EX Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of mandamus directing the respondents to grant, release and continue service element of disability pension to the petitioner from the date it became due along with all the consequential relief by way of interest and exemplary damages.

(2.) Facts which are necessary for disposal of the instant petition may first be noticed. The petitioner was enrolled in the Army on 27.10.1948. He was invalided out of military service on 2.11.1958 due to the disease of 'Contractual Right Elbow (Hysterical) 576'. The disease of the petitioner was held to be attributable to military service and at the time of invalidation the disability was more than 20% as per assessment made by the Medical Board. The petitioner was granted disability pension consisting of service element and disability element for 20% disability from 3.11.1958 to 14.9.1960. Thereafter the disability pension of the petitioner was not extended as the CCDA (P) reduced the disability percentage of the petitioner at less than 20%. The respondents also stopped the service element of disability pension of the petitioner w.e.f. 7.11.1949. The petitioner represented the respondents for grant of service element of disability pension on the ground that he had rendered more than 10 years service and his original pension carried the same. Despite a protracted correspondence the respondents have not released the service element of pension to the petitioner.

(3.) In the written statement the respondents have taken the stand that since the petitioner has not completed 10 years minimum service as was required before 1.3.1968, therefore, he is not entitled for grant of service element of pension. It has been asserted that the petitioner has served in the Army in two spells of service i.e. firstly from 27.10.1948 to 31.3.1951 (2 years and 155 days excluding 1 day non-qualifying service) and secondly from 23.11.1951 to 1.11.1958 (6 years and 297 days excluding 47 days non-qualifying service). According to the respondents the total service in both the spells comes to 9 years and 87 days. However, it has not been denied that the disability of the petitioner was not attributable or aggravated by military service.