IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 1460 of 2007(W) ---------------------------------------- PETITIONER(S): ----------------------- V.RAVEENDRAN, VARIKKARA HOUSE, KARIVELLUR P.O., VIA. PAYYANNUR, KANNUR DISTRICT, KERALA STATE. (FORMERLY WORKING AS 137121/H.SPR., DEMOB CELL, DEPOT COY, MADRAS ENGR.GP & CENTRE, BANGALORE-42). BY ADV. MR.KALEESWARAM RAJ RESPONDENT(S): --------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO MINISTRY OF DEFENCE, NEW DELHI. 2. CHIEF OF THE ARMY STAFF, ARMY HEAD QUARTERS, NEW DELHI-11. 3. THE COMMANDANT, MEG AND CENTRE, BANGALORE-42, PIN-560 042. R1 BY ADV. SMT.M.LALITHA NAIR, CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1460/2007 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CAMPAIGNED CERTIFICATE OF DISCHARGE AND RECOMMENDATION FOR CIVIL EMPLOYMENT ISSUED BY THE COMPETENT AUTHORITY TO THE PETITIONER. EXT.P2: COPY OF THE RELEVANT PAGES OF DAILY ORDERS PART II ISSUED BY THE MAJOR, OIC DEMOB CELL TO THE PETITIONER. EXT.P3: COPY OF THE ORDER NO.1371217/PEN(S)/DCRG/3 DTD. 9/6/1994. EXT.P4: COPY OF THE EXPENDITURE SLIP REGARDING THE DCRG PAID TO THE PETITIONER. EXT.P5: COPY OF THE ORDER WITH NO.1365/STATS 1/192 DTD.22/10/1993. EXT.P6: COPY OF ORDER WITH NO.39382/LOAS/E/IN/C/SECTT/2179/E/A DTD. 7/03/1995. EXT.P7: COPY OF ORDER NO.1371217/PEN(D)/48 DTD.18/02/1995. EXT.P8: COPY OF THE ORDER NO.1371217/PEN(D) 46 DTD. 20/01/1995. EXT.P9: COPY OF THE ORDER NO.1371217/PEN(D) DTD. 14/06/1996. EXT.P10: COPY OF THE CERTIFICATE ISSUED BY MILITARY HOSPITAL TO THE PETITIONER. EXT.P11: COPY OF THE DISCHARGE SLIP WITH NO.679/7/93 DTD.1/8/1993. EXT.P12: COPY OF THE EMPLOYMENT CERTIFICATE DTD. 30/10/1993 ISSUED BY THE PRESIDENT OF THE MEDICAL BOARD TO THE PETITIONER. EXT.P13: COPY OF THE MEDICAL BOARD PROCEEDINGS OF SEPTEMBER 1993 ISSUED BY THE MEDICAL BOARD TO THE PETITIONER. EXT.P14: COPY OF THE REPRESENTATION DTD. 6/05/1995 FILED BY THE PETITIONER TO THE HON'BLE PRESIDENT OF INDIA. EXT.P15: COPY OF THE REPRESENTATION DTD. 13/01/1996 BEFORE THE 1ST RESPONDENT. Kss ...2/- ...2..... WPC.NO.1460/2007 W EXT.P16: COPY OF THE JUDGMENT DTD. 8/09/2005 IN O.P.NO.15805/2001. EXT.P17: COPY OF THE REPRESENTATION DTD. 26/11/2005 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P18: COPY OF THE ORDER DTD. 28/08/2006 ISSUED BY THE 1ST RESPONDENT. EXT.P19: COPY OF SECTIONS 15 AND 25A OF ARMY PENSION REGULATIONS 1961. EXT.P20: COPY OF SECTION 48(A) AND REGULATIONS 48A IN PENSION REGULATIONS 1961. EXT.P21: COPY OF SECTION 60(A) OF PENSION REGULATIONS. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF RULE 132 OF PENSION REGULATIONS FOR THE ARMY PART – I (1961). EXT.R3(B): COPY OF RULE 173 OF PENSION REGULATIONS FOR THE ARMY PART I (1961). EXT.R3(C): COPY OF REPRESENTATION DD. 14 NOV.2005 FROM THE PETITIONER. EXT.R3(D): COPY OF LETTER DTD. 18 AUG.2006 ALONG WITH ITS ENCLOSURE FROM INTEGRATED HQ OF MoD (ARMY)/E1A. /TRUE COPY/ P.S.TO JUDGE Kss P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 1460 OF 2007 ......................................................................... Dated this the 19th February , 2009 J U D G M E N T Ext. P18 order passed in furtherance to Ext. P16 judgment passed by this court and Exts.P5 to P9 proceedings of the departmental authorities are under challenge in this Writ Petition. 2. The petitioner joined duty as a 'Sepoy' in the Indian Army on 07.03.1980 and after acquiring several promotions he was discharged from the service on 30.10.1993 vide Ext.P1 discharge certificate stating that his service was no longer required. A series of correspondence followed claiming disability pension, particularly since Ext.P1 discharge certificate revealed some disability. It is pointed out that even though the reasons for relief/discharge, shown under clause 9 of Ext.P1, is with reference to Rule 13(3)III (v), holding that the 'service was no longer required', it has also been stated under clause 24 as to the details of battle wounds, disability with percentage etc., that W.P.(C) No. 1460 OF 2007 2 it was on “medical category” which endorsement was pressed into service for claiming disability pension. 3. The request of the petitioner for granting pension was turned down vide proceedings produced as Exts.P5 to P9 stating that the petitioner was discharged under Rule 13(3) item III (v) of Army Rules 1954 as 'services no longer required'. It was further stated that since the discharge was not on medical ground and further, since the petitioner did not satisfy the minimum requirement of 15 years' of service, he was not entitled to get any pension which in turn was subjected to challenge by the petitioner by filing O.P.No.15805 of 2001. 4. After considering the relative merits and demerits, it was observed by this court in Ext. P16 verdict that Ext.R3(d) produced therein revealed that the discharge was 'not due to disability'. It was further observed that, in so far as the discharge was not due to disability, the petitioner was not entitled to have disability pension. The above finding and declaration, admittedly having not been subjected to challenge, has become final. W.P.(C) No. 1460 OF 2007 3 5. With regard to the further contention of the petitioner referring to the claim for granting at least 'special pension'/'special disability pension', on the basis of Regulation 167/186 of the Pension Regulations, this Court observed that the matter had been considered so far only at the level of Army Officers and hence it was directed to be considered by the first respondent/Government in view of statutory remedy by way of appeal before the Government, as pointed out by the Assistant Solicitor General of India. Accordingly, the said O.P. was disposed of vide Ext.P16 judgment observing that, in the event of the petitioner approaching the first respondent-Government by way of an appropriate representation, the same would be considered by the first respondent in accordance with law and appropriate action thereof would be taken within the time specified therein. 6. The case of the petitioner is that in furtherance to the direction contained in Ext.P16 judgment, Ext. P17 representation was filed before the Government, but the same has been rejected vide Ext.P18 without considering the specific claim of the petitioner W.P.(C) No. 1460 OF 2007 4 for grant of “special pension” as directed to be considered vide Ext. P16 judgment, which hence is under challenge in this Writ Petition. 7. The learned counsel appearing for the petitioner submits that there is gross miscarriage of justice, in so far as the first respondent did not pay any heed to the mandate in Ext.P16 judgment and the same has not been considered in the right spirit or perspective; in so far as the claim of the petitioner for “special pension” has not been adverted to, while passing Ext.P18 order. It is very much pertinent to note the circumstances under which Ext.P16 judgment was passed. On declaration of eligibility of the petitioner to have disability pension in the negative, it was submitted that the petitioner might be given at least “special pension” invoking regulation 167/Rule 186 of the Pension Regulations. It was also pointed out that the matter had till then been considered only by Army officers and that it required consideration on a higher level. The availability of statutory remedy before the Government was also projected from the part of the first respondent as well, who W.P.(C) No. 1460 OF 2007 5 made appearance through the Assistant Solicitor General. It was in the said circumstances that this court gave a positive direction to the first respondent/Government to consider the said claim on filing appropriate representation in this regard. 8. Viewed in the above background, it is very much essential to examine whether the petitioner has approached the first respondent/Government with any such claim for “special pension” as projected in Ext.P16 judgment. Ext.P17 is the representation preferred by the petitioner pursuant to Ext. P16 judgment, which however does not mention anything as to the so called “special pension/special disability pension”, but for reiterating his claim for “service pension/disability pension”- which has already been turned down by the department and upheld by this court vide Ext. P16. So also, the petitioner has not substantiated the existence of any provisions, regulations or rules enabling him to claim the so called “Special Pension/Special Disability Pension”. In other words, the respondents who were directed to consider only the claim as put forth in Ext. P17 representation, which exercise has been promptly pursued by W.P.(C) No. 1460 OF 2007 6 passing Ext.P18 holding that the petitioner was not entitled to get any service/disability pension for the reasons stated therein. This being the position, the petitioner cannot be heard to say that the respondent has not considered the claim for “special pension/special disability pension”. 9. Incidentally it is also noted by this court that the specific direction given in Ext. P16 judgment was to the first respondent/Government to consider and pass appropriate order on the representation particularly; after observing that the matter hitherto was considered only at the level of Army officers and that it required to be considered at a higher level by the Union Government. But, Ext. P18 obviously has been passed by some authority of the Army itself and not by the Government. Still, the petitioner is not seen aggrieved and no complaint is made in this regard. But it has also to be taken note of, that the representation stated as preferred by the petitioner as referred to in Ext. P18 order is of “14.11.2005”, which shows that it, definitely, is not Ext. P17 representation, stated as preferred by the petitioner before the first W.P.(C) No. 1460 OF 2007 7 respondent/Government, wherein, the date has been manually corrected as 26.11.2005. This being the position, absolutely no blame can be put on the Army authorities for having issued Ext.P18 order which was rather invited by the petitioner himself by filing another representation dated “14.11.2005” of course, with reference to Ext. P16 judgment. 10. Respondent Nos. 1 to 3 have filed a counter affidavit explaining the sequence of events as to the discharge of the petitioner, invoking the provisions under Rule 13(3) item III (v) of Army Rules 1954 as ' service was no longer required'. It has been asserted that the petitioner was never discharged due to any medical disability and that the alleged disease certified by the medical board “( ACUTE APPENDICITES (OPTD) (540)” was not attributable to the military service nor had it been aggravated in any manner because of such military service and hence that the petitioner was not entitled to get any disability pension. It has also been asserted in paragraph No.5 of the counter affidavit that there is no provision for granting “Special Pension/special disability pension” as alleged by the petitioner. W.P.(C) No. 1460 OF 2007 8 The assertion as to the non-existence of any provision for granting 'Special Pension/Special disability pension', has not been rebutted by the petitioner by filing any reply affidavit. In the above circumstances, there is absolutely no merit, warranting interference by this court. The Writ Petition is dismissed accordingly. No costs. P.R. RAMACHANDRA MENON, JUDGE. lk