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2005 DIGILAW 530 (PNJ)

Pokh Raj (Ex. Capt. ) v. Union Of India

2005-04-27

S.S.NIJJAR

body2005
Judgment S.S.Nijjar, J. 1. The petitioner seeks the issuance of a writ in the nature of Certiorari quashing the order dated 19.7.1991 (Annexure P-12) whereby the claim of the petitioner for grant of higher rate of service element of disability pension after counting of service from the date of commission to the date of release had been rejected on the ground that he had exercised option under Para 1(a) of the Defence Ministrys letter No. 212413/74/Pen-C dated 7.7.1975. A prayer is also made for the issuance of a writ in the nature of Mandamus directing the respondents to count the entire period of commission service rendered by the petitioner in the Indian Army from 30.8.1964 to 15.7.1970, as qualifying service for the purpose of grant of service element. 2. The undisputed facts are that the petitioner was enrolled in the Indian Army on 13.1.1953. Thereafter, on 30.8.1964, he was granted Emergency Commission. He was released from the Indian Army in the rank of Captain on 15.7.1970. During the period between 30.8.1964 and 15.7.1970, the petitioner suffered disability. He had become 70% deaf. He rendered Full Pay Commission Service from 30.8.1964 to 16.7.1970. He was granted pension for other rank service under AI/6/S/65. He was, however, not granted disability pension of Commission Rank. The petitioner made number of representations for the grant of disability pension. When the same was not allowed, the petitioner filed C.W.P. No. 505 of 1973. The aforesaid writ petition was admitted. During the pendency of the writ petition, the Government of India took a decision dated 13.11.1975 that disability suffered by the petitioner should be regarded as attributable to Military Service. The degree of disability was assessed at 70% from 15.7.1972 to 16.4.1983. During the pendency of the writ petition, C.M. No. 3597 of 1976 was filed by the respondents, in which it has been stated that the entire relief has been given to the petitioner and the writ petition has become infructuous. Consequently, the writ petition was disposed of on 16.11.1976, as having become infructuous. By letter dated 30.10.1976, the respondents released the Disability Pension and cancelled the previous P.P.O. and adjusted the amount. The petitioner continues to be in receipt of the Disability Pension. Consequently, the writ petition was disposed of on 16.11.1976, as having become infructuous. By letter dated 30.10.1976, the respondents released the Disability Pension and cancelled the previous P.P.O. and adjusted the amount. The petitioner continues to be in receipt of the Disability Pension. However, the petitioner was aggrieved by the action of the respondents as the Disability Pension had been granted calculating the service element of the disability taking into account 2/3rd service as rank service and commission service from 30.8.1964 to 28.7.1965. The entire service from 29.4.1965 to 15.7.1970 had been ignored. The petitioner again made representation and claimed that he is entitled to disability pension on the basis of the entire service till his release. When the claim of the petitioner was rejected, the present writ petition was filed. 3. The respondents have filed written statement. It has been stated that under the Rules, the period w.e.f. 30.8.1964 to 20.4.1965 has been taken into consideration for the grant of pensionary benefits. Since the disability of the petitioner has now been assessed for life, the petitioner continues to receive the disability pension. 4. Mr. Sehgal, learned counsel for the petitioner submits that the entire controversy involved in the writ petition is squarely covered by a judgment of this Court rendered in the case of Ex. Capt. Surinder Pal Singh Gondara v. Union of India and Anr., 1989(3) S.L.R. 711. Against the aforesaid judgment, the respondents filed L.P.A. No. 1018 of 1988 which was dismissed on 4.10.1988. 5. Learned counsel for the petitioner further submits that the S.L.P. filed by the respondents against the judgment of LPA was dismissed. 6. Mr. Gurpreet Singh, learned counsel appearing for the respondents submits that the aforesaid judgment is not applicable to the facts and circumstances of the present case, as the petitioners claim for disability pension has to be considered under instructions No. 6/S-7/S dated 29.4.1965, issued by respondents. Under these instructions, it is provided that the disability shall be as follows:- "Service element (a) If the disability is assessed at 80% or above, the rate of service element will be the same as might have been admissible, had they been PRC officers instead of ECOs;" 7. Since the disability of the petitioner was assessed at 70% at the relevant time, he cannot be given credit for the service rendered from 28.4.1965 to 15.7.1970. Since the disability of the petitioner was assessed at 70% at the relevant time, he cannot be given credit for the service rendered from 28.4.1965 to 15.7.1970. In instructions dated 7.7.1975, it is further provided that non-regular officers such as Emergency Commission Officers who were released in low medical category, shall be entitled to disability pension, as admissible to them at the time of sustaining disability. Even though, they are retained in service subsequently and released under the phased programme. Consequently, the petitioner can only be given benefit of service upto the date when he incurred the disability. 8. I have considered the submissions made by the learned counsel for the parties. I am of the opinion that the matter is squarely covered by the decision of this Court rendered in the case of Ex. Capt. Surinder Pal Singh (supra). In the aforesaid case, the same instructions have been relied upon by the respondents to defeat the claim of the petitioner therein. In fact the same provision of the instructions relied upon by the respondents were considered. After considering the provision, which has been quoted above, this Court came to the conclusion that once the disability was assessed at 90%, the qualifying service will be as admissible to the PRS. In the present case, it has been stated by Mr. Sehgal that the disability of the petitioner has been assessed at 100% from 1990 onwards. Even earlier, the disability of the petitioner had been assessed at 70%. I see no justification for declining the benefit of Disability Pension to the petitioner as admissible to PRS Officers by counting the entire period of Commission Service as qualifying service, merely because the petitioner had been assessed at 70% of the disability. There is no rational as to why an Officer suffering from 80% or above disability should be more favourably treated than a person suffering from 70% or above disability. Once the Officer has been held entitled to Disability Pension, there would be no justification in imposing a cut in the service rendered by the Officer. 9. In view of the above, I allow the writ petition, quash the order dated 19.7.1991 (Annexure P-12) and direct that the Disability Pension of the petitioner shall be calculated by counting the entire Commission Service from 30.8.1964 till 15.7.1970, as qualifying service for the purpose of grant of service element. 9. In view of the above, I allow the writ petition, quash the order dated 19.7.1991 (Annexure P-12) and direct that the Disability Pension of the petitioner shall be calculated by counting the entire Commission Service from 30.8.1964 till 15.7.1970, as qualifying service for the purpose of grant of service element. Let the pension be re-fixed and released to the petitioner within a period of three months of the receipt of certified copy of this order. No costs.