Lt. Col. (Retd.) Prem Kumar Kapila vs Union Of India And Others on 20 January, 2009

        IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                        CHANDIGARH


                                               C.W.P. No. 1680 of 2008
                                     DATE OF DECISION: January 20, 2009


Lt. Col. (Retd.) Prem Kumar Kapila                   .........PETITIONER(S)


                                 VERSUS

Union of India and Others                            ......RESPONDENT(S)



CORAM: HON'BLE MR. JUSTICE AJAI LAMBA


Present: Mr. B.S. Ghuman, Advocate,
         for the petitioner.

          Ms. Geeta Singhwal, Central Govt. Standing Counsel,
          for the respondents.


AJAI LAMBA, J. (ORAL)

This petition filed under Article 226 and 227 of the Constitution

of India prays for issuance of a writ in the nature of mandamus for releasing

the arrears of disability pension from the year 2000 to 2005, with interest.

Facts as they emanate from the record are that the petitioner was

enrolled as a Commissioned Officer with respondent no. 2 and joined the

Army in the year 1970. The petitioner retired from service on 31.07.2000 in

low medical category with recommendation to get 30% disability pension

on account of Hypertension which was aggravated by military service. The

Release Medical Board held on 13.01.2000 considered 30% disability

pension for two years. The initial claim for disability pension recommended

by the Release Medical Board was, however, rejected by the adjudicating

authority vide order Annexure P-1.

C.W.P. No. 1680 of 2008 -2-

The petitioner preferred first appeal vide Annexure P-2 which,

however, was dismissed vide order Annexure P-3 dated 02.03.2001. The

petitioner preferred a second appeal that has been placed on record as

Annexure P-4 which was considered and allowed vide order Annexure P-5..

Relevant portion of Annexure P-5, when extracted reads as under:-

“I am directed to refer to the second appeal dated 27th

July 2005 submitted by Lt. Col. Prem Kumar Kapila (Retd.) (IC-

32031-N) and to convey the sanction of the President that the

disability ‘Primary Hypertension’ be considered as aggravated

by military service @ 30% for life w.e.f. 21.11.2005 i.e. the date

of Appeal Medical Board.”

Learned counsel contends that the petitioner has been allowed

pension w.e.f. 21.11.2005 for life. The petitioner retired on 31.07.2000.

The petitioner in the intervening has not been allowed pension, however, no

plausible reason or ground has been given out by the authorities.

Learned counsel for the respondent has not been able to dispute

the factual position. Learned counsel has not been able to justify non-

payment of disability pension for the period 2000 to 2005.

I have considered the issue involved. I find that it is the admitted

case of the respondents that the Release Medical Board held on 13.01.2000

had considered the medical condition of the petitioner and as Hypertension

(disease) was found to have been aggravated by military service, 30%

disability pension was recommended for two years. It was the Medical

Board that is the relevant and concerned authority to assess the disability.

The same, however, was rejected by the adjudicating authority vide
C.W.P. No. 1680 of 2008 -3-

Annexure P-1. No reason or the basis for rejection has been given out in

Annexure P-1. Likewise the first appeal was dismissed vide order

Annexure P-3 without taking into account the facts and circumstances

narrated by the petitioner in the appeal. Orders Annexure P-1 & P-3, under

the circumstances are rendered illegal. This is particularly so as the order

passed on second appeal allows disability pension to the petitioner on

account of Hypertension as aggravated by military service, at the rate of

30%, for life.

It is not conceivable that the Medical Board in the year 2000

found the petitioner entitled to 30% disability pension for two years on

account of disease found aggravated by military service. Again on second

appeal the competent authority vide order Annexure P-5 found the

petitioner to be entitled to the same benefit w.e.f. 21.11.2005 for life.

However, for the intervening period, the benefit has been denied. The

action of the respondents in denying the benefit to the petitioner for the

intervening period as claimed in the petition, is clearly fanciful,

inconsistent, unreasonable, irrational, injudicious and, therefore, arbitrary.

In view of the facts and circumstances given out above, the

petition is allowed. The arrears of pension would be released in favour of

the petitioner within three months from the date of receipt of copy of the

order passed today.

There would, however, be no order as to costs.

20.01.2009                                                   (AJAI LAMBA)
shivani                                                          JUDGE