-1- Civil Writ Petition No.2416 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 13,2008. Ex – Subedar Ram Richpal ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.R.A. Sheoran, Advocate, for the petitioner. Ms. Ranjana Shahi, Advocate, for the respondents. -.- MOHINDER PAL, J. The petitioner was invalidated out from the Army Service with effect from December 01, 1997 due to disability `ID PULMONARY TUBERCULOSIS (REACTIVATION) 011 & V 67' on the -2- Civil Writ Petition No.2416 of 2007. recommendation of a constituted Medical Board, after he had rendered more than twenty seven and a half years service. His disability was accepted by the Pension Sanctioning Authority at 30 % for two years and accordingly he was granted disability element of pension at this rate with effect from December 02, 1997 to November 26, 1999. Thereafter, as per decision contained in letter dated March 15, 2000 (Annexure P-1) the petitioner was granted disability element at the rate of 100 % with effect from December 02,1997 to December 01, 1998 and at the rate of 50% for two years with effect from December 02,1998 to December 01, 2000. However, the disability pension of the petitioner was discontinued by the competent authority from December 02, 2000, on the ground that his disability was assessed by the RSMB at less than 20 %. Against the discontinuation of the disability petition, the petitioner preferred an appeal, which was accepted and he was asked to appear before the RSMB. The RSMB was held again on June 02, 2005 and it recommended disability element of pension to the petitioner at the rate of 30% with effect from June 02, 2005. Subsequently, he was granted disability element at the rate of 30 % for life with effect from June 02, 2005, which was later on amended/computed at the rate of 50%. The petitioner was granted rank of Honorary Sub Major with effect from December 02,1997, on the occasion of Republic Day of 2005. In this petition filed under Articles 226/227 of the -3- Civil Writ Petition No.2416 of 2007. Constitution of India, the claim of the petitioner is that he has been wrongly denied the disability element of pension from December 02, 2000 to June 01, 2005. He has also claimed disability pension from December 02, 2000 to June 01, 2005 according to the rounding off policy which was made effective from January 01, 1996. In the written statement, filed by the respondents, it has been pleaded that the petitioner is not entitled to disability pension from December 02, 2000 to June 01, 2005 as he did not appear before RSMB at Base Hospital, Delhi Cantt, in spite of having been advised to do so vide E.M.E Records letter No.JC-182303/RA-1/Pen dated February 06, 2001 and letter of even number dated March 07, 2001 because his earlier RSMB dated September 28, 2000 was superseded. Ultimately, the petitioner had reported before RSMB on September 14, 2002 at Base Hospital, Delhi Cantt, which reassessed his disability at less than 20 % ( i.e 14 % to 19%) for life due to its improvement. Hence, the disability element claim of the petitioner was rejected by P.C.D.A(P), Allahabad, vide letter No.G-3/RA/12/27254/III dated February 26, 2003 as he was not meting primary conditions for grant of disability element as laid down in Regulation 173 of the Army Pension Regulations, 1961. The petitioner requested for conducting a fresh RSMB vide his appeal dated December 15, 2003. The appeal was accepted and the petitioner was brought before a fresh RSMB, which reassessed his disability at 30 % for life -4- Civil Writ Petition No.2416 of 2007. with effect from June 02, 2005. Hence, the petitioner is not eligible for disability pension from December 02,2000 to January 01,2005. We have heard Mr.R.A. Sheoran, Advocate, appearing for the petitioner and Ms. Ranjana Shahi, Advocate, appearing for the respondents and have gone through the records of the case. As stated above, after rendering more than twenty seven and a half years service, the petitioner was invalidated out from the Army Service with effect from December 01, 1997. Initially, he was granted disability pension at the rate of 30 % for two years with effect from December 02, 1997 to November 26, 1999. However, later on his disability pension was revised and he was granted the same at the rate of 100 % with effect from December 02, 1997 to December 01, 1998 and at the rate of 50 % for two years with effect from December 02, 1998 to December 01, 2000, according to the rounding off policy. On September 14, 2002, the RSMB reassessed disability of the petitioner at less than 20 % ( i.e 14 % to 19%) for life due to its improvement. According to the respondents, earlier RSMB dated September 28, 2000, in respect of the petitioner was superseded. The respondents discontinued disability petition to the petitioner from December 01, 2000, on the ground that his disability was assessed by the RSMB at less than 20%. It is admitted by the respondents in the written statement that vide his appeal dated December 15, 2003, against the discontinuation -5- Civil Writ Petition No.2416 of 2007. of the disability petition, the petitioner requested for conducting a fresh RSMB. His appeal was accepted, fresh RSMB was done and disability of the petitioner was reassessed at 30 % for life with effect from June 02, 2005. Although the respondents accepted the appeal of the petitioner against his RSMB conducted on September 14, 2002 and did fresh RSMB reassessing his disability at 30 %, but disallowed disability pension to the petitioner for the period from December 02, 2000 to January 01, 2005, taking the plea that his RSMB conducted on September 29, 2000 stood superseded by the RSMB done on September 14, 2002. This action of the respondents cannot be upheld. Obviously, the decision taken on the appeal dated December 15, 2003, preferred by the petitioner, whereby the petitioner was brought before a fresh RSMB which reassessed his disability at 30 %, would relate back to the RSMB conducted before September 14, 2002. To make it more clear, RSMB in respect of the petitioner was earlier done on September 29, 2000, which according to the respondents was superseded by the RSMB done on September 14, 2002. Against the RSMB done on September 14, 2002, the petitioner filed appeal, which was accepted and his disability was reassessed at 30 % vide RSMB done on June 02, 2005. Thus, the RSMB done on September 14, 2002, which assessed disability of the petitioner at less than 20 % ( i.e 14 % to 19 %) was superseded by the RSMB done on June 02, 2005; meaning thereby the RSMB -6- Civil Writ Petition No.2416 of 2007. done on June 02, 2005, after acceptance of the appeal of the petitioner against the RSMB done on September 14, 2002, which superseded the RSMB done on September 28, 2000, would relate back to September 20, 2000. For the aforesaid reasons, this petition is allowed and the petitioner is held entitled to disability pension at the rate of 30 %, from December 02, 2000 to June 01, 2005, according to the rounding off policy, as was being paid to the petitioner earlier from December 02, 1997 to December 01, 2000 and has now been ordered to be paid by the respondents with effect from June 02, 2005. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 13, 2008. ak