Shiv Das vs Union of India (UOI) and Others

Mohinder Pal, J.—A Division Bench of this Court earlier dismissed this writ petition vide order dated August 22, 2005, on the ground that it is highly belated. The petitioner approached the Hon''ble Supreme Court by way of filing SLP (Civil) No. 881 of 2006. Vide order dated January 18, 2007, the Hon''ble Supreme Court remitted the matter to this Court to hear it on merits. This is how we are seized of the matter.

The petitioner was enrolled in Army Medical Corps, Lucknow in September, 1965. In 1982, he suffered from medical problem of weak eye-sight. He became almost 80% disabled despite getting the treatment. Therefore, he was placed under low medical category ''EEE'' permanent by the Medical Board. He was invalidated out of service on February 20, 1983 on account of ''Bilateral Maculopathy'' after rendering 17 years and 143 days of qualifying service. He was granted service element of pension with effect from February 21, 1983. The petitioner claimed disability pension for the 80% disability. It was rejected by the Chief Controller of Defence Accounts (Pension), Allahabad vide letter dated May 06, 1983, on the ground that the disability from which the petitioner was suffering had been viewed as neither attributable to nor aggravated by military service. The petitioner claims that he had filed appeal before the Appellate Authority, but no reply was given. Since there was no intimation regarding any order in the appeal, he filed the present writ petition. His prayer is for grant of disability pension.

In the reply filed by the respondents, it is pleaded that "Invalidating Board was held at Base Hospital, Lucknow, on 23.11.1982 and as per opinion of the Medical Board the disability of the petitioner was found as not attributable to but aggravated by military service as the disability was constitutional in nature and the factor of aggravation was long military service which was assessed 80% for two years". It is further stated that the appeal filed by the petitioner against the order of the Chief Controller of Defence Accounts (Pension), Allahabad, was considered by the Ministry of Defence and the same was rejected vide order dated August 21, 1985.

We have heard Ms. Satpreet K. Grewal, Advocate, appearing for the petitioner and Ms. Renu Bala Sharma, Central Government Standing Counsel, appearing for the respondents and have gone through the records of the case.

The petitioner was invalidated out of military service on account of 80% disability due to weak eye-sight. In the written statement, it is admitted by the respondents that the disability of the petitioner was aggravated by military service as it was constitutional in nature and the factor of aggravation was long military service.

Regulation 179 of the Pension Regulations for the Army, 1961 (Part-1) (for short ''the Pension Regulations'') deals with the controversy at hand. It reads as under:

An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 percent or more, and service element if the degree of disability is less than 20 per cent.

The service pension/service gratuity, if already sanctioned and paid, shall be adjusted against the disability pension/service element, as the case may be.

The disability element referred to in Clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date of which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease.

Note: xx xx xx xx.

A perusal of the above provisions of Pension Regulation 179 leaves no room for doubt that the petitioner having been invalidated out of service after rendering 17 years and 143 days service and his disability is admittedly aggravated by military service as recorded by Service Medical Authorities, he is entitled for the disability pension. Though in the written statement, it has been thrice admitted by the respondents that as per the opinion of the Invalidating Medical Board, the disability was aggravated due to long military service i.e. one, in the preliminary objections, two, in reply to para No. 4 of the writ statement and, three, in reply to para No. 13 of the writ petition, yet the claim of disability pension of the petitioner has not been admitted. Pension Regulation 179 states in no uncertain terms that "an individual retired/discharged on completion or tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective) of their period of engagement), if found suffering from a disability attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalidated out of service and shall be granted disability pension from the date of retirement."

Thus, the disability of the petitioner having been aggravated by military service, he is entitled to disability pension. Before concluding, it is also worth-mentioning that the petitioner had started having dimness of vision since 1974 i.e. after nine years of military service and ultimately he was placed in low medical category ''EEE'' permanent, as stated by the respondents in reply to para No. 3 of the writ petition; meaning thereby the aggravation of disability was certainly due to long military service.

Resultantly, the petitioner is held entitled to 80% disability pension. His pension will be calculated as per the rates fixed by the Central Government from time to time from the date the petitioner was invalidated out of service i.e. with effect from February 20, 1983. However, arrears of pension, so calculated, shall be restricted to three years preceding the filing of this writ petition. The respondents are directed to disburse the arrears to the petitioner within three months from the date of receipt of a copy of this order. In case the arrears are not disbursed within the said period, the entire arrears will carry interest at the rate of nine per cent per annum from the date of expiry of three months till the date of payment.

This writ petition is allowed in the above terms with no order as to costs.

Sd/- Hemant Gupta, J.