CAPTAIN MOHAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) APPELLANT who was the writ petitioner has filed this appeal under clause 10 of the Letters Patent against the order dated 3.7.1995 passed in M.P. No. 3837/88 by Shri A.K. Mathur, J. as he then was.

(2.) THE appellant was recruited as sepoy in the Army in the Corps of Electrical and Mechanical Engineers on 20th February 1960, and was allotted army No. 7041368. Due to his meritorious service, he reached to the rank of Captain. On a day of November, 1977, during lunch, he became unconscious. On Medical examination he was found a case of Sinus Bready Cardia for which he was treated and was discharged in the year 1979 as found fit a discharge all type of duties, but, was recommended for advice of Army Consultant MH (CTC) Pune. There, he was declared a case of Pulmonary Tuberculosis and ATT (Anti -Tuberculosis treatment) was started. After treatment and discharge, he was placed in low medical category. He was then admitted to MH Jabalpur on 5th July, 1981 for medical re -categorization, where he was opined a relapse case of Pul. T.B. Hence was transferred to MH (CTC) Pune for further treatment in July 1981, where sputum was found positive and ESR High, The appellant was declared as 'Relapse case of Pul T.B., hence, was brought before the Final Invalid Medical Board of Officers, where the appellant was declared permanently unfit for any form of military service. On the report, a notice dated 5.8.1981 was issued by Officer Commanding under sub -rule (2) of Rule 15 -A of the Army Rules 1954 (for short the Rules'), which was acknowledged by the appellant. The appellant did not prefer any petition within 15 days, the time prescribed under sub -rule (2) of Rule 15 -A against the finding of the Medical Board and at the bottom gave a note that he did not wish to prefer any petition against the finding of the Medical Board. Therefore a communication, was sent vide Annexure -I dated 30.10.1981 by the officer commanding invalidating the appellant from military service w.e.f. 30.10.81 (AN). The appellant on that was granted 100% disablement pension in accordance with regulation 48 of Pension Regulations for the Army 1961 Part -I (for short the 'Regulations'). Thereafter, the appellant was asked alter two years to appear for re -examination under regulation 60 (b). The appellants' disability was found to be reduced from 100% to 80% vide order dt. 19.9.1984 Annexure - N to the petition. Again after period of two years, the appellant was re -examined in view of Regulation 60 (b) and on re -examination the appellant's invalidity was found to be 60% vide order dated 5.11.1986 - Annexure -P to the petition. Thereafter, on 17.5.1988, Accounts Officer (Pension) issued a memo dated 17.8.1988 to appear before the Medical Board at Military Hospital, Jabalpur for his re -examination and re -fixation of pension according to disability, but, the appellant did not appear.

(3.) THE appellant challenged the order of retirement with retrospective effect and also the order of Medical Board of suspending the disability pension by the writ petition. The writ Court after considering the contentions documents and the Rule 15 -A, observed that first of all, the order was passed by the Central Government and subsequently, it appears that in view of the Bhatnagar's case (supra) it was realised that the order for discharge has to be passed in terms of Rule 15 -A of the Rules therefore, the papers were resubmitted for the approval of the Chief of Army staff and after his approval the order discharging the appellant from service was issued on 25.11.1986. In view of this, the writ Court observed that the appellant will get pension from 25.11.1986 and will be treated notionally continued in service till 25.11.1986 instead of his discharge from service from 30.10.1981.