haryana High Court while considering the provisions of Army Pension Regulations, 1961 and Regulation 173-A held that when the Army 9 personnel is placed in lower medical category permanently and is unwilling to accept the alternative employment or have been retained in alternative employment, is discharged before completion of his engagement, shall be deemed to be invalided from service. In that case, the petitioner therein was invalided out of service at his own request without accepting alternate appointment being placed in category SIHIA2P1E1 add being declared 'fit to be released from service in low medical category' by the Release Medical Board with 20% disability, otherwise entitled to disability, cannot be denied that benefit merely on the ground that he was discharged on his own request for the same reasons and refused to accept the alternate appointment. Similar view was taken by Division Bench of Punjab & Haryana High Court in Naik Amrik Singh Vs. Union of India & Ors. holding therein that an Army personnel who suffers injury resulting in 20% or more disability attributable to service, even if released on compassionate ground on account of such disability, he is deemed to be discharged and will be entitled to disability pension in addition to his service element pension. Once he is allowed release on that ground, merely because he had to seek release at his own due to his inability to deprived of the benefit of Regulation 173 to which 10 he is statutorily entitled to. In the instant case, as the case set up by the respondents by way of an additional affidavit, it is clear that the petitioner rendered 16 years and 8 months and 11 days service in Army. At the time of his enrollment/recruitment with the Army, the petitioner was medically examined by Army Medical Board and was found medically fit in all respect. During the service with Army, the petitioner served at various place with different environment more particularly in field areas. He remained under stress and strain of military service. While he was serving at 6004(I) Armd. Workshop, Jodhpur, he was medically examined by the Medical Board of the Army at Military Hospital, Jodhpur on 23rd August, 1989 and in the opinion of the Medical Board, he suffered 30% disability. Thereafter, as per additional affidavit, the petitioner was placed in lower medical category and was offered shelter appointment suitable to his medical category but he shown his unwillingness to serve in shelter appointment and, therefore, he was discharged from Army under Rule 13(iii)(v) of the Rules of 1954 and as such, deemed to have been invalided from service. In these circumstances, in my view, the petitioner is entitled for disability pension on the basis of 30% disability as opined by the Army Medical Board. 11 Consequently, the writ petition is allowed. The order impugned dated 8th January, 2003 and dated 25th May, 1990 are quashed and the respondents are directed to release the disability pension in favour of the petitioner with all consequential benefits in terms of the Regulation 173-A of the Pension Regulations of 1961 with effect from the date he became entitled for such pension, i.e. from the date he was placed in a low medical category and discharged from service. Arrears of disability pension after its computation in compliance of aforesaid direction be paid to the petitioner within four months from producing the certified copy of this order. No costs. (H.R.PANWAR), J. NK