- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ravindra Kumar vs. Union of India & Ors. S.B.CIVIL WRIT PETITION NO.709/2003 DATE OF ORDER : April 15, 2008 P R E S E N T HON'BLE JUSTICE SHRI GOPAL KRISHAN VYAS Mr.S.P.Sharma, for the petitioner. Mr.Ravi Bhansali, for the respondents. In this case, petitioner is claiming disability pension on the ground that when he was in Indian Army he met with an accident while going by service transport on 31/7/1994 and sustained injuries. Again on 4/12/1997 while he was on casual leave at his hometown, he met with an accident resulting in multiple fracture in his right leg and he was admitted in Military Hospital, Ambala and Chandimandir for treatment. According to the petitioner, he has served the Indian Army for more than 17 years and he has unblemished service record. Further, it is submitted that his unit 75 Armoured Unit was at Jodhpur and after his return from Military Hospital Pune to which he was referred by Military Hospital, Jodhpur for further treatment, therefore, final medical board was held at Military Hospital, - 2 - Jodhpur and he was medically boarded out with a recommendation for disability pension. Though the petitioner was recommended by Medical Board for disability pension but he was given only normal pension vide PPO dated 13/6/2000 and disability pension was not released by the PCDA (Pension), Allahabad. The petitioner was informed vide letter dated 22/4/2002 along with letter dated 26/7/2001 that his case for disability pension was rejected by the PCDA (Pension) vide impugned order dated 10/7/2001. Against the said order, petitioner preferred an appeal through proper channel and the said appeal was forwarded to the concerned appellate authority along with medical documents vide letter dated 1.8.2002 but petitioner received no response from the respondents. Thereafter, petitioner gave a representation on 25/10/2002 for releasing disability pension but the same was rejected. At the time of filing writ petition, the rejection order of petitioner's appeal not received by him but in reply the order of rejection of appeal was filed by the respondents as Annex.R/1 dated 22/8/2003, therefore, an application was moved by the petitioner for amending the writ petition, whereby, he has also challenged the order of appellate authority dated 22/8/2003. - 3 - The contention of petitioner is that although the respondent no.2 is vested with the right to release pension to the retired army personnel but criteria for grant of disability pension is not vested with this agency, rather the disability pension is released on the recommendations of the medical board, which in the instant case was made by the Military Hospital, Jodhpur. Further it is submitted that petitioner was discharged from Indian Army due to medical disability as he was permanently placed in medical Category CEE (P) by the Military Medical Board. In support of his contentions, learned counsel for the petitioner has relied upon the judgment of Hon’ble Apex Court reported in 1995 Supp.(3) SCC 232 (Lance Dafadar Joginder Singh vs. Union of India & Others) in which Hon’ble Apex Court has held that the appellant being in regular Army, there was no reason why he should not be treated as on duty when he was on casual leave. It is, therefore, contended that even if the petitioner was on casual leave on the date of accident in which he suffered disability, the petitioner is entitled for disability pension. The respondents in their reply submitted that the case of - 4 - petitioner was rightly considered in accordance with rules and he was not found eligible for disability pension because the committee has found that petitioner suffered disability which is fracture in right leg (Tibia Fibula (Rt.) resulting from the injury sustained when the petitioner was on casual leave at his hometown. Therefore, as per the decision of the committee, the injury was not attributable to military service as the petitioner was not on duty at the material time of sustaining the injury in terms of Rule 12 of the Entitlement Rules to Casualty Pensionary Awards, 1982. Therefore, according to the committee, petitioner was not held entitled to disability pension as per Regulation 173 of Pension Regulations for Army Part-I, 1961. According to the respondents, under Regulation 173 of Pension Regulations, disability pension can be granted to an individual, who is invalidated from service on account of a disability, which is attributable to or aggravated by military service and is assessed at 20% or more. Therefore, as per the respondents the date on which the petitioner met with an accident and suffered disability he was on casual leave at his hometown, therefore, such disability is not attributable to or aggravated by military service as such the writ petition filed by the petitioner deserves to be dismissed. - 5 - Learned counsel for the respondent in support of his contentions invited the attention of this Court towards the judgment of Hon’ble Apex Court rendered in Civil Appeal No.762/2001 (Union of India & Ors. Vs. Keshar Singh) and submitted that the Hon’ble Apex Court refused to grant disability pension to the army personnel, who suffered illness, which was not attributable to military service. I have considered the rival submissions. First of all, in this case it is not disputed by either of the parties that petitioner was boarded out due to disability suffered by him. It is also not disputed that petitioner was allowed normal pension vide PPO dated 13/6/2000 and the only claim of the petitioner is that he was wrongly denied disability pension by the respondents, so also the ground on which the disability pension was denied is totally baseless and has no foundation to stand in the eye of law. In this case, it is evident from the Regulation 173 that disability pension is admissible to Army personals upon certain conditions. Regulation 173 reads as follows:- “173. Unless otherwise specifically provided a disability pension may be granted to an individual who is invalidated from service on account of a disability attributable to or aggravated by military service and is assessed at 20 percent - 6 - or above. The question whether a disability is attributable to or aggravated by military service shall be determined under rule in Appendix II. Relevant portion in Appexdix II reads as follows: “2.Disablement or death shall be accepted as due to military service provided it is certified that- (a) The disablement is due to wound, injury or disease which – (i) is attributable to military service, or (ii) existed before or arose during military service and has been and remains aggravated thereby. (b) the death was due to or hastened by- (i) a wound, injury or disease which was attributable to military service, or (ii) the aggravation by military service of a wound, injury or disease which existed before or arose during military service. Note: The Rule also covers cases of death after discharge/invaliding from service. 3. There must be a casual connection between disablement or death and military service for attributability or aggravation to be conceded. 4. In deciding on the issue of entitlement all the evidence both - 7 - direct and circumstantial, will be taken into account and the benefit or reasonable doubt will be given to the claimant. This benefit will be given more liberally to the claimant in field service case.” Upon perusal of aforesaid Regulation 173, it is clear that there is no express denial for disability pension in the event of disability suffered by Army personnel during availing the casual leave. Similarly, there is no express provision in the Army Rules to deny disability pension to the Army personnel, who enjoys casual leave during his service tenure. In this case, admittedly, the petitioner was in service of military and he was on casual leave on the date when he met with an accident in which he suffered disability. Likewise, medical board also recommended the case of petitioner for grant of disability pension and he was medically boarded out from service with recommendation for disability pension on 31/10/2000. If medical board was of the opinion that petitioner is entitled for disability pension then how the respondents can deny the said benefit without any express provision. - 8 - In Joginder Singh’s case (supra) exactly similar controversy was under consideration before the Hon’ble Apex Court and Apex Court has held that no Army Regulation or Rule has been brought to the notice of the Court to show that the appellant is not entitled to disability pension, rather it is not disputed that army personnel on casual leave is treated to be on duty. Paras 5 and 6 of the aforesaid judgment read as under:- “5. The question for our consideration is whether the appellant is entitled to the disability pension. We agree with the contention of Mr.B.Kanta Rao, learned counsel for the appellant that the appellant being in regular Army there is no reason why he should not be treated on duty when he was on casual leave. No Army Regulation or Rule has been brought to our notice to show that the appellant is not entitled to disability pension. It is rather not disputed that an army personnel on casual leave is treated to be on duty. We see no justification whatsoever in denying the disability pension to the appellant. 6. We, therefore, set aside the order of the High Court dated 15-12-1992. The disability of the appellant has already been adjudged by the respondents as 60%. We direct the respondents to grant disability pension to the appellant from the date when he was discharged from the Army treating him to have incurred 60% disability. The - 9 - respondents shall finalize the disability pension case of the appellant within three months from the receipt of this order. The appellant shall be further paid all the arrears of the pension within a further period of three months thereafter. In case the arrears of disability pension are not paid to the appellant within the period of six months from the receipt of this order, then the appellant shall be entitled to 12% interest from that date on the amount due.” The judgment cited by the learned counsel for the respondent in case of Union of India vs. Keshar Singh in Civil Appeal No.762/2001 has no application to the facts of present case, more so in that case in the opinion of medical board the illness was not attributable to the military service. But, in the instant case, it is not so. The facts of this case are clearly distinguishable and are identical to the case of Joginder Singh reported in 1995 Supp. (3) SCC 232. In this view of the matter, in my opinion when there is no express bar in the Army Regulation 173 for not treating any army personnel in service when he was on casual leave then petitioner’s claim for disability pension cannot be denied. Therefore, denial of disability pension by the respondents vide impugned order dated 26/7/2001 (Annex.5) and appellate order - 10 - dated 22/8/2003 (Annex.R/1) is totally illegal and has no foundation to stand before eye of law. Thus, following the decision rendered by Hon’ble Apex Court in 1995 Supp.(3) SCC 232 (Lance Dafadar Joginder Singh vs. Union of India & Others), this writ petition is allowed. The order Annex.5 dated 26/7/2001 and 22/8/2003 are quashed and respondents are directed to grant disability pension to the petitioner within a period of three months from the date of receipt of certified copy of this order. The benefit of disability pension shall be allowed from the date when petitioner was discharged on the ground of disability before eye of law. No order as to costs. (GOPAL KRISHAN VYAS), J. Pankaj Baweja