Surender Singh vs Union Of India An Ors.
2014 Latest Caselaw 4365 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Decision: 11.09.2014

+     W.P.(C) 4421/2014
      SURENDER SINGH                                      ..... Petitioner
              Through:             Mr. M.K. Gaur, Adv.

                          versus

      UNION OF INDIA AN ORS.                   ..... Respondents
               Through: Mr. Manish Mohan, CGSC with
                         Ms. Manisha Rama Singh,
                         Mr. Gaurav Sharma & Ms. Puja, Advs.

      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
      HON'BLE MR. JUSTICE NAJMI WAZIRI

KAILASH GAMBHIR, J. (Oral)

1. Mr. Manish Mohan, the learned Standing Counsel for the respondents submits that he can assist the Court even in the absence of the counter affidavit which was to be filed by the respondents. The matter is accordingly taken up for final hearing.

2. It is the case of the petitioner that he was awarded a police medal by the Hon'ble President of India for gallantly fighting the terrorists of Punjab on 7th February, 1992, the day when he received a bullet injury to his spinal cord. The Doctor who attended to him advised that if the bullet is removed from the spinal cord, it can either result in the permanent disablement of the petitioner or his death. The petitioner preferred to get himself medically treated without getting the bullet removed and after his treatment, the level of his disablement was assessed at 60% by the Safdarjung Hospital.

3. It is further submitted that after suffering such disability, he was posted to a high altitude area by the respondents without realizing and appreciating the fact that the petitioner would not be in such a condition to perform duties at such high altitude areas. Getting frustrated by such a decision of the respondents, the petitioner submits that he was compelled to seek voluntary retirement. In consequence, the petitioner requested the respondents to discharge him from service with effect from 31st October, 2002 and thereafter, he was granted ordinary service pension vide PPO No.239030252101 dated 9.1.2003. The grievance of the petitioner is that he is entitled to liberalized pension under Clause 'D' of CCS (EOP) Rules as he took discharge from service due of the fact that he had received a serious bullet injury to his spine while fighting the terrorists and not just out of his own choice and volition. The petitioner had also preferred an appeal but the same was rejected by the respondents on the ground that there is no provision for liberalized service pension in case of voluntary retirement.

4. In the present petition, the petitioner has placed on record the photo copy of a newspaper clipping wherein he has been shown receiving a police medal from the Home Minister during the investiture ceremony which was held at Vigyan Bhawan. This photograph clearly shows that the petitioner was being assisted/helped by some officer, even for him to stand properly. We are totally appalled and upset with the attitude of the respondents in treating the members of the forces in such a despicable and inhumane manner. Weren't the respondents aware of the fact that the petitioner had received a bullet injury while fighting the terrorists? Weren't they also aware of the circumstances due to which he was compelled to seek voluntary retirement?

5. Clause 'D' of CCS (EOP) Rules clearly envisages that if the disability is attributable to acts of violence by terrorists or anti-social elements then the officer is entitled to liberalized pension and this Rule has been ignored by the respondents. The case of the petitioner is also squarely covered by the Division Bench judgment of this Court in the case of Mahavir Singh Narwal vs. Union of India & Anr., 111 (2004) DLT 550 (DB) and relevant paragraphs of the same are reproduced as under:

5. We have carefully considered the arguments advanced by the learned counsel for both the parties. Learned counsel for the petitioner has placed reliance on Ex Subedar Baljor Singh Vs. Union of India and others a Division Bench Judgment of this Court reported as SLR 1996 Vol. 6 page 142. However in that case the discharge was not sought on compassionate ground as has been done in the instant case. The question is whether on account of seeking discharge on compassionate ground the petitioner looses his right to claim disability pension although such disability had been attributable and aggravated on account of military service. The reliance placed by the learned counsel for the respondent on Pension Regulations 173 provides an answer to this question. Regulation No. 173 lays down where disability is attributable or aggravated by military service and how same has to be determined under the rules in Appendix II. Rules 1 and 2 of Appendix II are as follow:

:"1. With effect from 1st April, 1948 in supersession of all previous orders on the subject, the entitlement to disability and family pension, childrens allowances and death gratuities will be governed by the following rules. Invalidating from service is a necessary condition for the grant of a disability pension. An individual who at the time of his release under the Release Regulations is in a lower medical category than that in which he was recruited will be treated as invalidated from

service. JCOS/ORS/NCS(E) who are placed permanently in a medical category other than "A" and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have invalidated out of service.

2. Disablement or death shall be accepted as due to military service provided it is certified that :

(a) the disablement is due to a wound /injury, or disease which

(i) is attributable to military service or

(ii) existed before or arose during military service and has been and remains aggravated thereby,

(b) the death was due to or hastened by

(i) a wound, injury or disease which was attributable to military service , or

(ii) the aggravation by military service of a wound , injury or disease which existed before or arose during military service."

6. On careful perusal of the aforesaid rule it is manifestly clear that invalidation from service is a necessary condition for grant of disability pension. What has to be seen for entitlement for disability pension is whether an individual at the time of his release was in a low medical category than that in which he was recruited if it was so then such person will be treated as invalidated from service. It is the admitted case of the parties that at the time of recruitment the petitioner did not have any disability. It is also the admitted case of the parties that the petitioner got

disability on account of stress and strain of military service and his category was initially lowered down temporarily to CEE on 21st September, 1978 for a period of 6 months and after the Release Medical Board examined the petitioner on 11th April, 1979 it found the disability to be 30% aggravated by stress of military service and he was down graded to permanent low medical category . Once the petitioner was in low medical category according to Rules 1 and 2 of Appendix II of Pension Regulations 173 he shall be treated as invalidated from service. It seems that on careful consideration of the Pension Regulations 173, read with Rules 1 and 2 of Appendix II, the respondents themselves have recommended for grant of disability pension to the petitioner vide their letters dated 3rd April, 1986 and subsequently on 11th April, 1986 which is as under.

DISABILITY PENSION CLAIM : EX-NO 3157896 SEP MAHAVIR SINGH NARWAL.

1. Further to this Headquarters letter of even number dated 03 Apr 86.

2. The disability pension claim in respect of Ex No. 3157896 Sep Mahavir Singh Narwal has been re-examined threadbare by the competent authority. During the course of examination it is seen that the individual was placed in temporary low medical category "CEE" for six months with effect from 21 Sep 78. Having been placed in low medical category he had applied for discharge on compassionate grounds on 19 Feb 79.

3. He was discharged from service on 24 Apr 79 after completion of all the medical formalities which are applicable in case of disposal of permanent low medical category personnel.

4. It has been opined by the competent authority that his discharge from service can not be legally termed as " on

compassionate grounds at his own request". But it should be considered as disposal of low medical category personnel because of non availability of suitable sheltered appointment for him. Therefore the cause and clause of his discharge from service requires change to facilitate him to get disability pensionary benefits.

5. In view of foregoing, necessary action may therefore be taken to change the cause and clause of discharge and to initiate disability pension papers immediately . Action taken be intimated to this Headquarters latest by 30 Apr 86 and later a monthly progress report by 5th of each month be submitted till finalisation of his disability pension cause.

6. All previous letters issued on the subject will be treated as cancelled.

Sd/-(P.N. Reddy) Varishth Civilian Staff Adhikari/SCS Shayak Adjutent General/AAG PS4 for Adjutant General."

7. The arguments advanced by the learned counsel for the respondents that these letters were not issued by the competent authority is not of any relevance for grant of disability pension. What is relevant is whether the mandate of Pension Regulation 173 read with Rules 1 and 2 of Appendix II has been taken into consideration or not. Merely because a person has attained discharge on compassionate ground although his disability has been acquired on account of stress and strain of military service will not be a ground to reject the claim of disability pension, it has been an invalidated act in terms of Appendix II of Rule 173. We allow the writ petition and direct the respondent to grant disability pension to the petitioner on the basis of assessment of 30% disability as opined by the Release Medical Board in the year 1979

up to date . For future disability pension the respondent may conduct another medical board to assess the percentage of disability of the petitioner. Arrears of disability pension be paid to the petitioner within a period of 8 weeks. If the same are not paid within 8 weeks the petitioner shall be entitled to the interest at the rate of 9% on the amount of arrears. With these directions the writ petition is allowed."

6. In view of the aforesaid judgment and considering the fact that the petitioner had received a bullet injury to his spine while fighting the terrorists, which ultimately led to the petitioner's voluntary retirement, we direct the respondents to grant liberalized pension to the petitioner on the basis of his disability at 60% which will be rounded off to 75% from the date of his entitlement. Entire arrears towards his liberalized pension shall be paid by the respondents within a period of eight weeks from today along with the interest @ 9% per cent per annum on the amount of arrears.

7. The present petition is disposed off in the above terms.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J SEPTEMBER 11, 2014/ak