IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 15227 of 2007
DATE OF DECISION : MAY 11, 2009
JAGGAR SINGH
....... PETITIONER(S)
VERSUS
UNION OF INDIA & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Ajit Sihag, Advocate, for the petitioner(s).
Ms. Geeta Singhwal, Advocate.
Mr. Ram Chander, Advocate.
AJAI LAMBA, J.
This petition under Articles 226/227 of the Constitution of
India prays for issuance of a writ in the nature of certiorari quashing order
dated 18.11.2002 (Annexure P-13) and order dated 16.3.2007 (Annexure P-
24). Under the impugned orders, the claim of the petitioner for grant of
disability pension has been denied, essentially on the ground that the
petitioner had been discharged from service, being inefficient soldier, under
the provisions of Rule 13(3), Item III (v) of the Army Rules, 1954.
Civil Writ Petition No. 15227 of 2007 2
All the relevant facts have not been given in the written
statement, therefore, Shri Ram Chander, Advocate, appearing for Union of
India, has supplied a document dated 15.4.2008, which is under signatures
of Lt. Col. Navrattan Singh, Chief Record Officer for OIC Records, which
reflects the complete sequence of facts. This document is taken on record
as Annexure ‘A’.
The uncontroverted facts are that the petitioner was enrolled
in the Army on 28.3.1988. While the petitioner was serving 19 RR
(SIKH LI) in Counter Insurgency Operation (Jammu and Kashmir), he
sustained an injury due to an Improvised Explosive Device Blast (IED) on
11.10.1995. The blast resulted in an injury viz. Compound Fracture
Lower Shaft Tibia Fibula (Left), and was regarded as battle casualty,
having been sustained in Counter Insurgency Operation in Jammu and
Kashmir.
The petitioner initially was placed in low medical category
CEE (Temporary) with effect from 16.2.1996 at Command Hospital,
Chandimandir by a Medical Board. On review of his medical condition,
the petitioner was placed in low medical category BEE (Permanent) with
effect from 16.2.1997 by a Medical Board held at Military Hospital,
Fatehgarh, and he remained in that category with effect from 10.2.1999 on
subsequent review at Military Hospital, Jalandhar Cantt.
It seems that the petitioner was locally discharged from
service on 11.8.2000 under Rule 13(3), Item III (v) of the Army Rules on
the ground “service no longer required as an inefficient soldier”. The
details of misconduct of the petitioner have been given, indicating the fact
Civil Writ Petition No. 15227 of 2007 3
that the petitioner incurred 9 red ink entries and 3 black entries. The
petitioner was served with a show cause notice dated 27.4.2000. The
petitioner responded to the same, however, the Commander, 350 Infantry
Brigade sanctioned the discharge of the petitioner on disciplinary grounds,
the petitioner having been found to be undesirable as he had established a
bad example to the organisation.
It seems that the case of the petitioner was not even
considered for the purpose of grant of disability pension in view of the
fact that Rule 13(3), Item III (v) of the Army Rules, for discharging him,
had been invoked. The case was forwarded to the PCDA (P), Allahabad,
which authority returned the same unactioned for want of Battle Casualty
Part II Order. The disability pension claim was resubmitted, duly
rectified, to the PCDA (P), Allahabad, vide letter dated 6.8.2002. The
same, however, was rejected vide order dated 8.10.2002, stating that the
petitioner had been discharged from service being inefficient soldier.
Rules 173 and 173-A of the Pension Rules for the Army,
1961 (Part-I) provided as under:-
“173. Unless otherwise specifically provided a
disability pension consisting of service element and disability
element may be granted to an individual who is invalided 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 per cent or over.
The question whether a disability is attributable to or
aggravated by military service shall be determined under the
Civil Writ Petition No. 15227 of 2007 4rule 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 invalided from
service for the purpose of the entitlement rules laid down in
Appendix II to these Rules.
Note: The above provision shall also apply to
individuals who are placed in a low medical category while
on extended service and are discharged on that account
before the completion of the period of their extension.”
Para-3 of the impugned order dated 16.3.2007 (Annexure P-
24) admits that the petitioner was graded to low medical category due to
the injury suffered on 16.2.1997, as detailed above, during Operation
RAKSHAK with effect from 16.2.1997. In para-6 of the impugned order,
it has been stated by the respondents that under letter dated 20.7.2006,
issued by the Ministry of Defence, “PBOR who are discharged
prematurely at their own request or on administrative ground after earning
4 or more red ink entries are not entitled for grant of disability pension
and, therefore, claims of such personnel should not be processed at all,
even if they may otherwise be fulfilling the other eligibility conditions”.
Civil Writ Petition No. 15227 of 2007 5
The contention of the learned counsel for the petitioner is that
the petitioner, while serving the nation, received the injury, which was
termed as “Battle Casualty”. The discharge of the petitioner on
administrative ground cannot possibly dis-entitle the petitioner from
payment of disability pension.
Learned counsel for the respondent-State has referred to
Annexure R-1 i.e. Appendix ‘C’ to Integrated HQ of Ministry of Defence
(Army) letter dated 20.7.2006, which provides as under:-
“2. The following categories of ex-Army personnel are not
eligible for grant of disability pension and, therefore, claims
in respect of such personnel should not be processed at all,
even if they may otherwise be fulfilling the twin eligibility
conditions for the same as brought out in the foregoing
paragraphs :-
(a) xx xx xx xx
(b) xx xx xx xx
(c) PBOR who are discharged prematurely at their
own request or on administrative ground after earning 4
or more red ink entries.”
A conjoint reading of Rules 173 and 173-A of the Rules and
the provisions of Ministry of Defence letter dated 20.7.2006, indicates that
while the Rules provide for grant of disability pension to an individual
who is invalided out of service on account of disability, which is
attributable to or aggravated by military service in non-battle casualty and
is assessed at 20% or over, the provisions of the letter provide for the
Civil Writ Petition No. 15227 of 2007 6
categories of ex-Army personnel who are not entitled to the grant of
disability pension. The categories narrated in letter dated 20.7.2006
include PBOR who are discharged prematurely at their own request or on
administrative ground after earning 4 or more red ink entries.
This Court has considered the issue of entitlement of
disability pension of a person who is discharged at his own request viz.
the first component of sub-para (a) of Para-2, reproduced above. In this
regard, reference may be made to a Division Bench judgment of this Court
in Naik Amrik Singh v. Union of India and others, CWP 10174 of 2006
decided on 1.4.2008. The relevant portion of the judgment reads as
under:-
“Admittedly, the disability suffered by the petitioner is
attributable to and aggravated by military service. The
question involved is – whether on account of seeking
discharge on compassionate ground, the petitioner has lost his
right to claim disability pension although the disability is
attributable and aggravated on account of military service.
Had the petitioner been invalidated out of military service on
account of 20 % disability for life due to Gun Shot Wound
suffered by him during enemy action in Kargil Sector during
Operation RAKSHAK, he would have been granted the
disability pension along with service element of pension.
Merely because the petitioner has attained discharge on
compassionate ground although his disability is attributable
to and aggravated by Army service, it will not be a ground to
Civil Writ Petition No. 15227 of 2007 7reject his claim of disability pension.
xx xx xx xx xx
xx xx xx xx xx
For the aforesaid reasons, we allow this writ petition
and direct the respondents to grant disability pension ……”
Similar is the effect of a Division Bench judgment of the
Delhi High Court in Mahavir Singh Narwal v. Union of India and another,
CW No.2967 of 1989 decided on 5.5.2004, which has been affirmed by
the Hon’ble Supreme Court of India in Special Leave to Appeal (Civil)
No.24171 of 2004 (Union of India and another v. Mahavir Singh Narwal
(Dead) by LRs.).
The gist and spirit of the law laid down by this Court and the
Delhi High Court is that the purpose of giving disability pension is
disability suffered by a person which is attributable to military service or
aggravated by military service. An individual, under the Rules extracted
above, is entitled to disability pension on acquiring disability in the
process of his serving the Army. Any differentiation, such as the one
suggested by the respondents, would clearly be unreasonable, injudicious,
illogical and arbitrary.
In the case in hand, it is the admitted case that the petitioner
was serving the Indian Army in Operation RAKSHAK. While on duty, an
IED Blast occurred, which caused fracture on the left lower limb of the
petitioner, resulting in disability. It is a clear case which would fall within
the four corners of disability which is attributable to military service. The
case of the petitioner, rather, is that of a Battle Casualty. The petitioner
Civil Writ Petition No. 15227 of 2007 8
became disabled in line of duty while serving the nation and, therefore, at
the time of discharge, for whatever reasons, the petitioner was a disabled
man. It is not the case of the respondents that the petitioner suffered
disability because he had indulged in some illegal act that was contrary to
the Army Rules and Regulations.
Considering the peculiar facts and circumstances of the case
and as it is the admitted case of the respondents that the petitioner had
suffered the disability which is directly attributable to military service, in
my considered opinion, the claim of the petitioner for disability pension
cannot be denied because he was discharged on invoking the provisions of
Rule 13(3), Item III (v) of the Army Rules, 1954. The discharge of the
petitioner on administrative ground is dehors the claim of the petitioner
for disability pension, he having been disabled while serving the nation.
In view of the above, this petition is allowed.
The respondents are directed to consider the case of the
petitioner for grant of disability pension within 4 months of receipt of a
certified copy of the order.
May 11, 2009 ( AJAI LAMBA ) Kang JUDGE