Judgment:
PADMANABHAN NAIR, MEMBER (J).
The petitioner, who is an ex-serviceman, has filed this Transferred Application (Writ Petition) for the limited relief of granting service element of disability pension. The petitioner joined the 122 Infantry Battalion (Territorial Army) on 31.8.1974 and was discharged on 23.2.1981 and had earned 2 years and 308 days of embodiment service in the Territorial Army. After his discharge, he got re-enrolled in Defence Security Corps (hereinafter referred to as, 'DSC') on 24.11.1981 as a Sepoy. He was discharged from the service of DSC on 11.4.1991. In the discharge certificate issued by the DSC, the reason for discharge was shown as completion of the term of engagement. According to the petitioner, that entry in the discharge certificate is not correct and he was discharged before completion of initial term of ten years and the real reason for his discharge was invalidment. His further case is that, though he is entitled to get service element of disability pension for 12 years and 308 days, he was granted only the disability element and he was never granted the service element. The petitioner issued a notice through his lawyer to the respondents on 10.11.2003. The second respondent sent Ext.P4 reply, informing the petitioner that he is not entitled to service element. It is averred that the said stand taken by the second respondent is illegal and incorrect, and the petitioner is entitled to get service element also. Hence, this application for quashing Ext.P4 reply and also for a direction to the respondents to grant service element also to the petitioner from the date of discharge treating that he had put in a service of 12 years and 308 days.
2. It is admitted by the respondents that the petitioner has rendered 2 years and 308 days of embodiment service in 122 Infantry Battallion (Territorial Army). It is also admitted that the petitioner has got himself enrolled in the DSC on 24.2.1981 (24.11.1981, as per Ext.P2) and he was discharged on 10.4.1991 AN. It is stated that the petitioner was placed in Low Medical category CEE (Temporary) with effect from 9.12.1987 for a period of six months, which was enhanced to CEE (Permanent) for two years with effect from 26.7.1988. He was upgraded to BEE (Temporary) with effect from 7.9.1990 for 24 weeks and again downgraded to Permanent Low Medical Category, CEE (Permanent) with effect from 17.12.1990. The specific case put forward by the respondents is that, the petitioner was discharged from DSC not because of his disability, but under Rule 13(3) item III (i) of the Army Rules, 1954, on completion of his terms of engagement. The petitioner was paid Death cum Retirement Gratuity and Service Gratuity. Since the petitioner has not put in minimum service of 15 years, he was not paid service pension. It is stated in the counter affidavit that in DSC, a person is re-enrolled initially for a period of ten years with a provision for further extension of service by five years spell each time or till the person attains superannuation at the age of 55 years, whichever is earlier. It is further stated that to get extension the individual must submit written willingness and he must be recommended by the Officer Commanding Unit and by the officers in chain of command at the formation Head Quarters. Further, he should not be in Permanent Low Medical Category and he should also meet the disciplinary criteria. It was contended that since the petitioner was already placed in Permanent Low Medical Category CEE (Permanent) with effect from 17.12.1990, he was not eligible for extension of service in DSC. According to the respondents, the discharge of the petitioner on completion of his initial term of engagement, due to his ineligibility for extension of service, does not tantamount to invalidating out of service as alleged by the petitioner. It was also contended that the petitioner who was in a Permanent Low Medical Category was brought before the duly constituted Release Medical Board held on 31.12.1990 at the Command Hospital (Air Force), Bangalore for assessing his medical conditions. He was found suffering from Ischaemic Heart Disease 410. The percentage of disability was assessed as 40% for two years, but it was found not attributable to and aggravated by military service. He was also found suffering from Bronchial Asthma 493, which was assessed between 15 to 19 percent and it was found by the Board that it was aggravated by military service. It is admitted that though the Medical Board assessed the second disability between 15 to 19%, the pension sanctioning authority, PCDA (Pensions) Allahabad in consultation with the Medical Advisor (Pensions) fixed the second disability at 20% for a period of five years and the petitioner was granted disability element with effect from 11.4.1991 i.e. the date of his discharge. The disability was reviewed periodically and in 2001, it was made permanent.
3. It was contended that the petitioner is not entitled to get service element. It was further contended that, Regulations 197, 198 and 200 of the Pension Regulations for the Army, 1961 prescribe the grant of invalid pension equivalent to service element to those individuals who have been invalidated out of service on completion of a minimum period of ten years, provided, (a) the disability is neither attributable to nor aggravated by the military service; (b) though the disability is attributable to or aggravated by military service, it is less than 20% and (c) the Low Medical Category individual is discharged from service for lack of alternate employment compatible with his low medical category. It was contended by the respondents that the petitioner was neither invalidated out of service nor discharged from service for lack of alternate employment, but was discharged on completion of term of engagement, and therefore, he is not entitled to get service element counted for disability pension.
4. The petitioner has filed a reply affidavit denying the various averments contained in the counter affidavit and contended that Exts.R1(b), R1(c) and R1(d) produced by the respondents themselves will show that respondents granted disability element treating it as a case which comes under Regulation 173 of the Pension Regulations (Army) and there was an omission to grant service element and the respondents are denying the service element without any justification.
5. There are certain admitted or proved facts. The date of birth of the petitioner is 15.11.1954. The petitioner joined the 122 Infantry Battallion (Territorial Army) on 31.8.1974 and was discharged on 22.3.1981 and he was eligible for 2 years and 308 days of embodiment service in the Territorial Army. After getting discharge on 23.2.1981, on the very next day, i.e. 24.2.1981, he got enrolled in the DSC. It is admitted by both sides that the terms of engagement in the DSC is different from other Corps of the Army. A person is re-enrolled in DSC, initially the engagement is for 10 years. He is entitled to get further extension of service for a spell of five years each, until he attains the age of superannuation of 55 years. For getting extension, the individual must submit willingness, he must be recommended by the Officer Commanding Unit, he should meet the disciplinary criteria and he should not be in a permanent low medical category.
6. According to the petitioner, he had submitted a written willingness. That averment is not denied. As per Ext.P2 discharge certificate issued from the DSC, the character of the petitioner was shown as exemplary. The respondents have no case that the Officer Commanding Unit has not recommended the extension of the petitioner. It is admitted that the only reason for ineligibility for extension of service was that he was put in permanent low medical category, CEE (Permanent). So, the only question that arise for consideration is, whether it is a case of discharge on completion of terms of engagement or it is a case of discharge on the ground of disability.
7. The documents produced by the petitioner shows that he has not attained the age of superannuation. The respondents have no case that the petitioner was unfit for extension of another spell. So, going by the case put forward by the respondents themselves, in the ordinary course, the petitioner was entitled to get further extension. But, that was not granted, only due to his ineligibility on account of permanent low medical category, CEE (Permanent).
8. There is no dispute that the petitioner has not put in a minimum service of 15 years. So, he is not entitled to get service pension. The respondents have contended that it is not a case covered by Regulations 197, 198 or 200 of the Pension Regulations. The petitioner is also not having any such case. Further, in a case covered by Regulation 197, 198 or 200, the individual is not entitled to get any disability element, but he is entitled to get only the service element. To get pension under Regulation 197, the individual must complete ten years of service and he should have been invalidated out on account of disability, which is not attributable to or aggravated by military service, or though aggravated by military service, the percentage is less than 20.
9. In this case, the respondents have been paying disability element alone. The respondents have not offered any explanation as to how the PCDA have come to the conclusion that the petitioner is entitled to get disability element alone. In fact, a reading of Exts.R1(c), R1(d) and R1(e) shows that, PCDA, Allahabad treated it as a case of disability pension under Regulation 173 of the Pension Regulation. In Ext.R1(d) and R1(e), it is specifically stated that the sum total of service element and disability element constituted the disability pension and the award is subject to modification by the competent pension sanctioning authority, on further medical examination of the individual for any purpose, if the disability is reduced or has disappeared or become capable of improvement in the case of permanent award. So, it is clear that, in the normal course, the petitioner was entitled to get extension for a further term of five years each, until he attains the superannuation age of 55 years. He was denied extension and was discharged only on the ground that he is in permanent low medical category, CEE (Permanent). In Mahavir Singh Narwal v. Union of India, 2004 (102) FLR 330, the Honourable High Court of Delhi had held that even if a person is discharged on his own request he is entitled to get disability pension. The learned counsel for the petitioner has submitted that the Apex Court has also confirmed that. The petitioner's case stand on a better footing. So, we are of the considered view that the petitioner is entitled to get service element also in addition to disability element.
10. The next question to be considered is, whether the petitioner is entitled to service element from 11.4.1991. Though he was denied service element, for the first time he issued a notice, Ext.P3, on 10.11.2003. Again he waited for another five years, until he get a reply on 19.3.2008. So, there is laches on the part of the petitioner. Since the cause of disability pension continues from month to month, the Tribunal cannot ignore the laches and delay in filing the petition. So, we are of the view that, petitioner is not entitled to get service element from 11.4.1991. He can claim it only from three years prior to the date of filing the Writ Petition, i.e. from 30.9.2005. We find support to our view, in the decision reported in Shiv Dass v. Union of India and others, 2007 (1) SLR 444, in which it was held that if the petition is filed beyond a reasonable period of three years, normally the Court could reject the same or restrict the relief. So, the petitioner is entitled to get service element also, which is admissible to him, treating his service element as 12 years and 308 days from 30.9.2005. He is entitled to get that amount in future also.
In the result, the application is disposed of in the following terms:
The respondents are directed to calculate and disburse the service element of the disability pension also to the petitioner with effect from 30.9.2005 treating that the petitioner has put in a total service of 10 years and 308 days. The petitioner should also be given service element along with disability element in future also. The amount in arrears shall be paid within six months from the date of receipt of a copy of this order. No costs.
The Registry will serve free copy of the order to the petitioner as well as the Legal Officer for compliance.