Nirmal Singh vs Union of India

R.L. Anand, J.—Shri Nirmal Singh has filed the present petition under Articles 226/227 of the Constitution of India praying that a writ of mandamus be issued against the respondents directing them to release him the benefit of disability pension from 25.11.1974 onwards besides interest.

The case set up by the petitioner is that he was born on 26,6.1954. He was enrolled in the Indian Army on 9.7.1974. He was invalidated out of military service and was placed in medical category "EEE" with 60% disability on 25.11.1974. His claim for disability pension was rejected on the ground that disability suffered by the petitioner is not attributable to the army service. According to the petitioner, this opinion was formulated by the respondent on 29.3.1975. The petitioner served a notice on 22.2.1996 but to no effect. Hence the present writ petition.

Notice of the writ petition was given to the respondents and the stand of the respondents is that the petitioner has not adopted the equally efficacious remedy available to him under the departmental rules. He has not filed appeal before the competent authority. Therefore, this writ is not legally maintainable. It was also averred that the disability suffered by the petitioner is not attributable to the army service and there is an inordinate delay in filing the present writ petition.

I have heard the learned counsel for the parties and with their assistance have gone through the record of the case.

The first submission raised by the learned counsel for the respondents was that petitioner has not availed the departmental remedy and, therefore, the present writ petition is not legally maintainable.

I do not subscribe to the argument raised by the learned counsel for the respondents. The peiitioner has challenged the order dated 29.3.1975 by praying that the authorities had no jurisdiction to decline his request for the grant of disability pension. In these circumstances, when this very action of the respondent authorities has been challenged by the petitioner, he can independently come to the Court without availing the departmental remedy, which is only an alternative remedy and not only efficacious remedy.

The second contention raised by the learned counsel for the respondent is liable to be accepted in part. If the Court comes to the conclusion that the petitioner is entitled to the benefit of disability pension he can be compensated only for 38 months prior to the date of the filing of the writ petition and I am inclined to give the relief to the petitioner in part for 38 months by allowing this writ petition, because the case of the petitioner was rejected in the year 1975 and he has filed the present petition in the year 1996. He gave the notice in February 1996 after a lapse of 21 years and in these circumstances the relief beyond 38 months cannot be granted.

The most controversial point in this writ petition which is sought to be adjudicated in this petition is whether the disease is attributable to the army service or not ?

Annexure P-1 is the discharge certificate of the petitioner. According to the certificate the petitioner was discharged by the order of the Commandant Bombay Engineer Group on account of medical ground. The petitioner suffered Grandmal Seizure which is an epilepsy disease. The disability suffered by the petitioner has been assessed at 60% and the petitioner was placed in medical category "EEE". When the petitioner was recruited in the Indian Army, he was found hale and hearty. No disability of the kind was ever noticed at the time of the entry of the petitioner into service. The petitioner fell down from Army tank and he sustained injuries on the head and he became unconscious and resultantly he was declared unfit to serve the army. In these circumstances, it can be held that the disease is attributable to the army service. As per Regulation 181 of the Pension Regulations Part-I, even the 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.

In this view of the matter, this writ petition is allowed in part and the directions are given to the respondents to release the benefit of disability pension to the petitioner as per Regulation 173 read with Regulation 183 within three months from the date of the receipt of the copy of this order failing which the petitioner shall also be entitled to interest at the rate of 12%. The petitioner shall appear before the Resurvey Medical Board as and when called upon the respondent authorities. There shall be no order as to costs.

It is hereby clarified that the benefit of arrears only for 38 months on account of the disability pension shall be given to the petitioner according to rules.

Petition partly allowed.