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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No. 827 of 2009 (O&M)
Date of decision: 11.9.2009.
Union of India and others
......Appellants
Vs.
Ex.Nk.Parmod Kumar
...Respondent
CORAM:- HON'BLE MR.JUSTICE ADARSH KUMAR GOEL
HON'BLE MRS.JUSTICE DAYA CHAUDHARY
PRESENT: Ms.Geeta Singhwal, Central Government Counsel, for
appellants.
****
ADARSH KUMAR GOEL, J. (Oral)
1. This appeal has been preferred against the judgment of the
learned Single Judge allowing the writ petition of the respondent and
directing grant of disability pension.
2. The respondent was enrolled in the Army as Sepoy on 7.4.1987.
While on temporary duty in Delhi on 15.6.2003, he met with an accident.
He was discharged from military service after serving more than 15 years,
on 31.8.2003. On medical examination, he was found to have Compound
Spiral Fracture of Tibia. The said injury was attributable to army service.
The claim of the petitioner for disability pension was rejected on the ground
that he had been discharged from service at his own request and was not
invalidated out. Reliance was placed on earlier DB Judgment of this Court
in Nk.Amrik Singh Ex.No.2481131 H v. Union of India and others
C.W.P.No. 10174 of 2006, decided on 1.4.2008 and judgment of Delhi
High Court in Mahavir Singh Narwal v. Union of India and others CWP
No. 2967 of 1989 decided on 5.5.2004. Reliance was also placed on
LPA No. 827 of 2009 [2]
recommendation of 6th Pay Commission for treating person, who retired
voluntarily, eligible for grant of disability pension.
3. The learned Single Judge held that once disability was held to
be attributable to army service, mere fact that instead of being invalided
out, request for discharge was made, there was no ground to deny disability
pension as held in the earlier DB Judgment in Nk.Amrik Singh and
judgment of Delhi High Court in Mahavir Singh (supra).
4. We have heard learned counsel for the appellant.
5. Learned counsel for the appellants is not able to dispute that
case of the respondent is covered by earlier DB Judgment of this Court in
Naik Amrik Singh (supra). This being the position, no ground is made out
for interference with the view taken by the learned Single Judge.
6. The appeal is dismissed.
(ADARSH KUMAR GOEL)
JUDGE
(DAYA CHAUDHARY)


IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 19417 of 2007
DATE OF DECISION : FEBRUARY 18, 2009
EX. NAIK PARMOD KUMAR
....... PETITIONER(S)
VERSUS
UNION OF INDIA & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Chanderhas Yadav, Advocate, for the petitioner(s).
Ms. Geeta Singhwal, Advocate, for respondents.
AJAI LAMBA, J.
The issue raised in this petition under Articles 226/227 of the
Constitution of India is in regard to entitlement of the petitioner, who was
discharged on his request on compassionate grounds, to disability pension,
the petitioner having suffered disability which was attributable to military
service.
The facts, necessary for consideration of the issue, are that the
petitioner was enrolled in the Army as a Sepoy on 7.4.1987. On 15.6.2003,
the petitioner was sent on temporary duty to Delhi to submit food samples
Civil Writ Petition No. 19417 of 2007 2
to the Central Forensic Laboratory at Delhi. When the petitioner was
going to board the train, he met with an accident. On 31.8.2003, the
petitioner was discharged from military service on his request after
serving for 15 years 6 months and 20 days. Release Medical Board was
not constituted as the discharge was on the request of the petitioner. On
8.7.2003, the condition of the petitioner was not good and he was granted
sick leave for 6 weeks. The petitioner was, again, admitted in Base
Hospital, Delhi on 19.8.2003. The petitioner was diagnosed for
Compound Spiral Fracture of Tibia (Left). As the petitioner could not
perform his duties, a Court of Inquiry was held. The result of Court of
Inquiry has been placed for consideration of the Court as Annexure P-1
and the relevant portion thereof reads as under:-
“Opinion of the Court
The Court is of the following opinion:-
xx xx xx xx xx
xx xx xx xx xx
(b) The accident which occurred to No.6384091 'F' NK/SHT
Pramod Kumar on 15th June 2003 was beyond the control of
the Indl. and no one is to be blamed for the same.
(c) The injury sustained by No.6384091 'F' NK/SHT Pramod
Kumar is attributable to Mil. Service.”
The petitioner was granted service element of pension only,
as is evident from letter dated 1.3.2004 (Annexure P-2). The petitioner
made a number of representations before the authorities praying for
disability pension. Vide letter dated 19.8.2004 (Annexure P-3), the
respondent-authorities showed their intention to appoint a Release
Medical Board, which was later sanctioned by the President of India vide
Civil Writ Petition No. 19417 of 2007 3
letter dated 14.1.2005 (Annexure P-4).
After some more correspondence, regular Release Medical
Board examined the petitioner. The opinion dated 17.5.2005 given by the
Release Medical Board has been placed on record as Annexure P-5, which
recommended the petitioner to be released from service in A-3 permanent
category. Annexure P-6 is a document authored by the Release Medical
Board, which indicates that on account of the Compound Spiral Fracture
of the Tibia, the petitioner had suffered 20% disability for life.
The petitioner, thereafter, pursued his claim for disability
pension and submitted the documents as required by the authorities. Vide
letter dated 17.1.2006 (Annexure P-8), the claim of the petitioner for
disability pension has been rejected on the ground that the petitioner was
discharged from service at his own request on compassionate ground. It
seems that the petitioner filed an appeal, which has been dismissed vide
order dated 5.5.2006 (Annexure P-9). Para-3 of the order (Annexure P-9)
reads as under:-
“3. As regards of your disability element it is informed that
as per existing policy, person discharged from service at own
request on compassionate ground is not admissible disability
element or will any appeal lie against non grant of disability
pension/element.”
It seems that the petitioner again approached the authorities
vide appeal dated 25.9.2006 (Annexure P-10), while highlighting the
report given by the Court of Inquiry to the effect that the disability was
attributable to military service and the injury had been sustained for
reasons beyond the control of the petitioner. Despite the second appeal
Civil Writ Petition No. 19417 of 2007 4
having been made in reference to various aspects of the case, viz. bona
fides of the petitioner, etc., the claim of the petitioner was yet again
rejected vide order dated 14.10.2006 (Annexure P-11), on the only ground
that the petitioner was discharged from service at his own request before
completion of prescribed service limits under Army Rule 13(3) Item III
(IV) and not invalidated out. The only reason assigned is that there was a
policy not to allow disability pension to a person who is discharged from
service at his own request.
The petitioner, thereafter, got a legal notice issued on
31.7.2007, as is evident from Annexure P-12. Even the legal notice has
been rejected vide communication dated 10.9.2007 (Annexure P-13).
Learned counsel for the petitioner, in the back-drop of facts
and circumstances noticed above, has argued that the opinion (Annexure
P-1) makes it evident that the petitioner did not receive the injury for
reasons within his control. Annexure P-1 further makes it evident that
the injury and consequent disability was attributable to military service.
Despite such being the facts, the claim of the petitioner for disability
pension has been rejected on the ground that the petitioner sought
discharge on his own request. It has been argued that the disability
pension is admissible to the petitioner as the disability is attributable to
military service.
Learned counsel for the petitioner has placed reliance on a
judgment rendered by a Division Bench of this Court in CWP 10174 of
2006 decided on 1.4.2008 (Nk. Amrik Singh Ex. No.2481131H v. Union
of India and others).
Civil Writ Petition No. 19417 of 2007 5
Reliance has also been placed on a Division Bench judgment
rendered by the High Court of Delhi at New Delhi in CW No.2967 of
1989 decided on 5.5.2004 (Mahavir Singh Narwal v. Union of India and
others). It has further been contended that the judgment given in Mahavir
Singh Narwal's case (supra) has been affirmed by the Hon'ble Supreme
Court of India in Special Leave to Appeal (Civil) No.24171 of 2004
decided on 4.1.2008 (Union of India and another v. Mahavir Singh
Narwal (Dead) by LRs).
It has been brought out by the learned counsel for the
petitioner that the issue as raised in this petition has been addressed by the
6th Pay Commission and the 6th Pay Commission has recommended that
the personnel who retire voluntarily would also be eligible for grant of
disability pension.
Learned counsel for the respondents has only contended that
the case of the petitioner is not covered under the rules of the respondents.
The petitioner sought discharge from service on his own request on
compassionate ground, the petitioner, therefore, does not have any right to
claim disability pension.
I have considered the issue.
The issue faced by this Court is the claim for disability
pension. In view of the established fact from Annexures P-1 and P-6 to
the effect that the injury sustained by the petitioner is attributable to
military service and the petitioner having suffered 20% permanent
disability, it has to be held that discharge from service after invalidating
the petitioner or on request of the petitioner would not be a relevant
Civil Writ Petition No. 19417 of 2007 6
factor/circumstance to consider the claim of the petitioner for disability
pension.
This issue has been addressed by a Division bench of this
Court in Nk. Amrik Singh's case (supra). The relevant portion of the
judgment, when extracted, reads as under:-
“Admittedly, the disability suffered by the petitioner is
attributable to and aggravated by military service. The
question involved is - whether on account of seeking
discharge on compassionate ground, the petitioner has lost his
right to claim disability pension although the disability is
attributable and aggravated on account of military service.
Had the petitioner been invalidated out of military service on
account of 20 % disability for life due to Gun Shot Wound
suffered by him during enemy action in Kargil Sector during
Operation RAKSHAK, he would have been granted the
disability pension along with service element of pension.
Merely because the petitioner has attained discharge on
compassionate ground although his disability is attributable
to and aggravated by Army service, it will not be a ground to
reject his claim of disability pension.
xx xx xx xx xx
xx xx xx xx xx
For the aforesaid reasons, we allow this writ petition
and direct the respondents to grant disability pension to the
petitioner on the basis of assessment of 20% disability for life
as opined by the Release Medical Board in October 2004
upto date. However, the petitioner having been invalidated
out from Army in October 2004, in view of the letter dated
February 03, 2000 issued by the Government of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pension & Pensioners' Welfare, New Delhi,
whereby in case of percentage of disability assessed at less
Civil Writ Petition No. 19417 of 2007 7
than 50 %, the percentage for computation of disability
pension is to be reckoned as 50 %, the petitioner is held
entitled to disability pension at the rate of 50 %. The
respondents shall pay all the arrears to the petitioner within
two months from the date of receipt of a copy of this order,
failing which the petitioner will be entitled to interest at the
rate of nine per cent annum.”
From a perusal of the judgment rendered in Nk. Amrik
Singh's case (supra), it transpires that Pension Regulations 173 and 173-A
of the Pension Regulations for Army, 1961, have been considered by this
Court. Consideration of these provisions indicates that a person has been
held entitled to disability pension when a person is “invalidated from
service”. The provisions entitle a person to disability pension even if an
individual, at the time of his release, was in low medical category whereas
at the time of recruitment in Army, he had no such disability. It has been
held that merely because the petitioner has attained discharge on
compassionate grounds although his disability is attributable to and
aggravated by military service, it will not be a ground to reject his claim
for disability pension.
When the present case is considered on the touch stone of the
spirit of these provisions, it becomes evident that the petitioner did not
suffer from any disability at the time of his recruitment. The petitioner
served the Indian Army from April, 1987 till August, 2003, i.e. for more
than 15-1/2 years. While on duty, the petitioner met with an accident for
reasons beyond his control and suffered disability which has been held to
be attributable to military service. Disability itself is to the extent of 20%
for life. In such circumstances, the claim of the petitioner for disability
Civil Writ Petition No. 19417 of 2007 8
pension cannot be denied.
From Mahavir Singh Narwal's case (supra), the following
needs to be considered:-
“On careful perusal of the aforesaid rule it is manifestly
clear that invalidated from service is necessary condition for
grant of disability pension. What has to be seen for
entitlement for disability pension is whether an individual at
the time of his release was in a low medical category than that
in which he was recruited if it was so then such person will be
treated as invalidated from service. It is the admitted case of
the parties that at the time of recruitment the petitioner did
not have any disability. It is also admitted case of the parties
that the petitioner got disability on account of stress and
strain of military service and his category was initially lower
down temporary to CEE on 21st September, 1978 for a period
of 6 months and after the Release Medical Board examined
the petitioner on 11th April, 1979 it found the disability to be
30% aggravated by stress of military service and he was
down graded to permanent low medical category . Once the
petitioner was in low medical category according to Rules 1
and 2 of Appendix II of Pension Regulations 173 he shall be
treated as invalidated from service. It seems that on careful
consideration of the Pension Regulations 173, read with
Rules 1 and 2 of Appendix II, the respondents themselves
have recommended for grant of disability pension to the
petitioner vide their letters dated 3rd April, 1986 and
subsequently on 11th April, 1986 which is as under. ........
xx xx xx xx xx
xx xx xx xx xx
The arguments advanced by the learned counsel for the
respondents that these letters were not issued by the
competent authority is not of any relevance for grant of
disability pension. What is relevant is whether the mandate of
Civil Writ Petition No. 19417 of 2007 9
Pension Regulation 173 read with Rules 1 and 2 of Appendix
II has been taken into consideration or not. Merely because a
person has attained discharge on compassionate ground
although his disability has been acquired on account of stress
and strain of military service will not be a ground to reject the
claim of disability pension, it has been invalidated act in
terms of Appendix II of Rule 173. We allow the writ petition
and direct the respondent to grant disability pension to the
petitioner on the basis of assessment of 30% disability as
opined by the Release Medical Board in the year 1979 upto
date . For future disability pension the respondent may
conduct another medical board to assess the percentage of
disability of the petitioner. Arrears of disability pension be
paid to the petitioner within a period of 8 weeks. If the same
are not paid within 8 weeks the petitioner shall be entitled to
the interest at the rate of 9% on the amount of arrears. With
these directions the writ petition is allowed.”
The Division Bench of the Delhi High Court had considered
the mandate of Pension Regulation 173 and it has been held that discharge
on compassionate ground when the disability had been acquired on
account of military service, will not be a ground to reject the claim for
disability pension. As is the admitted case, the judgment rendered in
Mahavir Singh Narwal's case (supra) was challenged before the Hon'ble
Supreme Court of India. The Special Leave Petition, however, has been
dismissed.
The purpose of giving disability pension is because during
the tenure of military service, disability is suffered and the same is
attributable to military service, or a disability is aggravated by military
service, an individual is entitled to pension on that account i.e. acquiring
Civil Writ Petition No. 19417 of 2007 10
disability. Any differentiation, such as the one suggested by the
respondents viz. discharge on compassionate ground, would clearly be
unreasonable, injudicious, illogical and arbitrary.
In view of the above, the writ petition is allowed. The
respondents are directed to grant disability pension to the petitioner on the
basis of assessment of 20% disability for life. The respondents shall pay
all the arrears to the petitioner within 2 months from the date of receipt of
a copy of the judgment, failing which the petitioner would be entitled to
interest at the rate of 9% on the amount of arrears.
February 18, 2009 ( AJAI LAMBA )
Kang