UNION OF INDIA Vs. JAGDISH SINGH KATOCH

JUDGEMENT

(1.) This appeal under clause 12 of Letters Patent, at the instance of Union of India and its officers, is directed against judgment and order dated 19.04.2002 rendered by the learned Single Judge of this Court, holding that the writ petitioner- respondent is entitled to grant of disability pension after having been discharged from the Army on his own request.

(2.) Before embarking upon examining the legal controversy, it would be appropriate to set out few facts. The writ petitioner- respondent joined 4 Corps of Military Police as a Sepoy in the year 1975 and he was allotted No. 7769356. He was released from service at his own request after rendering 7 year, 9 months of service under Army Rule 13 (3) Item III (iv). The order was passed before he could fulfill the conditions of his enrolment. In an order passed by CCDA (P) Allahabad on 17.03.1988 (Annexure-B) it has been clarified that he would not qualify for grant of disability pension under the Rules (Annexure R-2) and the assertion made by the petitioner- respondent to the contrary was wholly untenable. The claim made by the petitioner- respondent is that discharge certificate clearly indicated that his medical category at the time of release was "BEE" (Permanent) with a further certification that he was fit for civil employment. The petitioner- respondent made repeated representations but the appellant took a consistent stand that he did not qualify for grant of disability pension although at the time of release at his own request he was under medical category "BEE" (Permanent). In that regard a reference has been invited to the order dated 01.09.1983 passed by CCDA (P) Allahabad (Annexure R-2). It is also pertinent to mention that the petitioner- respondent had earlier filed a petition namely SWP no. 310/1985 which was dismissed for non prosecution on 08.10.1996 (Annexure R-1). The appellants also raised objection that the writ petition filed later on by the petitioner- respondent was barred by res judicata. The learned Writ Court, after examining the pleadings of the parties proceeded to record the following findings:-

(3.) Mr. K. K. Pangotra, learned counsel for the appellant has vehemently argued that disability pension would not be available to a Sepoy who has been released from service at his own request. He has placed reliance on to Army Rule 13 (3) Item III (iv). According to the learned counsel there is a lot of difference between "discharge on the basis of disability" and "discharge on the basis of request" of an army personnel.