EMNA Vs. UNION OF INDIA

JUDGEMENT

(1.) HON'ble SHIV KUMAR SHARMA, J.-Writ petition filed by the appellant for grant of disability and special family pension was dismissed by the learned Single Judge vide order dated April 16, 2003. Against this order that the instant appeal has been preferred by the appellant.

(2.) CONTEXTUAL facts depict that husband of appellant late Sakuria was enrolled in Sadul right infantry of Erstwhile Bikaner State Forces on November 1, 1938 in medical category A. At the time of enrollment Sakuria was fully fit and did not suffer from any disease. He fought during Second World War for five years from November 17, 1942 to December 17, 1945 and was awarded HH's Accession Medal 1943. War Medal, Defence Medal and Indian Independence Medal. On Independence the Unit of petitioner was merged with the Rajasthan State Forces and later with the Rajput Regiment of the Indian Army. While serving on Indo-Pak boarder the petitioner suffered wounds and lost vision in left eye and invalided out of service on recommendation of the Medical Board on January 27, 1953 after 14 years 2 months and 27 days service due to disability Amblyopia Exnopsia left eye as per details given in paras No. 3 and 5 (c) of his discharge certificate appended as Annexure-1 with the writ petition as well as serial No. 23 of extract of long roll Annexure-1. The disability of Sakuria was directly attributable to Military service as 50% as per serial 6 of Schedule of disabilities and he was fully entitled for grant of disability pension as per Rules 42 and 43 of the Bikaner Army Pension and Gratuity Rules. The petitioner averred that the liability for payment of pension for State Forces was taken over by the Government of India with effect from April 1, 1950. Therefore, he was entitled for grant of disability pension as per regulation 173 of the Pension Regulations. Shri Sakuria's service and medical documents were prepared and forwarded to the Record Officer on his discharge as per Regulation 623 of Regulations for Army. After coming to know that similarly placed persons have been granted disability pension Sakuria approached the Bikaner District Ex-servicemen League for help, who took up his case with the higher authorities. Shri Sakuria was informed vide letter dated May 19, 1997 that his disability pension claim was rejected vide letter dated February 14, 1953. The respondents were requested to grant disability pension under the Rules 42, 43 and Item No. 6 of the Schedule to the Bikaner Army Pension Rules vide letter dated December 11, 1998 but no action was taken and Sakuria died on September 21, 2001. The appellant thereafter served legal notice on July 12, 2002 and filed writ petition on August 8, 2002, which was dismissed by the learned Single Judge as indicated herein above.

(3.) RULE 7(b) of Appendix II (Entitlement RULEs) reads as under:- "(a) In respect of disease, the following rules shall be observed- (b) A disease which has led to an individual discharge or death will ordinarily be deemed to have arisen in service if no note of it was made at the time of individual's acceptance for military service. However, if medical opinion hold, for reasons to be stated that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service."