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Judgment
Counter affidavit has already been filed by the respondents.
No rejoinder is to be filed as stated by counsel for the applicant.
Arguments heard.
Vide separate order, OA stands disposed of.
M.A. No. 724 of 2019:
Vide this application; the applicant seeks condonation of delay of 3770 days in filing the O.A. by relying upon Deokinandan Prasad Vs. State of
Bihar, AIR 1971 SC 1409 and Union of India & Ors. Vs. Tarsem Singh, AIR 2009 (1) AISLJ 37 1wherein it was held that since the pension is not a
bounty payable on the sweet-will and pleasure of the Government, on the other hand, the right to pension is a valuable right vesting in a government
servant, relief may be granted as it does not affect the rights of the other parties. However, in so far as consequential relief of recovery of arrears for
past period, the principles relating to recurring/successive wrongs will apply. As a result, consequential relief relating to arrears will be restricted to
three years prior to the filing of writ petition.
In view of the aforesaid, delay of 3770 days in filing the OA is condoned and in the event of the applicant's succeeding in the OA, arrears will be
restricted to three years, prior to filing of OA,
Accordingly, M.A. No. 724 of 2019 stands disposed of.
O.A. No. 264 of 2019
The applicant has prayed for following reliefs:-
(i) To direct the respondents to produce all medical records of the applicant.
(ii) To direct the respondents to grant disability pension to the applicant from 01.10.2008.
(iii) To direct the respondents to grant the benefit of rounding off the disability pension from 30% to 50% from the date of discharge.
(iv) To direct the respondents to issue a corrigendum PPO with the necessary changes pertaining to the disability and broad banding of the
disability pension
(v) To direct the respondents to pay arrears of disability pension and broad banded disability pension along with interest @ 12%.
(vi) To grant such other relief appropriate to the facts and circumstances of the case as deemed fit and proper.
Brief facts of the case are that the applicant was enrolled in Indian Army on 26.10.1991 and was discharged from service on 30.09.2008. His
Release Medical Board (RMB) opined his disability ""PRIMARY HYPERTENSION"" @ 30% for life neither attributable to nor aggravated by military
service (NANA). Accordingly his claim for disability pension was rejected. Thereafter applicant's first and second appeals were also rejected. Hence
this 0.A.
Learned counsel for the applicant submitted that since the applicant was enrolled in a medically fit condition and has been discharged from service
in Low Medical Category, as such, his disability should be considered as aggravated by military service and he should be granted disability pension in
accordance with the law settled by the Honible Supreme Court vide its judgment in the case of Dhararnvir Singh vs UOI & Ors, reported in (2013) 7
SCC 316. He pleaded for grant of disability pension to the applicant.
Ld. Counsel for the respondents contended that though the medical authority has assessed the disability ""PRIMARY HYPERTENSION"" © 30%
for life but it has been considered as NANA because there is no close time association with stress and strain of field/HAA/CI (Ops) service and the
disease has started in peace area. They have concluded that in terms of Para 173 of Pension Regulations, the applicant's claim has correctly been
rejected and prayed for 0.A. to be dismissed.
We have heard the parties and perused the RMB. The question before us is straight and simple i.e. is the disease of the applicant attributable to or
aggravated by Military service.
On careful scrutiny of the RMB, we find that the applicant picked up this disease after about 15 years of service. The RMB has denied
attributability for this disease ""PRIMARY HYPERTENSION"" on the ground that it is a constitutional disorder and is not connected with service. The
rejection letter in second appeal has further commented that the disease is NANA because it started in peace and has no close time association with
Fd/HAA/CI (Ops) areas. Firstly we are of the opinion that such a cryptic comment by RMB i.e. `constitutional disorder' is not adequate to deny
attributability/aggravation. Secondly, we do not agree with this additional logic given in second appeal that stress and strain of military service is only
relevant in Fd/HAA/CI (Ops) areas and not in peace areas. Prima facie the nature of military duties are such that they can generate stress and strain
of military service in peace areas also.Hence in line with the settled law on attributability and aggravation vide Hon'ble Supreme Court's judgment of
Dharamvir Singh (supra) we give benefit of doubt to the applicant and declare his disability as aggravated by military service. Additionally, in line with
the settled law by Hon'ble Supreme Court vide its judgment in the case of UO/ & vs Ram Avtar, (Civil Appeal No 418 of Ors 2012 decided on
10.12.2014) the applicant is also entitled for the benefit of rounding off of disability pension after his discharge.
However it is a well settled law that the claim for pension is based on continuing wrong and the relief can be granted if such continuing wrong
creates a continuing source of injury. In the case of Shiv Dass vs. Union of India, reported in 2007 (3) SLR 445 and Union of India vs Tarsem Singh,
(2009) 1 AISLi 371, the law settled by the Honible Apex Court is that if a petition for pension (disability pension in this case) is filed beyond a
reasonable period, the relief prayed for is to be restricted to a reasonable period of three years.
In view of the above the Original Application deserves to be allowed. Accordingly the O.A. is allowed. The disability of the applicant i.e.
PRIMARY HYPERTENSION"" is to be considered as aggravated by military service. The impugned orders passed by the respondents are set aside.
The respondents are directed to grant disability element to the applicant @ 30% for Life which would stand rounded off to 50% for Life from three
years prior to the filing of the present Original Application. The date of filing of O.A. is 11.02.2019. The applicant is already in receipt of service
element after his discharge. The respondents are further directed to give effect to this order within a period of four months from the date of receipt of
a certified copy of this order. In case the respondents fail to give effect to this order within the stipulated time, they will have to pay interest © 6%
on the amount accrued from due date till the date of actual payment.
No order as to cost.