Krishan Chander vs Union of India

R.L. Anand, J.—Shri Krishan Chander petitioner has filed the present writ petition under Articles 226/227 of the Constitution of India against the respondent and he has prayed that a writ in the nature of certiorari be issued by quashing the orders Annexures P.3 and P.5 vide which the prayer of the petitioner for the grant of disability pension was declined with effect from 18.2.1980.

The case set up by the petitioner is that he was enrolled in the Indian Navy on 10.8.1968 and he had been sailing and performing his duties on the different ships. He was released from Naval services on 18.2.1980 on medical grounds. The medical category of the petitioner at the time of release was S5A5. The petitioner submitted that number of persons who were released on medical grounds were granted the benefit of disability pension, whereas, he has been deprived of this benefit. He made a representation to the respondent-authorities to grant him disability pension vide Annexure P-2.

The grouse of the petitioner is that he was fully fit at the time of joining the service. He was not suffering from any disease but he has been thrown out from the service on the ground that he was suffering from epilepsy since childhood. The petitioner disputes this aspect of the case propounded by the respondents. According to him, the disease suffered by him is attributable to the army service and, therefore, he is entitled to the benefit of disability pension.

The notice of the writ petition was given to the respondents who filed the reply and denied the allegations. According to the respondents, the petitioner was discharged with effect from 18.2.1980 and his case for disability pension was rejected on 17.1.1981. The petitioner was given the opportunity to file an appeal within six months but he failed to do so. On merits, the stand of the respondents is that the disease suffered by the petitioner, is not attributable to the Army service and, therefore, he is not entitled to the benefit of disability pension. As per the respondents, the disease epilepsy is one which may develop at any age. The petitioner was examined by a duly constituted Medical Board before he was invalidated out of service. With this defence, respondents prayed for the dismissal of the writ petition.

I have heard Shri Rajneesh Bansal, learned counsel appearing on behalf of the petitioner and Shri S.K. Sharma. learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case.

Two points have arisen for determination in this writ petition : firstly whether the present writ petition can be thrown out on the ground of delay and laches. It was the case set up by the respondents that the petitioner was discharged from the naval services with effect from 18.2.1980 and his case for disability pension was rejected on 17.1.1981 and the present petition has been filed in the year 1992. This plea of the respondents cannot succeed for the simple reason that right of pension is a recurring cause of action. At the most the petitioner will be entitled to the benefit of disability pension for a period of 38 months prior to the date of the filing of the writ petition. On the ground of delay, this writ petition cannot be dismissed.

The second point for determination would be whether the disease "epilepsy" can be said to be attrib- able to the Army service or not. In the present writ petition, learned counsel for the petitioner relied upon* a judgment passed by Hon''ble Single Bench in Civil. Writ Petition No. 771 of 1988 Ex- Hav/CIk Wishwa Nath v. Union of India and others, decided on 1.8.1991. The respondents denied the benefit of the disability pension to the petitioner on the plea that the aforesaid judgment is subject matter of LPA. The learned counsel for the petitioner now submits that the LPA filed by the Union of India against the aforesaid judgment has been disposed of on 4.10.1988 by the Hon''ble Division Bench and it was held that "disease of "epilepsy" is attributable to the military service and can be contracted during the military service.

In this view of the matter, this Court has no difficulty, to hold that the disease of "epilepsy" is attributable to the army service. Therefore, this writ petition is hereby disposed of by giving directions to the respondent- authorities to constitute a Medical Board and call the petitioner to appear before it and if the disability of the petitioner is found at 20% or more, he shall be granted the benefit of disability pension for a period of 38 months immediately prior to the filing of the writ petition. The Medical Board shall be constituted by the respondent-authorities, if not already constituted, within two months from the receipt of the copy of this order.

Order accordingly.