H S GREWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this writ petition is challenging the order revoking disability pension which was already been granted to him. The petitioner joined the Indian Army in September 1935 as Sepoy. He had been commissioned as Lieutenant on 15.6.1941 and promoted as Major in the year 1945 and as Lt. Col on 24.4.1948 and he retired from Army in 1954. During his tenure in the Army, he suffered disability which is attributable to the Military service. He was examined by the Medical Board and by an order dated 4.9.1956, the composite disability was assessed at 30% which was attributable and aggravated by the Military Service and he has been accordingly granted the disability pension. The same was reiterated on 4.11.1956 in letter No. 174711/Pension-C of the Ministry of Defence. The petitioner made a representation to reconsider the percentage of his disability by his letter dated 6.3.1957. To this the Government in its letter No. 179475/Pen-A dated 27.4.1957 replied that the case of the petitioner of the disability pension has been reconsidered and the Government did not find any reason to alter the order already conveyed under order dated 4.9.1956 and the case has already been closed. Thus, the assessment of the disability at 30% composite has been confirmed and the matter has been closed. Only thereafter i.e. on 14.10.1957, the petitioner was informed that the disability was reduced to 11-15% i.e. less than 20% and thereafter the disability pension which has been granted to the petitioner was stopped. Admittedly, the petitioner made several representations against the stoppage of the disability pension on the ground of reassessment of the percentage of the disability. When his several representations did not yield any response, the petitioner approached this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India for issuance of writ of certiorari and also writ of mandamus directing the respondents to grant him the disability pension. It is argued by the respondent that the writ petition is not maintainable in view of rule 48(a). It is further argued by the learned counsel for the Union of India that Paragraph 27 of the Entitlement Rules (Appendix II) powers the authorities to review the recommendation of the Medical Board. Therefore, in exercise of this power, the impugned letter dated 14.10.1947 has been issued and there are no grounds to quash the same.

(2.) Admittedly, the petitioner has been granted disability pension assessing the disability at 30% composite by the order dated 14.9.1956. The claim for increase of the disability pension made by the petitioner on 6.3.1957 has been rejected by the Government of India on 27.4.1957 and the petitioner has been informed that the matter was closed. Thereafter, on 14.10.1957 the matter was reviewed by the Ministry of Defence and assessed the composite disability between 11% to 15% and denied the disability pension to the petitioner on the ground that disability is less than 20%. Admittedly, no notice has been given to the petitioner before passing the order dated 14.10.1957 and the petitioner was never examined by any medical Board after 4.9.1957. Placing reliance on 18(a) is not tenable. Rule 48(a) applies where no disability pension has been granted to the retiring officer. According to rule 48(a) the persons who have retired from the Army may apply claiming disability pension within seven years from the date of retirement. But in the present case the disability pension has already been granted to the petitioner. As already stated, Rule 48(a) applied to only those who have not been granted disability pension and such persons who have not been granted disability pension may approach the authorities within seven years from the date of retirement. Since the petitioner has already been granted the disability pension immediately after his retirement, there is no question of approaching the authorities under rule 48(a) claiming the same. Therefore, the Ministry of Defence cannot rely upon rule 48(a) and say that there is delay in approaching this Court. In rule 27, it is no doubt provided that the recommendation can be reviewed and revived by the medical authorities but the power under rule 27(c) will have to be exercised before granting the disability pension. If once disability pension has been granted, the said provision does not confer any power of review. It is always open to the medical authorities either to accept the recommendation of the Medical Board or reject the same after reviewing those recommendations. But once the recommendation has been accepted rule 27(1) cannot be pressed into service. Admittedly, the disability pension has been granted to the petitioner. Therefore, it cannot be reviewed without giving opportunity to the petitioner. Admittedly, no such opportunity has been given. This is clearly in violation of the principles of natural justice. Therefore, the order dated 14.10.1957 assessing the disability between 11% to 15% thereby reducing the earlier assessment of the disability cannot be sustained.

(3.) Learned counsel for the respondent further argued that the disability pension was stopped from 1957 and the petitioner approached this Court only on 2.7.1997. Therefore, petitioner is not entitled to relief on disability pension after such a long period of nearly 40 years. Retired Army Personnel who has incurred any disability during the tenure of their service in Military are entitled to disability pension granted under the rules and it furnishes a continuing cause of action every month when the disability pension becomes payable. Though the petitioner is not entitled to disability pension from 1957 onwards, he is certainly entitled to the arrears of disability pension which are within the period of limitation. For recovery of money, a suit can be filed within three years from the date when the money becomes payable. Therefore, petitioner is entitled to recover the pension for a period of three years, two months (two months being notice period for filing the suit under Section 80 of the Code of Civil Procedure) prior to the filing of the writ petition i.e. 27.7.1997 and he is entitled to disability pension in accordance with rules thereafter.