Ex. Sepoy Basant Kumar Pandey vs Union Of India & Ors.
2012 Latest Caselaw 538 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP(C) No.530/2012 & CM No.1136/2012

%                        Date of Decision: 25.01.2012

Ex. Sepoy Basant Kumar Pandey                               .... Petitioner

                       Through   Mr.Anilendra Pandey & Mr.D.D.Sharma,
                                 Advocates

                                  Versus

Union of India & Ors.                                    .... Respondents

                       Through Mr.Himanshu Bajaj, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA

ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of order dated 9th July,

1993 discharging the petitioner from the Territorial Army service and

SOS with effect from 10th July, 1993 (FN); order dated 8th December,

1998 declining the claim of the petitioner for disability pension on the

grounds that the disability was neither attributable nor aggravated by

Military Service and that the disability was assessed at less than 20%

and therefore, no disability pension is admissible to the petitioner and

finally the order dated 9th April, 2001 in Civil Writ Petition

No.1905/2001 titled as „Ex.Sepoy Basant Kumar Pandey v. Union of

India & Ors‟ whereby the writ petition filed by the petitioner against the

order dated 8th December, 1998 was dismissed on the ground that the

disability of the petitioner was less than 20% and even the Appellate

Medical Authority who had examined the petitioner had assessed his

disability as less than 20% for five years and thus it was held that the

petitioner is not entitled for any disability pension.

2. The petitioner has asserted that he joined the Territorial Army as

Sepoy in June, 1987 in the Medical Category of AYE (I).

3. Afterwards, the petitioner was invalided out of the service on

medical grounds on 10th July, 1993 as he was downgraded to a Low

Medical Category.

4. According to the petitioner he was posted to various places all

over India during his tenure of about six years and that he remained

healthy throughout his service. However, subsequently the petitioner

was invalided out of the service on account of the disease known as

"Stomach Disorder Operated" and consequently the petitioner was

released from the service with effect from 10th July, 1993 and he was

boarded out.

5. The petitioner pleaded that his claim for disability pension was

withheld on the records of Rajput Regiment, Fatehgarh despite repeated

requests and later on he was informed that the disability pension

claimed by him has been rejected by the pension sanctioning authority

i.e. the Chief Controller of Defense Accounts (Pensions) on the ground

that his disability was neither attributable to or aggravated by military

service and in any case, in his case assessment of disability was less

than 20%.

6. The petitioner had thereafter, filed an appeal against the order of

rejection of his claim for disability pension, which was also declined by

order dated 31st August, 2000.

7. The petitioner further disclosed that he had filed a writ petition

bearing No.1905/2001 seeking the quashing of orders rejecting his plea

for disability pension. However, his writ petition was also dismissed by

order dated 9th April, 2001. The Court had passed the following order

on 9th April, 2001 on the writ petition of the petitioner being CWP

No.1905/2001 titled as „Ex.Sepoy Basant Kumar Pandey v. Union of

India & Ors‟:-

09.04.2001

Present: Mr.H.S.Raghav for the petitioner Ms.Anamika Aggarwal for the respondents.

C.W.1905/2011

Counsel for the petitioners during the course of this argument has submitted that the petitioners was examined by the Medical Board and according to the opinion of the Medical board, the percentage of disability of the petitioner was 30%. The said submission made during the course of arguments is not supported by any averments in the writ petition.

My attention is drawn to the order dated 8th December, 1998 which clearly indicates that the disability of the petitioner was assessed at less than 20%. Even the Appellate Medical Authority who had examined the petitioner had assessed the disablement of the petitioner at less than 20% for five years as appears from communication at Annexure P-4.

In that view of the matter, there is no merit in the writ petition and the same stands dismissed."

8. In the writ petition, the petitioner has challenged the order of his

discharge dated 9th July, 1993 and the order dated 8th December, 1998

declining his claim of disability pension and the order dated 9th April,

2001 passed by this Court in the writ petition of the petitioner, on the

ground that the petitioner could not be discharged under Section 47 of

The Persons with disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995. According to the petitioner he should

have been shifted to some other post with the same pay scale and

service benefits and if it was not possible to adjust the petitioner

against any post, the respondents should have created a

supernumerary post until the availability of a suitable post for the

petitioner. The petitioner also relied on Kunal Singh v. Union of India &

Anr, (2003) 4 SCC 524 to substantiate his pleas.

9. The petition is contested by the respondents. Mr.Himanshu Bajaj

who has appeared on advance notice contended inter-alia that the claim

of the petitioner for disability pension has already been adjudicated and

rejected by this Court by order dated 9th April, 2001 and that the said

order cannot be challenged by the petitioner by filing the present writ

petition as no Letters Patent Appeal was filed against the said order nor

was it challenged by filing a Special Leave Petition. The respondents

have contended that though the order dated 9th April, 2001 has been

passed by a Single Judge of this Court in a writ petition, the same

cannot be challenged by filing another writ petition before a Division

Bench. Regarding the plea that the petitioner could not have been

discharged and should have been adjusted to some other post with the

same pay scale and service benefits or if the post was not available then

he should have been kept on the supernumerary post until a suitable

post would have been available to the petitioner by invoking Section 47

of The Persons with disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act, 1995, it has been contended on

behalf of the respondents that this cannot be a ground as the plea

would be barred on account of the constructive res-judicata, since the

said plea was available to the petitioner when the earlier writ petition

was filed and the petitioner ought to have taken this plea in his petition

being CWP No.1905/2001 which was filed by him.

10. The learned counsel has also contended that in any case under

the proviso to Section 47, there has been a notification exempting the

applicability of the provisions of the said Act and consequently the

petitioner is not entitled for any relief by invoking any provision of the

said Act.

11. This Court has heard the learned counsel for the parties in detail.

The petitioner had filed the writ petition bearing CWP No. 1905/2001

for challenging his discharge from the service and also for claiming the

disability pension. However, the Single Judge of this Court on perusing

the record pertaining to the petitioner had held that since the disability

of the petitioner was assessed as less than 20% and the petitioner had

been unsuccessful in producing any document that proved otherwise,

the petitioner was not entitled to receive the disability pension.

Aggrieved by the order of the Single Judge of the High Court, the only

remedy available to the petitioner was to move a Letters Patent Appeal

in order to address his grievances before the proper forum, rather than

filing another writ petition before this Court. The present writ petition in

the circumstances is barred under law since it is based on the same

cause of action already adjudicated upon by the Single Judge in CWP

No. 1905/2001. Therefore on this ground alone the writ petition is

liable to be dismissed.

12. In any case even if the plea of the petitioner, that he should not

have been discharged but instead ought to have been adjusted to some

other post with the same pay scale and service benefits or in the very

least should have been kept on a supernumerary post until a suitable

post would have been available to the petitioner, by placing reliance on

Section 47 of the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 is to be taken into

consideration, the same cannot to be accepted in view of the notification

dated 28th March, 2002 exempting the applicability of the provision of

the Act to the petitioner. The said notification categorically stipulates

that in exercise of the powers conferred by the proviso to Section 47 of

the Persons with Disabilities Act, 1995, the Central Government having

regard to the type of work carried on hereby exempts all categories of

posts of combatant personnel of the Armed Forces from the provisions

of the said section. The power prescribed under the proviso to Section

47 clearly enumerates that the appropriate Government may having

regard to the type of work carried on in any establishment by

notification and subject to such conditions if any as may be specified in

such notification exempt any establishment from the provisions of this

section. Therefore, in any case the petitioner who was a Sepoy in the

Armed Forces is exempt from the benefits inscribed under Section 47 of

the Persons with Disabilities Act, 1995.

13. In the totality of the facts and circumstances and for the

foregoing reasons there are no grounds to hold that the petitioner is

entitled for any disability pension. The writ petition in the facts and

circumstances is without any merit and the decision of the respondents

to deny the disability pension since the assessment of the petitioner‟s

disability was less than 20%, cannot be faulted. The petitioner has

failed to make out any such illegality, irregularity or perversity in the

case of the respondents or the decision of this Court in CWP No.

1905/2001 dated 9th April, 2001 which will require any interference by

this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India. The writ petition is without any merit and it is,

therefore, dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 25, 2012 „k‟