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2009 DIGILAW 595 (JK)

Chuni Lal v. Union Of India

2009-11-27

J.P.SINGH

body2009
1. Petitioner had approached this Court on an earlier occasion also by his writ petition, SWP no. 2358/2003, seeking Disability pension pursuant to his discharge from the Army where he served for thirteen years five months and twenty nine days. 2. His disability, being less than 20%, he was found dis-entitled to Disability pension, and his writ petition was, accordingly, dismissed vide order of May 12, 2005. 3. Appeal preferred by him against the order of learned Single Judge, dismissing his writ petition, was disposed of on November 7, 2005, with a direction to the respondents to consider his case under Regulation 183 of the Army Regulations, 1961. 4. He has again been found dis-entitled to Disability pension by the respondents. 5. He has approached this Court seeking quashing of the respondents order holding him dis-entitled to Disability pension. 6. The respondents response to the writ petition, inter alia, indicates that the petitioners Discharge from service was not wholly because of his disability but had been actuated by the disbandment of the Jammu and Kashmir Infantry Battalions, where he had been serving. 7. Basing his submission on the facts disclosed in the respondents response to the writ petition, indicating the petitioners Discharge from service as a result of the disbandment of the Jammu and Kashmir Infantry Battalions, the petitioners learned counsel urges that in view of the admitted case of the parties that the petitioners Discharge from service was for the disbandment of the Jammu and Kashmir Infantry Battalions, the petitioner becomes entitled to Special pension and Gratuity in terms of Regulation 164 of the Army Regulations, 1961. 8. I have considered the submissions of learned counsel for the parties and perused Regulation 164 of the Army Regulations, 1961, which reads thus:- "164. Special pension or gratuity may be granted at the discretion of the President to individuals who are not transferred or the reserve and are discharged in large numbers in pursuance of Govts Policy- (i) of reducing the strength of establishment of the Armed Forces; (ii) of re-organization, which results in disbandment of any unit/formation." 9. In view of the stand taken by the respondents in their response to the petitioners writ petition, it is apparent that the petitioner was discharged from service because of the disbandment of the Battalion in which he was serving. In view of the stand taken by the respondents in their response to the petitioners writ petition, it is apparent that the petitioner was discharged from service because of the disbandment of the Battalion in which he was serving. His case was, therefore, required to be considered under Regulation 164 of the Army Regulations, 1961 and the petitioners learned counsels contention that the petitioners case was not considered by the respondents under the Regulation it was required to be so considered, is well founded. 10. It is true that petitioner has not approached this Court seeking Special pension and Gratuity invoking Regulation 164 of the Army Regulations, 1961, but that appears to be the result of lack of proper legal advice to him. His omission to seek consideration of his case under a particular Regulation of the Army Regulations, which, in view of respondents stand, taken in answer to the writ petition, that the petitioner was not discharged from service on medical grounds but was so discharged, due to the disbandment of erstwhile J&K State Forces under the provision of Army Headquarters, Adjutant Generals Branch letter No. 53826/AG/Org(d) dated 31st Jan 1951 in medical category CEE (temporarily), would not, in my view, absolve the respondents of their duty under the Regulations to consider his case and pass appropriate orders thereon as to his entitlement, or otherwise, to Special pension and Gratuity, in view of the provisions of Regulation 164 of the Army Regulations, 1961. 11. OIC Records communication SR/24357/court case of May 17, 2006, rejecting the petitioners case for pension, therefore, becomes unsustainable, in that, the provisions of Regulation 164 of the Army Regulations were not kept in view by the respondents in dealing with the petitioners case. The communication is, accordingly, quashed. 12. In the peculiar facts and circumstances of the case, when the petitioner has been litigating in this Court for the last about seven years for seeking pension and is now 87 years of age, it is considered just and proper to issue such directions which may enable him to know about his entitlement or otherwise, to Special pension and Gratuity, under the Regulation, which according to the events leading to his Discharge from service was attracted in the case. 13. 13. Accordingly, operating the law to deliver requisite justice and treating the petitioners writ petition as his representation seeking consideration of the respondents for deciding his entitlement to Special pension and Gratuity in terms of the Regulation 164 of the Army Regulations, 1961, a command is issued to the respondents to consider the petitioners representation for passing appropriate speaking order thereon, within a period of eight weeks as to the petitioners entitlement, or otherwise, to Special pension and Gratuity, in terms of Regulation 164 of the Army Regulations, 1961. 14. This petition is, accordingly, disposed of.