Ex Nk Sultan Singh vs Union Of India & Ors.
2008 Latest Caselaw 1362 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        WP (C) No.7941 of 2003


%                                     Date of decision: 18.08.2008


EX NK SULTAN SINGH                                  ...PETITIONER
                           Through:     Col. S.R. Kalkal, Advocate.


                                  Versus


UNION OF INDIA & ORS.                              ...RESPONDENTS
                    Through:            Captain Rahul Soni
                                        for the Respondents.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG


1.        Whether the Reporters of local papers
          may be allowed to see the judgment?            No

2.        To be referred to Reporter or not?             No

3.        Whether the judgment should be
          reported in the Digest?                        No


SANJAY KISHAN KAUL, J. (Oral)

1. The petitioner was enrolled in the regular Army on

10.10.1984 as a Combatant Soldier and was posted in

1992-1993 at high altitude at the Siachin Glacier. The

petitioner claims that he was deployed in the Operation

Meghdoot at Sonam post, Siachin and while facing

temperature of minus (-) 45 to minus (-) 49 degrees

celcius developed frost bite on both feet. The petitioner

was admitted as a battle casualty of Operation Meghdoot

at Partapur Hospital on 13.2.1993 and was evacuated by

Air to Command Hospital Chandimandir for further

treatment on 18.2.1993. The frost bite resulted in

amputation of both the toes of the feet of the petitioner

and the petitioner was invalidated out of service on

16.11.1994 as a case of 100 per cent disability. The

Commanding Officer of the petitioner also issued a

certificate dated 15.5.1995 certifying that the petitioner

was deployed in Operation Meghdoot.

2. The pension claim of the petitioner was submitted to the

CCDA (P) Allahabad who reduced the disability of the

petitioner to 80 per cent on 16.12.1995. The appeal filed

against the said order also failed and thus the petitioner

had to file a civil writ petition, being CWP No.4549/1996

which was allowed on 21.11.1999 on the premise that

once the Medical Board had opined the case of the

petitioner as one of 100 per cent disability the CCDA (P)

Allahabad could not have reduced the percentage of

disability. The petitioner was also held entitled to certain

other allowances including attendance allowance.

3. The said judgement is stated to have been honoured by

the respondents.

4. The petitioner has now made a two-fold grievance.

Firstly that the petitioner is entitled to a higher pension

as a war injury pension case as per the notification dated

30.10.1987 of the Government of India, Ministry of

Defence. Secondly the petitioner claims a sum of Rs.1.00

lakh as ex-gratia payment which has been held entitled

to all war injury cases w.e.f. 1947.

5. The factual matrix aforesaid is not in dispute in terms of

the copy of the counter affidavit handed over to us in

Court today since the original counter affidavit has still

not been brought on record by the respondents despite

the number of dates of hearing. It emerges from the

counter affidavit that the case of the petitioner has been

rejected on the ground that he suffered a frost bite which

should not be treated as a war injury or war like

condition. The cause of disease is only due to extreme

cold climatic condition and it is pleaded that the

petitioner is not entitled to war injury pension. The

petitioner has clearly averred in paragraph 4 of the

petition that he was deployed at Sonam at Siachin

Glacier during operation Meghdoot and there is no denial

to the said averment in the counter affidavit.

6. Learned counsel for the petitioner has drawn our

attention to our order passed in WP (C) No.3316/2008

titled Naik Jaswant Singh Vs. Union of India & Ors. on

27.5.2008 wherein it was observed as under:

"The petitioner relies upon a policy decision of the respondents dated 31.1.2001 which makes a categorization of cases where death or disability has been attributable to or aggravated by military service. Category E of Para 4.1 provides for death or disability arising as a result of the incidents mentioned under the same and at sub-para (i), it also includes "Operations specially notified by the Govt. from time to time".

Learned counsel for the petitioner submits that the posting at Siachin Glacier is per se a special operation which is so notified though he does not have a copy of the Notification as also that a perusal of the counter affidavit does not bring out a clear picture and the only defence taken is that the petitioner's case was not classified as a battle casualty as per existing Rules.

In our considered opinion, insofar as the disability of the petitioner is concerned, there can be no doubt that the same is a direct result of the petitioner being caught in a link for a long duration of time and exposed to snow and cold as per (Annexure P-1) of the Respondents. This act thus falls within the definition of `battle casualty' provided that the post at Siachin Glacier is categorized as a special operation and is duly notified.

We thus consider it appropriate to direct the respondents to consider the case of the petitioner in terms aforesaid and examine whether the disability as per the allegations of the petitioner arising due to his posting at Siachin Glacier falls within para 4.1 Category E (i) of the policy decision dated 31.1.2001. An appropriate action be taken within three weeks from today, to be duly communicated to the petitioner through counsel, wherein the petitioner would be entitled to either continue in service failing which he would retire on 30.6.2008."

7. We are of the considered view that a similar direction is

liable to be passed in the case of the petitioner insofar as

it relates to the facts of the case restricted to the claim of

the war injury pension, attendance allowance and ex

gratia payment. In fact the facts of the present case are

better inasmuch as there is not even a factual dispute

raised about the deployment of the petitioner at Sonam

post at Siachin Glacier during Operation Meghdoot. To

constitute a war injury case it is not that the person must

suffer a bullet injury in view of the definition of a battle

casualty as referred to aforesaid. We may note that the

petitioner ought to have raised even this claim in the

earlier writ petition, but the matter being one of pension,

which is a continuing cause, we examined the matter on

merits.

8. A writ of mandamus is issued directing the case of the

petitioner to be examined within the aforesaid

parameters for grant of war injury pension, attendance

allowance and ex gratia payment within a period of three

(3) months from today and necessary action be taken in

pursuance thereto. Needless to say that the payments

made to the petitioner would be adjusted against the

payments, if any, found due to the petitioner, which in

turn are restricted to the period of three years prior to

filing of the petition.

9. The petition is allowed leaving the parties to bear their

own costs.

SANJAY KISHAN KAUL, J.

AUGUST 18, 2008                           MOOL CHAND GARG, J.
b'nesh