Kartar Chand vs Union of India and four Others

Petitioner was denied disability pension. Record Officer for OIC Records informed the petitioner, vide his No. SR/13754573/56/DP dated

11th August, 1999, that the disability pension is not admissible to him. He was advised to prefer an appeal to the Government of India. Appeal

filed by the petitioner too has been rejected. The petitioner seeks a writ of certiorari for quashing the decision of respondents, whereby disability

claim of the petitioner has been rejected. A writ of mandamus commanding the respondents to pay disability pension, alongwith arrears and interest

at the rate of 12%, too, has been sought by the petitioner in this petition. Additionally, petitioner claims disability pension in terms of

Regulation181, as he has been invalided out as a young soldier.

Respondents in their reply submit that petitioner was admitted in 167 MH on 5th October 1996 and discharged on 5th April, 1997 as a case of

fracture Base of Proximal Phalanx (Rt) Little Finger"". They say that he was down graded to low medical category CEE (P) with effect from 5th

April, 1997 for another disease, i.e., ""CNS (INS) SEIZURE"". The respondents submit that the willingness of the petitioner to continue in service

was recommended to the higher authorities, but the Army Headquarters, vide letter No. A/74113/Inf6 (Pers) dated 22nd March 1996 and 14

JAK RIF letter No. 2021/4/A dated 11th July, 1997, rejected the request of the petitioner. The sanction of GOC, 15 Corps, for nonretention of

the petitioner, was ordered by letter No. 2242/3/A dated 18th August, 1997. The petitioner, respondents submit, was issued a show cause notice

vide letter No. 2021/4/A dated 13th June, 1998 by Commanding Officer 14 JAK RIF and was accordingly discharged in medical category CEE

(P) under Army Rule 13(3) item III (v) read with sub rule 2A of 1954 w.e.f. 31st August, 1998.

The respondents further state in the reply that Medical Board was held on 20th July, 1998 at 92 Base Hospital. The petitioner, according to the

respondents, was recommended with an invaliding disability (ID) at 30% for two years. According to the respondents, the claim of the petitioner

was considered and it was decided that the disability, viz, (I) Seizure Generalised; (2) Fracture Proximal Phalanx, is neither attributable to nor

aggravated by military service. It was further pointed out that the disease is constitutional in nature and not as a result of service. It is further stated

that disability was accepted at less that 20% vide CCDA (P) letter No. G3/95/35/499 dated 27th July, 1999. The petitioner has been paid invalid

gratuity of Rs. 30,313/ and DCRG of Rs. 24,629/

Shri Dharam Paul, learned counsel appearing for the petitioner, submits that rejection of the case of the petitioner for disability claim is in

violation of Regulation 181 of Pension Regulation for the Army, 1961. He further submits that rejection of invalid pension to the petitioner is

contrary to Regulation 173. He has relied upon two Judgments delivered by this Court These are: SWP No. 9440/1997, Ex. Spy. Manjit Singh v.

Union of India and Anr., reported as 1997 KLJ 179, and LPA (SW) No. 405 of 1997, Union of India v. Rattan Lal, reported as 1999 (2)

Service Cases Today 39. Shri Tashi Rabstan, learned counsel appearing for Union of India, has reiterated his submission, mentioned in the

objections filed by the Union of India, while submitting that disability pension is not payable to the petitioner.

I have considered the contentions of learned counsel appearing for the parties and also perused the records of the file and relevant provisions of

law touching the matter in controversy.

Before considering the pleas raised by learned counsel for the parties, it would be profitable to refer to Regulation 173 and Rule 14 (b) of the

Pension Regulations for the Army, 1961 and Rules framed thereunder, Regulations and Rules read thus:

Regulation

Primary conditions for the grant of disability Pension 173. Unless otherwise specifically provided a disability pension consisting of service element

and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or

aggravated by military service in nonbattle casualty and is assessed at 20 percent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II.

Rule ""14(b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was

made at the time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease

could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during

service.

The respondents have admitted in their reply on affidavit that the petitioner was adjudged by the Medical Board as having invaliding disability at

30%. The admission of the respondents reads thus:

The petitioner's release medical board was held on 20 July 98 at 92 Base Hospital by a duly constituted medical board. He was recommended

with an Invaliding Disability (ID) at 30% for 2 years. The copy of the same is annexed herewith as Annexure B.

In view of the admission of the respondents that the petitioner was adjudged with invaliding disability with 30%, Regulation 173 gets attracted

and the petitioner becomes entitled to pension if it is found that the disability is attributable to or aggravated by military service in nonbattled

casualty. In order to find out whether the disability is attributable to or aggravated by military service, resort may be had to Rule 14 (b) of the

Pension Rules, which raises a presumption that a disease which has led to an individual's discharge or death will ordinarily be deemed to have

arisen in service, if no note of it was made at the time of the individual's acceptance for military service. In the present case, as admitted by the

respondents, no such note was made at the time of petitioner's acceptance for military service that the was suffering from any such disease as he

was found to suffer at the time of his discharge. Shri Tashi Rabstan has not produce any such records to justify that the disability on the basis

whereof the petitioner has been invalided out of service, is not attributable to or aggravated by military service. In the absence of requisite records

and material, I am inclined to rely on Rule 14(b) to hold that the disability, with which the petitioner has been found to be suffering from, has arisen

in service and is attributed to military service.

Plea of Shri Tashi Rabstan that petitioner has suffered injury while on leave and, as such, his disease of CNS (INS) Seizure cannot be

attributable or aggravated by military service, is untenable because it is against facts. During leave, the petitioner was found to have a fracture base

of Proximal Phalanx (Rt) Little Finger and not CNS (INS) Seizure. The injury to the little finger cannot result in CNS (INS) Seizure. The

respondents have not produced any records or material to justify that CNS (INS) Seizure, with which the petitioner had been found by the

respondents to be suffering from, was a result of injury to the little finger. The plea of the respondents is unsustainable and, thus, cannot be

accepted.

The petitioner is, thus, held to be suffering from disability not less than 20% and is entitled to pension under Rules governing the grant or

disability pension.

Shri Tashi Rabstan has raised yet another objection that the disability of the petitioner, which had been assessed at 30% was only for two

years and thereafter he has been assessed to be having invalidity below 20%. In support, he has referred to AnnexureC, i.e., No. G3/95/35/499

dated 27th July, 1999, in which his disability beyond two years has been assessed as less than 20%. To what extent disability was less than 20%

was a query, which remained unanswered during the course of hearing. By reference to the document aforesaid, Shri Tashi submitted that it was

less than 0.1%. Even if one were to consider this shortfall in the disability of 20%, the shortfall was so negligible that it was required to be ignored

by the authorities operating the rules and regulations.

Pension Rules and Regulations governing the field, are required to be operated, interpreted and constructed in such a way that requisite

meaning, as contemplated by the framers of the Rules, is ascribed to carry the intention of the framers of the Rules and Regulations. It cannot be

countenanced that the Army Authorities had intended such a strict construction of the Rules, as is projected by Shri Tashi Rabstan.

Pension Rules and Regulations are required to be interpreted so that these Rules advance the cause for which these have been framed. The

golden thread which runs through these Rules and Regulations suggests providing of sustenance to those who, after having spent their lives for the

defence of the country, become otherwise invalid, to continue their resolve to serve the country, are provided means to sustain themselves.

The respondents have, thus, omitted to have a pragmatic view of the case of the petitioner, which has been rejected on grounds, which are

irrelevant and unjustified. That apart, there is another angle from which the case of the petitioner was required to be looked into. The petitioner has

been invalided out at a young age of 27 years. Regulation 181 of the Pension Regulations for the Army, 1961 prescribes that recruits and young

soldiers and Boys, shall be eligible for disability pension at the rates and under the conditions applicable to a sepoy of the lowest group. Petitioner's

case was, thus, required to be looked into from the stand point of Regulation 181 of the Pension Regulations too.

In this view of the matter, the order impugned in the writ petition is set aside and quashed. All those orders on the basis whereof the impugned

order has been issued, are against Rules and Regulations. These shall not, therefore, come in the way of the respondents in considering the case of

the petitioner for the grant of disability pension in view of what has been held hereinabove.

The petitioner, who has been denied disability pension, shall be entitled to interest on the arrears of pension. The respondents shall, there fore,

pay interest @ 6% per annum, too, to the petitioner while releasing the arrears of pension. The respondents are, therefore, commanded to

consider the grant of disability pension to the petitioner and pass appropriate order thereon, in the light of what has been held in this petition, within

a period of eight weeks from the date of this judgment. The arrears payable to the petitioner shall be paid alongwith interest @ 6% per annum.

The petition is, thus, allowed with costs assessed at Rs. 2,000/.