RAM KRISHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE brief facts necessary for the adjudication of this petition are that the petitioner was enrolled in the Indian Army on 8th October, 1979. He suffered battle casualty on 5.1.2002, resulting in his discharge after completion of 25 and 106 days of service. He was placed in the low medical classification after holding Medical Board. He was subsequently asked to appear before the Re survey Medical Board on 4th December, 2004. He was declared invalided and recommended him "fit to release from service in medical category S, H, A2(P)P,E" with effect from 31.1.2005. His disability was declared attributable to army service and was recorded more than 30%. He was discharged on 31.1.2005 and the reason of discharge was shown as "completion of tenure of his service" under Army Rule 13(3) and was granted service pension of Rs. 5,643/ per month with effect from 1.2.2005. He was not granted disability pension even though his disability was assessed at more than 30% which was attributable to the Army service. He was informed on 7th March, 2005 that since he was discharged on compassionate ground he was not entitled to the disability pension.

(2.) THE case set up by the respondent in its reply is that the petitioner had sought discharge on compassionate ground and he was transferred to pension establishment at his own request in low medical category and thus he was not eligible for grant of disability pension under provision of Para 173 of the Pension Regulations. It has also come in the reply that he had submitted application on 13.10.2004 which was approved by the Officer In charge Records on 2.12.2004 and accordingly he was transferred to pension establishment under Item No. 1(i)(b) of the table annexed to Rule 13(3) of Army Rules, 1954 after rendering 25 years and 106 days service.

(3.) I have heard learned Counsel for the parties and have also gone through the record carefully. Admittedly the petitioner had received injury on 23.5.2002 due to mine blast which resulted in injury "(Rt) foot with fracture calcaneum with loss of skin + soft tissue Grade III open fracture". His case was reviewed by a medical board on 7.11.2002 held at 164 Military Hospital on 12.11.2002 and was downgraded to low medical category for two years with effect from 7.11.2002 to 7.11.2004. It is also admitted fact that the petitioner's disability was assessed at more than 30%. The question which falls for consideration before this Court is whether the action of transferring him to the pension establishment on the basis of Item No. 1(i)(b) of Table annexed to Rule 13(3) of Army Rules, 1954 is in accordance with law or not. It will be apt to reproduce the relevant portion of Rule 13 along with relevant table for better appreciation of the rival submissions: