AJAIB SINGH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner joined Indian Army on 15.1.1966 in Rajput Regiment as a Sepoy. He served at different places and in different climatic conditions. He was invalided out from the service with a disability of 100% attributable to military service after serving for a period of 4 years and 8 months. Vide PPO No. D/188/71, he was granted disability pension for a period of one year from 11.9.70 to 09.9.71 which was continued on the recommendation of re-survey medical board proceedings with the disability above 20%. Another PPO No. D/RA/7563/92 was issued and his disability elements were extended for a period from 12.1.1992 to 7.2.97. On the recommendation of the 5th Pay Commission, the pension of the petitioner was revised to Rs. 1275/- w.e.f. 1.1.1996 vide letter dated 1.5.2000. This was followed by another circular dated 6.8.2001 laying down guidelines for rationalization of the pension structure for the pre-1996 Armed Forces Pensioners on the basis of the recommendation of the Central Pay Commission. Another Re-survey Medical Board was conducted on 7.9.2001 and the disability of the petitioner was assessed less than 20% and the disability element of the pension was terminated w.e.f. 16.2.002. The petitioner was thereafter asked by the Defence Pension Disbursing Office, Karnal to submit the joint nomination of wife for pension which was forwarded in the Office of respondent No. 3. Thereafter the petitioner received letter dated 31.10.2008 from the office of respondent No. 4 communicating him that since he has served for only four years and 8 months, he is not entitled to service element of pension as minimum five years service is required for earning the service element and earlier letter dated 1.5.2000 (Annexure P-4) was withdrawn and on that basis the pension of the petitioner was withdrawn w.e.f. 1.10.2008. The petitioner thereafter made various representations and also served a legal notice dated 8.12.2008 claiming service element of pension. One of the grounds was that a number of other Ex- Sepoy named in the legal notice were also given the service element of pension, though they served less than five years.

(2.) The respondents in the reply have also taken the stand that since the disability element ceases being less than 20%, service element is also not payable.

(3.) The petitioner has relied upon a Division Bench judgment of this Court passed in CWP No. 8768 of 2007 decided on 28.2.2008 (Chandgi Ram v. Union of India and others). On consideration of the Pension Regulations 173 and 186, the Hon'ble Division Bench of this Court has held as under :