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2010 DIGILAW 378 (PAT)

Jitendra Choudhary v. Union Of India

2010-03-16

JYOTI SARAN

body2010
JUDGEMENT 1. Heard Mr. Shashi Dhar Jha, learned counsel appearing on behalf of the petitioner and Mr.Satyendra Kumar Jha learned counsel representing the Union of India and its authorities. 2. The petitioner is aggrieved by the order dated 17.5.1996 (Annexure-4) whereby his claim for disability pension has been rejected by the C.C.D.A (P), Allahabad. 3. Brief facts of the matter are that the petitioner was appointed as Sepoy on 3.5.1982 in Danapur in the 4th Bihar Regiment. He suffered a damage of his thumb while on duty at Shri Lanka and was operated upon. Consequent thereto, the petitioner was placed under the CEE(P) category on 12.8.1993 where he was again examined by the Medical Officers of the Bihar Regiment. The petitioner was subsequently discharged from service in the light of the provisions 13(3)(iii)(v) of the Army Rules having served the Army for 11 years. 4. Being aggrieved by the order of discharge, the petitioner moved this Court through C.W.J.C.No.2166 of 1995 and the writ petition was dismissed by order 23.8.1995 with a direction to the respondents to expedite the consideration of the claim of the petitioner for disability pension. The claim of the petitioner for grant of disability pension was considered by the Medical Board and by the impugned order dated 17.5.1996, the same was rejected. The petitioner aggrieved by the said decision dated 17.5.1996 (Annexure-4) again came before this Court through C.W.J.C.No.442 of 1998 but chose to withdraw the same to pursue the statutory appeal provided under the Rules. A bench of this Court, while granting permission to withdraw the writ petition by order dated 8.12.1998, was pleased to condone the delay in filing the appeal. The petitioner in para-18 of the writ petition has submitted that he has preferred a statutory appeal under the Rules before the authority concerned and which is pending. 5. The counter affidavit and supplementary counter affidavit have been filed by the Union of India and its authorities and there is no whisper as to the outcome of the appeal preferred by this petitioner. 6. Mr. Jha, learned counsel representing the Union of India submits that even while the appeal was pending before the appellate authority, the petitioner chose to move the Ministry by way of second appeal. 6. Mr. Jha, learned counsel representing the Union of India submits that even while the appeal was pending before the appellate authority, the petitioner chose to move the Ministry by way of second appeal. Though the said stand has been taken by the respondent authorities but they have not come out with any statement regarding the outcome of the two appeals. 7. No statement has been made either in the counter affidavit or supplementary counter affidavit whether either of the two appeal has been disposed of by the concerned Appellate authorities. Learned counsel for the Union relies on a document placed at Annexure-A to the supplementary counter affidavit and which is a copy of revision of rules and procedures regarding the grant of disability pension. He refers to the stipulation present at rule 2 © thereof which, inter alia, provides that such ex army men who are discharged prematurely at their own request or on administrative grounds after earning four or more red ink entries are not eligible for disability pension. 8. The said stipulation may be a relevant fact for rejection of the case of the petitioner but the same again does not provide an answer to the issue, whether the appeal of the petitioner has been disposed of. 9. In the circumstances, this writ petition is disposed of with a direction to the first appellate authority to dispose of the appeal of the petitioner after giving him opportunity of being heard either by himself or his authorized representative, by a speaking order, within a period of three months from the presentation of a copy of this order.