KEHAR SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This petition filed under Article 226 of the Constitution prays for quashing orders dated 6.9.2001 (P-2), 9.11.2002 (P-23), 1.3.2001 (P-24), and 16.5.2002 (P-5) ordering refund of the service element paid to the petitioner from 22.5.1990 to 31.1.2001, amounting to Rs. 1,49,779/-. A further prayer has been made for restraining the respondents from recovering the amount of Rs. 1,49,779/- from the petitioner and directing them to continue paying the service element of pension to the petitioner w.e.f. 1.2.2001 onward for life and to bring the petitioner before the Re-survey Medical Board/Appellate Medical Board in order to assess the percentage of his disability and also grant disability element of pension at the rate of 50% as per the 5th Pay Commission's recommendations and to revise the same from (sic).

(2.) Few facts may first be noticed. The petitioner was enrolled in the Indian Army on 17.12.1953. While in service, he suffered from 'Chronic Folliclate Both Legs'. On 6.7.1954, the petitioner was invalidated out of the military service after rendering 1 year 224 days service. The disability/disease of the petitioner was held to be attributable to military service and he was granted disability pension consisting of service element and disability element firstly from 6.8.1953 to 6.7.1954 for one year vide PPO No. D/4145/55, which was extended from time to time on the basis of the Re-survey Medical Board, which is as follows :- <FRM>JUDGEMENT_206_LAWS(P&H)9_2006.htm</FRM>

(3.) Disability pension consisting of service element and disability element was continuously granted to the petitioner for the period from 6.8.1953 to 22.5.1990 except from 5.4.1975 to 4.4.1977 when his disability was assessed less than 20%. After 23.5.1990 onward the disability of the petitioner was assessed as static and the Medical Board also held that the percentage of the disability of the petitioner is 20% but the Principal Controller of Defence Accounts Pension, Allahabad reduced the same to less than 20% i.e. 15% to 19%. In this manner, the disability pension of the petitioner was discontinued w.e.f. 23.5.1990 onwards. However, the petitioner was continuously paid the service element of pension. The petitioner preferred an appeal to the Secretary, Ministry of Defence on 7.8.1990 and sent a reminder on 4.3.1991 (P-3 and P-4 respectively). The petitioner also approached the respondent authorities for holding of Resurvey Medical Board vide representations dated 4.8.1998 and 17.8.1998 (P-5 and P-6 respectively). Without deciding the appeal and representations of the petitioner, the respondents vide the impugned orders raised a demand for recovery of an amount of Rs. 1,49,779/- by holding that the petitioner is not eligible to get even service element. The aforementioned amount is sought to be recovered on account of payment made towards service element of disability pension from 22.5.1990 to 31.1.2001 and the petitioner was asked to deposit the said amount by way of demand draft in the office of the respondents. The petitioner sent a notice of demand on 27.3.2003 to the respondents, however, the same has been rejected vide order dated 9.5.2003 (P-27) as well as 17.5.2003 (P-28).