SUNIL KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Issue rule. Pleadings are complete. The petition has been heard for final disposal with consent.

(2.) The petitioner was enrolled in the Indian Army as a Signalman. In due course he rose to hold the rank of a Lansnaik. In May, 1995 he was discharged from service before fulfilling the terms of his enrollment on compassionate grounds at his own request. A Release Medical Board held at the time of discharge of the petitioner opined that he was suffering from what was described as ?Generalized Seizure?. The Board assessed the disability of the petitioner at 20% but held that the disease was neither attributable to nor aggravated by military service. Two years after his discharge from Army service, the petitioner claimed payment of service and disability pension which was rejected on the ground that since the petitioner had been discharged at his own request the policy governing such discharge did not envisage the payment of any pension. Aggrieved, the petitioner filed a Civil Writ Petition bearing No. 1902/1998 in this Court which was together with a bunch of other similar cases disposed of by a Division Bench of this Court by an order dated 6.3.2003 with certain directions. The respondents appear to have examined the petitioner's claim afresh in the light of the said directions and rejected the same once again in terms of communication dated 20.3.2004 The respondents held that since the petitioner had been discharged from service on compassionate grounds at his own request, he was not entitled to the payment of any pension. According to the respondents, the petitioner had not been invalidated out of service on account of his medical condition which alone could entitle him to pension. Aggrieved of the said rejection the petitioner has filed the present writ petition in which he has prayed for a declaration to the effect that the disease and consequent disability suffered by him had arisen out of military service was attributable to military service and aggravated by such service. A further declaration that the petitioner was invalidated out of service on medical grounds in terms of Army Order 46/ 80 r/w Government of India letter dated 10.5.1977 and is, therefore, entitled to the benefit of service pension and disability pension has also been prayed for. A certiorari setting aside the impugned communication rejecting the petitioner's claim is the only other relief which the petitioner has prayed for apart from claiming benefits of pension retrospectively from the date he was discharged with interest @ 12% p.a. The respondents have filed a counter affidavit in which they have once again contended that the discharge of the petitioner in the instant case was on account of a request made by him and could not, therefore, be deemed to be an invalidation so as to entitle the petitioner to the grant of any service or disability pension. It is also contended that the medical board held at the time of his release from service had clearly opined that the disease from which the petitioner suffered was neither attributable to nor aggravated by military service. Even if the discharge was deemed to be a case of invalidation, since the disease was not attributable to nor aggravated by military service there was no question of paying any pension to the petitioner.

(3.) Mr.Bareja learned counsel for the petitioner made a two fold submission before us. Firstly, he contended that since the request for discharge, a copy thereof has been produced by the respondents as Annexure R-3, clearly mentioned his medical condition as the ground for his discharge, any discharge pursuant to such a request must be deemed to be a discharge on medical grounds entitling the petitioner to payment of service and disability pension. He placed reliance upon in support of that submission upon a Division Bench decision of this court in the case of Subedar Baljor Singh vs. Union of India and Ors. 65(1997)DLT 872 (DB).