HOSHIAR SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This petition filed under Article 226 of the Constitution prays for quashing orders dated 29.4.1974 (P-6), 5.8.1975 (P-13), 7.3.1986 (P-22), 22.5.1990 (P-25), 5.3.1992 (P-26), 8.9.1992 (P-27) and 10.12.2004 (P-33). The aforementioned orders in nutshell have denied the petitioner service element of pension on the ground that he has rendered service for a period of 9 years 263 days, which fell short of 10 years required by the Pension Regulations for the Army, 1961, and therefore, he was not entitled to the grant of service element of disability pension. Accordingly a prayer has been made for release of service element of disability pension from 22.03.1964 to 03.01.1974, It has still further been prayed that the direction be issued for release of disability pension/service element of pension from 3.1.1974 onwards or from any other suitable date along with interest @ 18% p.a. and all other consequential benefits.

(2.) Brief facts of the case necessary for disposal of the controversy raised in the petition are that the petitioner was enrolled in the Indian Army on 28.12.1953. He developed the disease of Neurotic Depressive Reaction, which is attributable to military service. On account of the aforementioned disease, he was forced to remain absent without leave for 13 days from 17.9.1963 to 29.9.1963. From 30.9.1963 to 31.3.1964, the petitioner remained admitted in the Military Hospital, Delhi Cantt. He was boarded out of service as his disability was assessed to the extent of 60% after having been placed in lower medical category 'EEE' permanent. He was issued a Certificate of Service on 6.3.1964, which shows the date of his discharge as 21.3.1964. In clause 4 of the certificate, it has been clarified that the petitioner was discharged on the order of the Commandant, the Rajputana Rifles Regiment Centre, on medical grounds after serving for 10 years 0 months 85 days. The certificate further shows that he has been awarded Sainya Seva Medal with clasp J&K as he has rendered War service showing theatres of operations in J&K from 10.3.1955 to 24.8.1956 and 10.8.1959 to 25.1.1963. A number of other achievements have also been mentioned in the certificate. He was awarded disability pension with effect from 22.3.1964 to 3.1.1974. But service element of disability pension was not given to him by the respondent authorities for which he made representations on 20.2.1967 (P-2) and 28.1.1970 (P-3).

(3.) The disability pension granted to the petitioner was discontinued on 4.1.1974 as the disability is stated to have reduced to less than 20%. In that regard, a reference has been made to the discharge slip dated 3.1.1974 (P-5) issued by the Military Hospital, Delhi Cantt., where the petitioner remained admitted for about one week. It is pertinent to note that even in the discharge slip it is indicated at Serial No. 5 that the petitioner has rendered 10 years service. On 29.4.1974, another certificate was issued to the petitioner (P-6) stating that he was not entitled to any disability pension with effect from 3.1.1974 as his invalidated disease has been assessed at less than 20%. The petitioner has sought the quashing of the aforementioned orders. He has made numerous representations including the ones made on 5.10.1974 (P-7) and 28.1.1974 (P-8). As a consequence his case was examined for grant of service element of pension, as is evident from the letter dated 10.10.1974 (P-9). In that letter also it has been categorically recorded that the petitioner rendered 10 years 85 days servics and, therefore, his case was recommended for grant of service element of pension from 3.1.1974 for life by referring to Regulation 186/167 of the Pension Regulation for the Army, 1961, Part-II. The papers were sent to Defence Pension Disbursing Officer-respondent No. 2. The petitioner was intimated on 31.10.1974 that the matter was pending before respondent No. 2 i.e., Controller Defence Accounts (Pension) and the decision was to be conveyed as and when arrived at (P-10). The Record Officer-respondent No. 3 again sent a reminder to respondent No. 2 on 13.2.1975. However, respondent No. 2 on 23.4.1975, intimated to the petitioner that his papers were not received and a copy was asked for processing. However, on 5.8.1975 (P-13), the petitioner was informed that the service element of pension was not admissible to him under the rules as his qualifying service was calculated to be 9 years 263 days. The aforementioned decision was taken on the basis of forfeiture of pay and allowances for the period from 17.9.1963 to 21.3.1964. It was considered as non-qualifying service. The petitioner again made numerous representations in the form of An-nexures P-14, P-15, P-16 and P-17. On 7.12.1979, the petitioner was informed that the appeal filed by him was transferred to Ministry of Defence/Pension-A (P-18 and P-19). He was informed on 2.6.1983 (P-20) that his qualifying service has been counted from 28.12.1953 to 16.9.1963, which came to 9 years 263 days. In other words, the period from 17.9.1963 to 21.3.1964 has been excluded. However, a comprehensive decision was forwarded to the petitioner on 7.3.1986 (P-22) which repeat the same facts. The order dated 22.5.1990 (P-25), 5.3.1992 (P-26), 8.9.1992 (P-27) and 10.12.2004 (P-33) repeat the same reason for rejecting the claim of the petitioner for grant of service element of pension. Eventually, the petitioner sent a legal notice through his counsel on 22.11.2004 (P-32) and has relied upon various judgment/Army Regulations 178 to 187 and 196 to 200.