UNION OF INDIA AND ORS. Vs. AMRIK SINGH

JUDGEMENT

(1.) This appeal is filed by Union of India, Ministry of Defence and the officials of Defence, challenging the order dated 31.05.2001 made in OWP No. 24/2000, wherein the learned single Judge allowed the writ petition filed by the respondent claiming disability pension with 12% interest. The brief facts necessary for disposal of this appeal are as follows :-

(2.) Having aggrieved of the said order this appeal is filed contending that respondent without filing the statutory appeal before the Secretary to Government of India, Ministry of Defence, has filed the writ petition, which ought not to have been entertained. The respondent has not challenged the order dated 18.03.1998 which recommended him to be released on physical disability. The respondent having submitted his unwillingness to continue beyond 31.05.1998, based on which he was released, ought not to have been treated as discharge on medical ground. The respondent failed to establish that the disability/diseases mentioned above were sustained due to duty in military service as the diseases which were detected after joining service is based on presumption and order of the learned single Judge is liable to be set aside.

(3.) If is not in dispute that the respondent was initially enrolled in Sikh Regiment on 28.12.1971. Later on he was transferred to Jammu & Kashmir Militia w.e.f. 30.03.1973 which was subsequently re -designated as J & K Light Infantry (JAKLI) and he continued in the said service till 01.01.1987 when he was discharged from service. He was granted service pension w.e.f. 01.01.1987 for lifetime with dearness allowance. After the discharge from JAKLI he was enrolled in Defence Security Corps on 30.05.1988 and he was discharged from service on 31.05.1998. At the time of his re -enrollment, his physical fitness was assessed by Defence Security Medical Board and at that time no medical disorder or disease was pointed out by the medical board. Thus, there is a presumption in favour of the respondent that he was hale and healthy and physically fit for his re -enrollment in Defence Security Corps on 30.05.1988. It is an admitted fact that the Medical Board on 20.02.1998 (Military Hospital Jabalpur) found the disability (a) composite assessment of all disabilities for two years and recommended the respondent to be released in medical category BEE (Permanent) with 50% disability due to disease (I) Sexual Dysfunction of Organic Origin ICD -608 and (II) Secondary Depression ICD -300 (d). It is also not in dispute that the respondent has not completed 15 years of service to claim normal pension and unless he is treated under the disabled category, he is not entitled to get pension. Admittedly he has rendered 9 years and 325 days of service in the Defence Security Corps and it is not the case of the appellant that he was suffering the diseases mentioned above at the time of his re -enrollment. In the counter affidavit filed by the appellants before the learned single Judge, it is admitted that the respondent was brought before the Release Medical Board on 20.02.1998 at Military Hospital Jabalpur and the said Medical Board recommended him to be released in medical category BEE (Permanent) with 50% disability, composite assessment of all disabilities for two years due to diseases. It is not in dispute that the respondent was discharged before expiry of two years as he was discharged on 31 -05 -1998.