NB SUB RAVINDER KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has preferred this writ petition under Article 226 of the Constitution seeking issuance of a writ in the nature of mandamus against the respondents to grant him disability pension at the rate applicable to Nb.Subedar ( Junior Commissioned Officer) as per Regulation 180 of Pension Regulations for the Army 1961 (Part-I) ( for short 'the Regulations). He has also prayed for the grant of disability pension at 50% of the rates of disability pension as per para 7.2 of the Policy of Government of India vide letter No. 1(2)/97/(1)(Pen-1) dated 31.1.2001.

(2.) The undisputed facts are that the petitioner was enrolled in the Army on 28.1.1975. In January 1992 he was promoted to the rank of Havildar (Other Rank). On 10.5.1991 he sustained injury i.e. "FRACTURE LATEROIS POSTERIOR MELLOLOUS (LT) ANKLE" while serving with Head Quarters 7 Artillery Brigade. He was placed in low medical category BEE (Temporary) for 6/12 years from 24.10.1991. He was promoted to the rank of Nb.Subedar ( JCO) w.e.f. 1.1.1992. On review he was placed in low medical category BEE (Permanent) from 7.1.1993, as such he was discharged from service on 31.7.1993. He was granted service pension from 1.8.1993 for life by Chief Controller of Defence (Pensions), Allahabad for 18 years, 6 months and 3 days of service vide letter No. 7 (963)/2000/D (Pen-A & AC) dated 23.3.2001 (Annexure P-2). As the petitioner had been placed in low medical category at the time of discharge, he was brought before the Release Medical Board and the Board vide its finding dated 5.7.1993 described the disability as attributable to military service and the degree of disability was assessed for 2 years. Thereafter, he was granted temporary disability pension applicable to the rank of Havildar (OR) w.e.f. 1.10.1993 to 21.6.1998. The petitioner was again brought before the Re-Survey Medical Board for continuation of his disability pension which was assessed as 20% w.e.f. 22.6.1998. The degree of disablement was assessed by Re-Survey Medical Board as 20% for life w.e.f. 5.10.1998 as is evident from letter dated 23.3.2001 (Annexure P-2).

(3.) The petitioner was granted disability pension at the rate of Rs. 90/- per month from 5.10.1998 for life, which is applicable for the rank of Havildar (OR) based on 20% disability. As the petitioner had been granted disability pension at the rate applicable to Havildar (OR) and not at the rate applicable to Nb.Subedar (JCO), the rank which he held at the time of retirement, he made a representation, which was rejected by A.S.C. Record (South ) by letter dated 10.9.2003 (Annexure P-3) on the ground that he was Havildar (OR) at the time of sustaining the injury. The petitioner had placed his case before Defence Pension Adalat for the grant of disability pension applicable to Nb.Subedar (JCO) and also for the grant of disability pension at the rate of 50% instead of 20%. The Defence Pension Adalat sent the case of the petitioner to A.S.C. Records (South) for action but his claim was rejected vide letter dated 14.1.2005 (Annexure P-4). The validity of order dated 14.1.2005 (Annexure P-4) has been challenged. The impugned order rejecting the claim of the petitioner reads as follows: