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2006 DIGILAW 274 (MP)

Ram Sharan Prasad v. Union of India

2006-02-17

R.K.GUPTA

body2006
ORDER 1. Petitioner by way of filing this petition before this Court has prayed for a direction to the respondents to allow the disability pension to him. The petitioner was discharged on the ground of medical unfitness by an order dated 27.1.1967, which is Annexure P-l to the petition. 2. Against the said order, the petitioner submitted a statutory representation which was rejected. The petitioner filed a petition before the High Court of Bihar at Patna, which was registered as C.W.J.-C No. 8780/1994. The aforesaid petition was dismissed on 22.2.1996 on the ground that the High Court at Patna has no territorial jurisdiction. Therefore, the said petition was withdrawn with a liberty to file a petition before this Court. 3. The facts leading to the present case are that the petitioner suffered 90% of disability which was a composite assessment by the respondents. The same is reflected at internal page-4 of Annexure R-1 (the report of the Medical Board Proceedings Invalidating All Ranks) filed by the respondents along with their return. The opinion of the Medical Board is also reflected in page-3, of Annexure R-l, document and column No.2 (C), which relates "in respect of each disability shown as aggravated under B, the Board should state fully: (i) The specific condition and period in service which aggravated the disability". In this column, it is mentioned that "due to stress and strain of service condition", 4. Now the argument submitted by the learned counsel for the petitioner is that in pursuance to para 173 of the Pension Regulation, which is filed by him as Annexure P-3 to the petition, a disability pension may be granted to an individual who is invalidated from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 percent or over. Appendix 11-7 (b) is also filed by the petitioner as document Annexure P-7 to the petition. According to the same, a disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it, was made at the time of the individual's acceptance for military service. 5. Appendix 11-7 (b) is also filed by the petitioner as document Annexure P-7 to the petition. According to the same, a disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service if no note of it, was made at the time of the individual's acceptance for military service. 5. On this basis, the learned counsel for the petitioner submitted that when the petitioner accepted the military service and at that time no note was appended in service record that the petitioner was suffering from any disease, then, it is a case where the disease shall be deemed to have arisen in service. This Court has also taken a similar view in WP (S) No. 2775 2003 decided on 5.1.2006 [Sant Kumar v. Union of India and others]. On that basis, it is submitted that in the absence of any note at the time when the petitioner accepted the military service, the disease resulting into petitioner's discharge shall be deemed to have arisen in service. 6. Apart from the aforesaid, it may further be seen that Annexure R-1 filed by the respondents along with their return which is a report of the Medical Board also indicates that the petitioner has suffered the said disability/disease due to stress and strain in service conditions. The said report further contains the composite assessment of the disability upto the extent of 90%. Accordingly, the petitioner shall be entitled to the disability pension which has to be calculated by the respondents from the date of the petitioner's discharge. 7. The learned counsel for the respondents raises an objection that the present case suffers with the delay and laches. 8. The learned counsel for the petitioner submitted the following judgments of the apex Court; 2005 (10) SCC 325 , [Savitri Devi Mehta and others v. Union of India and others], AIR 1997 SC 27 , S.R. Bhanrale v. Union of India and others and 2003 (1) SCC 184 , S.K. Mastan Bee v. General Manager, South Central, Railway and another and on the basis of the judgment as reported in 2005 (10) SCC 325 (supra) submitted that the apex Court has already held that delay on the part of the government or refusal to pay the pension without there being any justifiable reason cannot defeat the claim of the petitioner to claim the disability pension. 9. 9. In the present case, it may be seen that the petitioner had been knocking the door of justice and was not sitting idle. He preferred an appeal, which was rejected on 19.10.1968. May be, that the petitioner has suffered with 90% of disability and is the resident of Bihar, therefore, he filed a petition before the High Court of Judicature at Patna. The same was dismissed on the ground of territorial jurisdiction by an order date 2nd February, 1996, copy of which is placed on record as Annexure P-6 Subsequently, the petitioner preferred a petition before this Court on 15.2.1996. Thus, it cannot be said that the petitioner had been sleeping over his right. 10. On this basis, the delay by itself would not be sufficient to defeat the justice particularly when this Court has found that the petitioner was illegally deprived of his right to claim disability pension in spite of the fact that the Medical Board opined by assessing the composite disability up to the extent of 90%. Therefore, it is a case where the claim of the petitioner cannot be defeated on the ground of delay by itself. 11. In view of the aforesaid, the present petition is allowed and the respondents are directed to calculate and pay the disability pension to the petitioner within a period of 90 days along with the arrears, from the date of discharge at the rate of 6% interest. 12. The petition is thus allowed.