JUDGMENT Tarlok Singh Chauhan, J. 1. The writ-respondents have filed this appeal against judgment dated 22.6.2007 passed by learned Single Judge in CWP No. 399 of 2003 whereby he allowed the petition and directed the grant of disability pension to the writ-petitioner w.e.f. 1985 along with interest @ 9%. 2. The brief facts as necessary for deciding this appeal are that the writ petitioner was enrolled in the Indian Army on 13.11.1973 and was allotted Army No. 13735632. He received injuries while serving in 14 J&K Rifles in 1985 while discharging his official duties. His disability was assessed at 30%. He was denied the disability pension and AGI benefits vide communication dated 16th August, 1999 on the ground that he sought his discharge from service on compassionate grounds. He made a representation on 12th November, 2001 to the Defence Minister of India, which was turned down on 23rd May, 2002 by referring to Army Rule 13 (3) Item 3 (iv). 3. The writ petitioner had submitted application for discharge from service on compassionate grounds on 3.4.1989 and on the basis of the recommendations made by his Commanding Officer, he was discharged on compassionate grounds on 12.4.1989 under Army Rule 13 (3) Item 3 (iv). Undisputedly, the petitioner had suffered fatal injury in the year 1985 as his disability was assessed at 30% and by that time he had already put in 16 years of service and was permitted to continue in service. However, due to the injury he was compelled to make a request on 3.4.1989 seeking discharge from the Army, which application reads as follows: “No. 13735632W Nk Ramesh Chand Rana D Coy PL -12 14 JAK RIF C/O 99 APO The Commanding Officer, 14 JAK RIF C/O 99 APO Through proper channel. Subject:- Request for discharge from service on compassionate grounds. Sir, 1. With due respect and humble submission, I want to lay down the following few lines for your kind consideration and favourable action please. 2. That I, No. 13735632 Nk Ramesh Chand Rana am enrolled in Army on 30 Nov. 1973. I have completed my fifteen years of service obeying my superior commanders. Now I have been desperated from combined family. A portion of land have been given to me by my father for cultivation. My house is situated far away from Village. 2. That I, No. 13735632 Nk Ramesh Chand Rana am enrolled in Army on 30 Nov. 1973. I have completed my fifteen years of service obeying my superior commanders. Now I have been desperated from combined family. A portion of land have been given to me by my father for cultivation. My house is situated far away from Village. My wife with younger children’s is feeling unsecure and the land portion is lying barren. 3. Due to the reasons I have mentioned above my mind is always thinking about my domestic problems. I am not eligible to performs my duties as well as I want to do and was doing previous. So I request your honour that I may please discharged from service on compassionate grounds. 4. I further apprise your honour that my case may please be consider sympathetic grounds which would be a boon upon me and my family. Thanking you, Yours faithfully, Sd/- xx xx xx No.: 13735632 W Nk Ramesh Chand Rana Dated: 03 Apr 1989.” 4. The learned Single Judge after taking into consideration the aforesaid letter dated 3.4.1989 concluded that though the writ petitioner had made a request for discharge, the same could not be considered as voluntary retirement as the same was based on medical grounds. Therefore, the case of the petitioner would fall under Rule 13 (3) II (ii) and on that basis he would be entitled to get disability pension. Reliance was also placed upon the judgment of the Division Bench of the Delhi High Court in Ex. Subedar Baljor Singh vs. Union of India and others 1997 LAB I.C. 1818 for reaching the aforesaid conclusion. 5. The ground of delay and laches raised by the appellant was turned down by placing reliance upon a judgment delivered by Hon’ble Division Bench of this Court in Birbal v. Union of India (HP) (DB) 2006 (3) SCT 319 wherein this Court had turned down a similar plea of delay and laches by recording the following reasoning: “Faced with this situation, learned counsel appearing for the respondent, contended that appeal of the petitioner against the order rejecting his case for disability pension was dismissed and communicated vide letter dated 20.12.1989, whereas writ petition has been filed on 29.8.2004 after a lapse of 15 years and as such, the same deserved to be dismissed on the ground of delay and laches. It is true that petitioner has filed writ petition after a lapse of 15 years. However, the record shows that the petitioner had been regularly representing to the authorities and his claim was declined only on the ground that the disability was not attributable to military service. We having found that the disability was attributable to the military service, there is no alternative but to quash the orders rejecting the case of the petitioner for disability pension. Moreover, delay in approaching the Court, by itself is not enough to defeat the claim of the petitioner for disability pension. However, on account of delay, we decline the petitioner’s prayer for the payment of interest.” 6. Now, in so far as the decision in Baljor Singh’s case (supra) is concerned, the facts thereof are clearly distinguishable as in that case the discharge was not sought on compassionate grounds as was sought in the instant case. Therefore, in this backdrop, the only question which necessarily arises for consideration is as to whether on account of seeking discharge on compassionate ground, the writ petitioner looses his right to claim disability pension although such disability had been attributable and aggravated on account of military services. The answer to this is found in the provisions as contained in the Pension Regulations 173, 173A, 183 and 186 which read as under: “173. Unless otherwise specifically provided a disability person consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed at 20 percent or over. The question whether a disability is attributable to or aggravated by military service shall be determined under the Rule in Appendix II.” “173-A. Individuals who are placed in a lower medical category (other than ‘E’) permanently and who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided or who are unwilling to accept the alternative employment or who having retained in alternative appointment are discharged before completion of their engagement, shall be deemed to have been invalidated from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations. Note …… ……… … 183. Note …… ……… … 183. The disability pension consists of two elements viz., service element and disability element which shall be assessed as under: 1. Service element: Note..…………. (2) Disability element: “186. (1) An individual who is invalidated out of service with a disability attributable to or aggravated by service but assessed at below 20 per cent shall be entitled to service element only. (2) An individual who was initially granted disability pension but whose disability is re-assessed at below 20% subsequently shall cease to draw disability element of disability pension from the date if falls below 20 per cent. He shall, however, continue to draw the service element of disability pension.” 7. From a combined reading of the above provisions, it would appear that there are two elements of disability pension- service element and disability element. The disability pension is granted where the individual is invalidated out of service on account of disability which is attributable to or aggravated to the military service in non-battle casualty and the same is assessed at 20% or more. Under Regulation 173A, individuals placed in lower medical category (other than ‘E’) permanently and discharged in the circumstances mentioned therein are also “deemed to have been invalidated from service” for the purpose of entitlement rules laid down in Appendix II. Regulation 183 lays down the manner in which the service element and disability element are to be calculated for the purpose of determining the amount of disability pension. Under Regulation 186 where individual is invalidated out of service with a disability attributable to or aggravated by service but the same is assessed less than 20%, he is entitled to only service element of disability pension. 8. From a further perusal of the aforesaid provision, it is clear that invalidating from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations is in a lower medical category than that in which he was recruited will be treated as invalidated from service. JCO/OR and equivalents in other services who are placed permanently in a medical category other than ‘A’ and are discharged because no Alternative or Shelter Appointment can be provided , as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have been invalidated out of service. 9. 9. It is admitted case of the parties that at the time of recruitment the writ petitioner did not have any disability and suffered 30% fatal injury while discharging his official duty, undisputably thereafter was assessed at 30%. Once the petitioner was in lower medical category according to Rules 1 & 2 of Appendix II of Pension Regulations 173, he was required to be treated as having been invalidated from service. 10. The appellants would then contend that the writ petitioner was discharged from service due to domestic problem on compassionate grounds as had been reflected in his letter dated 3.4.1989 and, therefore, it cannot be said that the writ petitioner was interested to continue in his services whereas the appellants retained him in service on sheltered employment in the low medical category till the completion of his terms of his engagement. This submission deserves rejection for the simple reason that it is undisputed that the writ petitioner has suffered disability to the extent of 30% and apart from other reasons given in his request for discharge, one of the reasons was also that the writ petitioner was not able to perform his duties as well in the same manner which he had been doing earlier which essentially meant that he was making a clear reference to the disability suffered by him. Being a committed soldier, the writ petitioner wanted to serve the Nation but at the same time did not want his disability to be a hindrance in the service, particularly when it had begun to take its toll which may have further caused frustration in the mind of the writ petitioner. The writ petitioner cannot be bogged down to the literal interpretation of his letter and word by word dissection of the same, rather the intention of the letter would have to be gathered. Even otherwise, it has not been disputed that the disability suffered by the writ petitioner occasioned when he was serving the Nation and wherein he suffered 30% disability which cannot go unrewarded. 11. Even otherwise, it has not been disputed that the disability suffered by the writ petitioner occasioned when he was serving the Nation and wherein he suffered 30% disability which cannot go unrewarded. 11. In so far as the question of delay as raised by the appellants are concerned, suffice it to say that this is not a case where in the interregnum third party rights have been created that apart, we are bound by the ratio of the judgment passed by this Court in Birbal vs. Union of India wherein virtually similar facts and circumstances of the case, the delay of 15 years in filing of the petition had been condoned. 12. In view of the aforesaid discussion, we find no merit in the appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.