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Judgment
Jawahar Lal Gupta, J.—The Petitioner who was discharged from the Indian Army as a Subedar (Hony. Lt.) on September 4, 1969, has filed this writ petition with a prayer that a writ of mandamus be issued directing the Respondents to release the disability element of pension to him. A few facts may be noticed.
The Petitioner was enrolled in the Army on September 5, 1941. He had risen to the rank of a Subedar. On the 5th September, 1969 the Petitioner was discharged from the Army on completion of his tenure. During these 28 years, the Petitioner had served in various areas of operation and was awarded various medals. He was also granted the honorary rank of Lieutenant. The Petitioner alleges that from the 16th September, 1965 to 11th February, 1968, he had remained posted in Nefa. He had to "carry out strenuous duties of visiting various regiments of the Brigade located at the height of over 13000 feet. "Due to the stress and strain of service duties, the Petitioner suffered "myocardial infraction and was hospitalised." He was brought before the Release Medical Board at Chandigarh. He was down-graded to the Medical Category ''BEE'' and the disability was assessed at 30%. On 5th September, 1969, he was discharged from the service. His case for the grant of disability element of pension was sent to the competent authority,--vide letter dated 24th April, 1970, he was informed that the "disability...is not attributable to or aggravated by the military service." Consequently, his claim was rejected : A copy of this order has been produced as Annexure P.2 with the writ petition. Thereafter, the Petitioner took no action for a period of seven years when he submitted an appeal. This was rejected,--vide order dated 12th December, 1977. He submitted another representation which was rejected on 11th March, 1981. More than 15 years later, the Petitioner filed the present writ petition in August 1996. He prays that the Respondents be directed to pay the disability pension to him.
The Respondents contest the Petitioner''s claim. It has been averred that the Petitioner was "retired...after completion of term of service and he has no cause of action to claim the disability pension...." It was "during his hospital admission at Command Hospital, Chandigarh on 17th June, 1969 for Release Medical Board in preparation to his retirement from the Army, the disease ''Myocardial Infraction 410'' was diagnosised by the Board of Medical Officers....The Medical Board...opined the cause of his disease as ''constitutional disability unconnected with service''. "The proceedings of the Medical Board were approved by the Higher Formation Headquarters i.e. ADMS, HQ PH and HP Area, Ambala Cantt. on 24th June, 1969. It has been further stated that the Petitioner''s representation was considered and rejected. The Respondents allege that the writ petition is highly belated and should be dismissed on that ground also.
Counsel for the parties have been heard.
On behalf of the Petitioner, it has been contended that the claim for disability pension has been arbitrarily rejected. The benefit was admissible to the Petitioner under the Pension Regulations and that the Respondents had wrongly declined his prayer. On behalf of the Respondents, it was submitted that the writ petition was highly belated. It is further submitted that the Medical Board had found that the physical problem was ''constitutional disability unconnected with service''. Consequently, the Petitioner has no claim for pension.
The two questions that arise for consideration are:
(i) Is the writ petition liable to be dismissed on the ground of delay?
(ii) Is the Petitioner entitled to the grant of disability pension?
Reg.(i)
The Petitioner was admittedly discharged from the Army on 5th September, 1969. His claim for disability pension had been rejected,--vide order dated 24th April, 1970. He had filed an appeal after many years which was rejected,--vide order dated 12th December, 1977. The two representations submitted thereafter were rejected,--vide orders dated 8th June, 1978 and 11th March, 1981. Even thereafter, the Petitioner had waited for 15 years before approaching this Court. (Apparently, the petition is highly belated. However, the courts have been reluctant to reject a citizen''s claim for pension on the ground of delay. The obligation to pay pension is that of the Government. If either on account of ignorance or on account of some other reason, the citizen does not approach the '' court, the result is that the Government retains money belonging to him. It would be grossly unfair if the Government is permitted to take advantage of the situation in which the employee is placed and his claim for pension was to be rejected only on the ground of delay). In fact, this Court has already taken that view. Reference in this behalf may be made in Sardara Singh v. Union of India 1992 (6) S.L.R. 683. It was held as under:
It is no doubt correct that the Petitioner has filed the writ petition after a lapse of almost 40 years. A perusal of the order, quoted above, however, shows that the Petitioner had been regularly representing to the authorities and his claim was declined only on the ground that the disability was net attributable to or aggravated by military service. This being factually incorrect, we have no alternative but to quash the order. Further more, in the circumstances of the case and more particularly the continuing disability (sic) delay in approaching the court even in the matter of pension cannot completely defeat his claim. We consider it to be in the interest of justice to allow his claim for the payment of pension. However, on account of delay, we decline the Petitioner''s prayer for the payment of interest.
The above view has the imprimatur of their Lordships of the Supreme Court. (In S.R. Bhanrale Vs. Union of India and others, , it was held that when the department itself had defaulted in making payments inspite of demands made by the employee, it could not plead the bar of limitation. Consequently, the plea of delay raised on behalf of the Respondents cannot be sustained. It is rejected).
Reg. (ii)
It was contended on behalf of the Petitioner that a member of the Armed Forces who suffers from any kind of physical disability which is assessed at 20% or more has a right to get the disability pension in spite of the fact that he has served for the full tenure. In case of the Petitioner, it was clearly established that he was suffering from a disability of 30% at the time of his discharge from the Army. Consequently, he had a right to the grant of disability pension. This claim was controverted on behalf of the Respondents.
The grant of pension to the Army personnel is governed by the provisions of Army Pension Regulations, 1961. Regulation 132 provides that "the minimum qualifying colour service for earning a service pension is 15 years." Keeping in view the fact that soldiers can suffer injuries which can result in causing permanent or temporary disability and even affect their tenure of service, a special provision for the grant of disability pension has also been made. The obvious purpose is that a person who has suffered injury during the course of his service in the Army should be compensated.
What is the position in the present case? Admittedly, the Petitioner had served from 5th September, 1941 to 4th September, 1969. He had completed his full tenure of 28 years. Thus, he had not suffered adversely in so far as his tenure of service is concerned.
Learned Counsel for the Petitioner contended that a soldier is entitled to the grant of disability pension in spite of the fact that he has had a full tenure of service. In support of his claim, learned Counsel referred to the provision of Regulation 179. It reads as under:
A Junior Commissioned Officer retired on completion of tenure or of service limits, if suffering on retirement from a disability attributable to or aggravated by military service and recorded by service Medical Authority, may at the discretion of the competent authority, be granted in addition to the service pension admissible a disability element AS if he had been retired on account of the disability.
(A perusal of the above provision would show that disability pension can be granted to a person in spite of the fact that he has completed his tenure of service. However, the regulation confers a discretion on the authority. The rationale is that a person may suffer an injury a few days before his due date of retirement. He may complete his tenure before he is actually retired but the quality of his life is adversely affected). To compensate him for that, a provision for the grant of disability pension has been made. However, the rule does not confer an absolute right on the officer. It gives a discretion to the authority. Resultantly, the competent authority has to consider and decide the case on its own facts. If it finds that the disability was attributable to or aggravated by military service, it can grant disability pension. However, if it finds that the disability was neither attributable to nor aggravated by Army Service, it has the power to decline the request. However, it must act fairly. It cannot act arbitrarily.
What is the position in the present case? (The competent authority has after consideration of the matter, come to the conclusion that the disability was not attributable to or aggravated by the military service. The Petitioner was admittedly examined by a Medical Board. A copy of the proceedings of the Board was produced before us. We have retained a photo copy on record as Mark ''A''. It clearly shows that the Petitioner''s problem was found to be "constitutional" and "not attributable to the Army Service". If the competent authority has taken a positive decision on the basis of the advice of the Medical Board, it cannot be said that it has exercised its discretion arbitrarily or unfairly. The view taken by the authority was a possible one. It would not be fair for this Court to substitute its own opinion for that of the competent authority).
Besides the above, it is also the admitted position that an officer is entitled to the grant of disability pension only when the medical evidence establishes that he was handicapped to the extent of 20% or more. In the present case, there is no evidence regarding the extent of the Petitioner''s disability for the last 25 years. There is nothing to show that he has a disability of 20% or more.
In view of the above, the second question is answered in the negative. It is held that the Petitioner is not entitled to the grant of disability pension. The action of the authorities in rejecting his claim was not illegal or invalid.
No other point was raised.
In view of the above, there is no merit in this writ petition. It is, consequently, dismissed. No costs.