HAV ROHTAS Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was enrolled as a Sepoy in the Territorial Army on 7th June, 1993. He served the Force with sincerity and to the satisfaction of all concerned. The petitioner claims to have served in counter-insurgency areas in the Valley from January, 1995 to August, 2000. Keeping in view his hard work and dedication to duty, he was promoted to the rank of Havildar. The petitioner applied and the respondents granted to him 15 days' leave as part of his Annual Leave w.e.f. 06th August, 2001 to 20th August, 2001 by his Commanding Officer and he was permitted to go home. He was issued railway warrant for to and fro journey from Jullundhar, duty station to Julana, the nearest railway station to his place of residence. The village of the petitioner, i.e., Farmana Khas was about 10 kms from the Julana railway station by road with journey by private conveyance for which road mileage is available. After the expiry of the leave, the petitioner was returning on 20th August, 2001 to join his duties and was travelling by a civil jeep to go from the village to the nearest railway station, Julana. The vehicle met with an accident at 0800 hrs and the petitioner sustained injuries to his spinal chord which was diagnosed as 'Compression Fracture LV-I?. The petitioner was evacuated and admitted to Base Hospital Delhi Cantt. and admitted there on the same day, i.e., 20th August, 2001. After prolonged treatment, he was placed in medical category P-2 (Temporary) for six months which was subsequently upgraded to P-2 (Permanent) w.e.f. 10th July, 2002.

(2.) According to the petitioner, no Court of Inquiry was convened in compliance of the Regulation 520 of the Regulations for Army. The Commanding Officer, however, formed an opinion that the injury of the petitioner was not attributable to military service in the Injury Report at the place meant for taking such a decision. The petitioner was brought before the Release Medical Board on 16th October, 2002 as it was decided by the Commanding Officer to discharge the petitioner from service prematurely on medical ground under Rule 14 (b) (iv) of the Territorial Army Rules. Though the Medical Board proceedings were not provided to the petitioner, he claims to have learnt that the disability was assessed at 30 per cent. The factor of attributability was never determined in accordance with law and in terms of Government of India Notification No.1 (2)/97/DC (Pen-C) dated 7th February, 2001. As no Court of Inquiry was conducted, the case which was forwarded to the PCDA (P) Allahabad for grant of disability pension to the petitioner was declined and the petitioner was never granted disability pension as injury, according to the respondent, was not attributable to military service. After a long period of 3 years, the petitioner was informed by respondent No.3 that his disability pension was rejected by PCDA (P) Allahabad vide order no.G3/2005/2049/VIII dated 8th July, 2005. It was on the ground that his disability 'Compression Fracture LV-I? was neither attributable to nor aggravated by military service and was constitutional in nature and not related to military service.

(3.) Aggrieved from the said order the petitioner preferred an appeal under Rule 23 of the Pension Regulations on 30th September 2005 which has not been disposed of by the respondent for a considerable time resulting in filing of the present Petition. Despite the grant of opportunities, the respondents have failed to file counter affidavit.