POKHRAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner seeks the issuance of a writ in the nature of Certiorari quashing the order dated 19.7.1991 (Annexure P -12) whereby the claim of the petitioner for grant of higher rate of service element of disability pension after counting of service from the date of commission to the date of release had been rejected on the ground that he had exercised option under Para 1(a) of the Defence Ministry's letter No. 212413/74/Pen -C dated 7.7.1975. A prayer is also made for the issuance of a writ in the nature of Mandamus directing the respondents to count the entire period of commission service rendered by the petitioner in the Indian Army from 30.8.1964 to 15.7.1970, as qualifying service for the purpose of grant of service element.

(2.) THE undisputed facts are that the petitioner was enrolled in the Indian Army on 13.1.1953. Thereafter, on 30.8.1964, he was granted Emergency Commission. He was released from the Indian Army in the rank of Captain on 15.7.1970. During the period between 30.8.1964 and 15.7.1970, the petitioner suffered disability. He had become 70% deaf. He rendered Full Pay Commission Service from 30.8.1964 to 16.7.1970. He was granted pension for other rank service under AI/6/S/65. He was, however, not granted disability pension of Commission Rank. The petitioner made number of representations for the grant of disability pension. When the same was not allowed, the petitioner filed C.W.P. No. 505 of 1973. The aforesaid writ petition was admitted. During the pendency of the writ petition, the Government of India took a decision dated 13.11.1975 that disability suffered by the petitioner should be regarded as attributable to Military Service. The degree of disability was assessed at 70% from 15.7.1972 to 16.4.1983. During the pendency of the writ petition, C.M. No. 3597 of 1976 was filed by the respondents, in which it has been stated that the entire relief has been given to the petitioner and the writ petition has become infructuous. Consequently, the writ petition was disposed of on 16.11.1976, as having become infructuous. By letter dated 30.10.1976, the respondents released the Disability Pension and cancelled the previous P.P.O. and adjusted the amount. The petitioner continues to be in receipt of the Disability Pension. However, the petitioner was aggrieved by the action of the respondents as the Disability Pension had been granted calculating the service element of the disability taking into account 2/3rd service as rank service and commission service from 30.8.1964 to 28.7.1965. The entire service from 29.4.1965 to 15.7.1970 had been ignored. The petitioner again made representation and claimed that he is entitled to disability pension on the basis of the entire service till his release. When the claim of the petitioner was rejected, the present writ petition was filed.

(3.) MR . Sehgal, learned counsel for the petitioner submits that the entire controversy involved in the writ petition is squarely covered by a judgment of this Court rendered in the case of Ex. Capt. Surinder Pal Singh Gondara v. Union of India and Anr., 1989(3) S.L.R. 711. Against the aforesaid judgment, the respondents filed L.P.A. No. 1018 of 1988 which was dismissed on 4.10.1988.