MURTI DEVI Vs. UNION OF INDIA

JUDGEMENT

(1.) Appellant's husband, namely, Sepoy Narpat Ram resident of village Jassor, Tehsil R.S.Pura, District Jammu was enrolled in the Army on 27.01.1943. He was transferred to Dogra Regiment with effect from 1st of November, 1947. During his tenure in the army, he sustained injury ''Dislocation Elbow Left 596'' of severe nature on 27.01.1949 while practicing high jump in the Unit Playground. On his examination by the Medical Board, he is stated to have suffered disability at 20% and said disability was attributable to military service. He was discharged from service w.e.f. 26.04.1950 under Indian Army Act and Rule 138 III (iv) and Release Regulations Indian Army, 1946. The said soldier was sanctioned disability pension as admissible under Rules after every two years. The Re-survey Medical Board re-examined the appellant-writ petitioner in April 1956, who again re-assessed his disability at 20%. His claim for continuance of disability pension in his favour was forwarded to Chief Controller of Defence Accounts (P), Allahabad but the same was rejected by him. The disability pension in favour of the deceased was stopped w.e.f. 02.03.1956 and representation was made to the respondents in this behalf indicating that Pension Sanctioning Authority could not have gone against the opinion of the medical board which has assessed disability at 20%. Nothing seems to have happened in the matter till 1977. While Re-survey Medical Board was arranged by respondents and the same was held on 03.01.1977 at Military Hospital, Jammu. The Board assessed the disability of petitioner's husband at 0% (permanent). As a consequence of recommendation made by the Board, Pension Sanctioning Authority rejected the case of the husband of the appellant on 03.06.1977 and appeal was preferred by the deceased, which came to be rejected by the respondents on the ground that the degree of disablement had been correctly assessed at less than 20% (permanent). The deceased soldier, however, remained silent on it and later he expired on 07.11.1982.

(2.) Aggrieved of the order of rejection dated 03.06.1977, writ petition (SWP No.126/2003) came to be filed by the appellant before this Court wherein twofold prayers were made:-

(3.) After hearing the parties, the learned Single Judge found that the opinion of the Medical Board framed in 1956 showing disability of the deceased 20%, could not have been ignored by the Pension Sanctioning Authority and the findings of the expert could not have been rejected by it as opinion of the Medical Board was final. The Pension Sanctioning Authority had no reason to disbelieve the report of the Re-survey Medical Board. It was only after 1977 that the medical board found the disability at 0% (permanent) and the husband of the appellant was found not to be eligible for grant of disability pension. The writ court directed the respondents to pay disability pension to the appellant w.e.f. 1956 to 1977. So far as the claim for grant of service pension is concerned, the same was rejected on the ground that the deceased had not completed minimum qualifying service.