UNION OF INDIA AND OTHERS Vs. JAGGAR SINGH

JUDGEMENT

(1.) The instant appeal by the Union of India filed under Clause X of the Letters Patent is directed against the judgment dated 11.05.2009 rendered by the learned Single Judge while allowing C.W.P. No. 15227 of 2007. The learned Single Judge has held that the writ petitioner-respondent is entitled to disability pension after recording the finding that the disability suffered by him is directly attributable to military service. The learned Single Judge has also rejected the ground for declining the disability pension by the appellant merely because he was discharged by invoking the provisions of Rule 13(3), Item III (v) of the Army Rules, 1954.

(2.) The writ petitioner-respondent was enrolled in the Army on 28.03.1988. He sustained an injury on account of an Improvised Explosive Device Blast (IED) on 11.10.1995 when he was serving 19 RR (Sikh LI) in Counter Insurgency Operation (Jammu and Kashmir). The blast resulted in Compound Fracture Lower Shaft Tibia Fibula (Left) and was regarded as battle casualty. He was placed in low medical category CEE (Temporary) w.e.f. 16.02.1996 by a Medical Board at Command Hospital, Chandimandir. On review of his medical condition, he was placed in low medical category BEE (Permanent) w.e.f. 16.02.1997 by a Medical Board held at Military Hospital, Fatehgarh and continued to remain in the aforesaid category, even on subsequent review at Military Hospital, Jalandhar Cantt. The writ petitioner-respondent was discharged from service on 11.08.2000 under Rule 13(3), Item III (v) of the Army Rules on the ground that his services were no longer required as he was an inefficient soldier. In the record, there were 9 red ink entries and 3 black entries. After show cause notice on 27.04.2000 and his reply, the Commander 350 Infantry Brigade sanctioned his discharge on disciplinary ground. The case of the writ petitioner-respondent was not even considered for grant of disability pension on the ground that he has been discharged and his case has been rejected by PCDA(P), Allahabad by order dated 08.10.2002 on the ground that he has been discharged from service being an inefficient person.

(3.) The learned Single Judge has placed reliance on Rules 173 and 173-A of the Pension Rules for the Army, 1961 (Part-I), the learned Single Judge has considered the aforesaid Regulations along with letter dated 20.07.2006 (Annexure R1) and concluded that the Regulations provided for grant of disability pension, who has been invalidated out of service on account of disability, which is attributable to or aggravated by military service in battle casualty. The learned Single Judge has placed reliance on a Division Bench judgment of this Court in Naik Amrik Singh v. Union of India and others, 2008 2 SCT 432. In that case also there was discharge of the officer and his claim for disability pension was rejected, although disability was attributable or aggravated on account of military service. He had suffered 20% disability for life due to Gun Shot wound during enemy action in Kargil Sector in operation Rakshak. The Division Bench held that merely because he was discharged would result into forfeiture of his claim for disability pension. A similar view has been taken in the case of Mahavir Singh Narwal v. Union of India and another, in C.W.P. No. 2967 of 1989 decided on 05.05.2004. The SLP against the aforesaid view filed by the Union of India has also been dismissed by Hon'ble the Supreme Court.