JUDGMENT 1. 1. In the instant case the petitioner is seeking benefit of pension. According to him, he had served the Indian Army from 12.2.1942 to 10.4.1946. But thereafter, he was discharged from the services on account of becoming medically unfit due to injuries sustained by him during service. Since he was medically boarded out, hence, he was entitled to get disability pension. During service he had received number of medals and stars. The disability was occurred during service, while he was doing parade. His left knee and left elbow were injured. He was taken to the Military Hospital for treatment by the Army Personnel viz Mr. Babhuti (No. 2931625), Mr. Mathalli s/o Mr. Chiman Gurjar, the Naik (No. 23248). Both were of 8th Unit of Punjab Regiment. In support of this fact the petitioner has enclosed affidavits of these two persons. The petitioner has further submitted that he was medically treated for about 3 months in Military Hospital, Lahore. The percentage of disability sustained by him was 34%. He is still handicapped by left leg. Though he was boarded out on the basis of recommendation of the Military Hospital, yet report of the Board was not supplied to him, in-spite of request. He had submitted number of representations, but no relief was paid to him. 2. Per contra, the respondents disputed the facts of the writ petition and have raised objection that in view of Section 4 of Pension Act, 1871 (for short 'the Act of 1871') which has been adopted by the Army Authorities, pension cannot be litigated in Court of law, civil courts have no jurisdiction to pass any decree or order affecting liability of Government to pay any pension. Under these circumstances, the petitioner has got no right to invoke the extra ordinary jurisdiction of this Court by filing the present writ petition in respect of pension. Since the writ petition was filed after 44 years, hence liable to be dismissed on the ground of gross delay. His claim could no be considered in absence of record, which was destroyed long back, keeping in view the para 595 of Regulations for the Army Volume-II. The petitioner was not granted disability pension, as his disability must have been assessed less than 20% by the medical authorities. His claim could no be considered in absence of record, which was destroyed long back, keeping in view the para 595 of Regulations for the Army Volume-II. The petitioner was not granted disability pension, as his disability must have been assessed less than 20% by the medical authorities. Principally respondents have submitted that in absence of any material, it cannot be said that petitioner was discharged on account of disability, which was attributable to or aggravated by Military service. 3. I have heard learned counsel for both the parties at length and considered the Regulations as referred in the foregoing paras. 4. Mr. S.C. Gupta, learned counsel appearing for the petitioner has submitted that the petitioner was discharged on account of medical grounds and the said disability was attributable to or aggravated by military services. Since his disability was more than 20%, hence, he is entitled to get disability pension. The respondents have failed to discharge their duties. Merely not having record does not mean that petitioner is not entitled for disability pension, particularly when he has submitted facts in his petition with sufficient proof. Pension provisions should be interpreted liberally and as per para 171 and 173 Chapter IV of Pension Regulations, 1961 (for short 'the Regulations of 1961') he should have been granted disability pension. As far as delay in filing writ petition is concerned, there are number of cases in his favour in which it has been held that it is a continuous cause of action. Mr. Gupta has relied upon Union of India Vs. Pratap Singh 2007 (3) WLC (Raj.) 630 ; No. 3156050 Ex. Sep.Umed Singh Vs. Union of India 2006 (1) RDD (Raj.) 398; Smt. Sinokhi Vs. Union of India 2002 (3) RLR 184 = 2002 (5) WLC (Raj.) 598 . 5. Mr. Sanjay Pareek learned counsel appearing for respondent - Union of India, has incongruously submitted that the petitioner cannot be granted disability pension, as he has relied upon rules, which are not applicable to him and he has not submitted medical board proceedings to establish that his disability was assessed 20% or above. The facts mentioned by the petitioner cannot be relied upon in absence of any material document or record, as the record had already been destroyed keeping in view of provisions contained in para 595 of Regulations for the Army. The facts mentioned by the petitioner cannot be relied upon in absence of any material document or record, as the record had already been destroyed keeping in view of provisions contained in para 595 of Regulations for the Army. He has also relied upon various rulings of the Hon'ble Apex Court and this Court; viz. Controller of Defence Accounts (Pension) Vs. S. Balchandran Nair; (2005) 13 SCC 128 , Union of India Vs. Dhir Singh China ( (2003) 2 SCC 382 ; Union of India Vs. Baljeet Singh (1996) 11 SCC 315 ; Union of India Vs. Bhoora Ram 2006 (5) WLC (Raj.) 28 . 6. Much has been argued by Mr. Pareek about delay in filing the writ petition. He has submitted that as Para 595 of Army Regulations documents in regard to grant of pensions and gratuities to JCOs, ORS. and Non-Combatants (Enrolled) will be retained by the Units and formations concerned for a period of 50 years in case of a pensioner and for 25 years in other cases from the date an individual becomes non-effective. In the present matter, the petitioner was not getting pension hence his record was destroyed after passing 25 years. Now, in absence of record it cannot be said that the petitioner is entitled to get disability pension. In respect of delay in filing the writ petition, both the parties cited the cases in their favour. I do not find any justification to discuss all these cases in view of a recent judgment reported in Shiv Dass Vs. Union of India (2007) 9 SCC 274 . The Hon'ble Apex Court in this case has held as under : "In a case of pension the cause of action actually continues from month to month. That, however, cannot be ground to over look delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone. In the peculiar circumstances, we remit the matter to the High Court to hear the writ petition on merits. If it is found that the claim for disability pension is sustainable in law, then it would mould the relief but in no event grant any relief for a period exceeding three years from the date of presentation of the writ petition." 7. It is, therefore, quite clear that instant writ petition cannot be dismissed only on the ground of delay without going into the merits of the case. On merit if it is found that the petitioner is entitled to get disability pension, the relief can be restricted for limited period considering the fact of delay in approaching the High Court. 8. In fact for sustaining a claim for pension, the employer has to first establish his entitlement to prefer such claim. The entitlement might be dependent upon various considerations, which are generally regulated by statutory Rules/Regulations. Thus, onus lies on the person, who is seeking pension. The person claiming pension must establish that he is entitled to get pension. 9. The petitioner has strongly relied upon para 173 of the Regulations of 1961, which says that disability pension may be granted to an individual who is invalided from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20% or above. The question whether a disability is attributable to or aggravated by military service can be determined under the Rules in Appendix-II. The Appendix-II is related to Entitlement Rules and are applicable in cases where the disablement or death, on which the claim to casualty pensionary award is based, takes place on or after 1.4.1948. It has further been prescribed that disablement or death from 3.9.1939 to 31.3.1948 can be regarded as attributable to or aggravated in accordance with the entitlement criteria published in Army Instructions (India) No. 43 of 1944 and 137 of 1948. However, no such material has been placed by the petitioner before me. It has further been prescribed that disablement or death from 3.9.1939 to 31.3.1948 can be regarded as attributable to or aggravated in accordance with the entitlement criteria published in Army Instructions (India) No. 43 of 1944 and 137 of 1948. However, no such material has been placed by the petitioner before me. Hence, in absence of relevant provisions of instructions it cannot be established that the petitioner was invalided out because of disability which was attributable to or aggravated by military services. 10. The petitioner has cited cases Union of India Vs. Pratap Singh 2007 (3) WLC (Raj.) 630 ; 2006 (1) RRD (Raj. 398 No. 3156050 Ex. Sep. Umed Singh Vs. Union of India ; and 2002 (5) WLC (Raj.) 958 Smt. Sinokhi Vs. Union of India. All these cases are based on Army Pension Regulations, 1961. Thus, in my view the same do not help in any manner to the petitioner. In all such cases provisions of Regulations of 1961 have been interpreted and thereafter, reliefs were granted. Even otherwise no document or proof to show that disability was sustained by the petitioner during military service has been submitted by the petitioner. In fact, the burden to prove the entitlement of getting pension primarily lies on the petitioner himself, but he has failed to establish it. 11. The respondents have submitted that merely any disability sustained by individual does not mean that it is attributable to or aggravated by military service. One has to establish that only because of military service he had sustained disability. In the instant case, it has been submitted that the disability was occurred during service, while he was doing parade and his left knee and left elbow were injured. Merely statement is not enough. Particularly, when the original record has already been destroyed under regulation 595 of Army Regulations. If any disease or disability arise during service it must also be established that the same is only because of military service. In (1996) 11 SCC 315 it has been held that when a disability pension is sought for and made a claim, it must affirmatively be established, as a fact, as to whether the injury sustained was due to military service or was aggravated which contributed to invalidation for the military service. Similarly, as per (2005) 13 SCC 128 , Controller of Defence Accounts (Pension) Vs. Similarly, as per (2005) 13 SCC 128 , Controller of Defence Accounts (Pension) Vs. S. Balchandran Nair ; Union of India Vs. Dhir Singh China (2003) 2 SCC 382 , since the petitioner has not assailed medical proceedings, he cannot get any relief. 12. Considering all the aforesaid facts and cases, I do not find any merit in the writ petition. The same is, therefore, dismissed. There will be no order as to costs.Petition Dismissed. *******