Delhi High Court
Ex Rect Laxman Singh (Tc-54727) vs Union Of India & Ors. on 20 December, 2021
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20th December, 2021
+ W.P.(C) 14209/2021
EX RECT LAXMAN SINGH (TC-54727) ..... Petitioner
Through: Mr.Ajit Kakkar & Ms.Tanya,
Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Archana Gaur &
Ms.Ridhima Gaur, Advs. for
UOI.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. The present petition has been filed by the petitioner
challenging the reply dated 23.07.2021 to the legal notice dated
16.06.2021 served by the petitioner on the respondent, denying
grant of „Invalid Pension‟ to the petitioner. The petitioner
further prays for grant of Invalid Pension to the petitioner from
the date of his discharge from service, that is 01.03.1999,
alongwith interest at the rate of 12% per annum.
2. It is the case of the petitioner that the petitioner was
enrolled in the Assam Rifles on 23.12.1997 in SHAPE-1
medical category, after clearing all the medical and physical
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tests which are part of the screening process. On 14.02.1998,
while the petitioner was on training, he was diagnosed with
„Traumatic Perforation TM (Rt) Severe‟. The petitioner was
invalided out from the service in the medical category 'EEE‟ on
28.02.1999.
3. The petitioner himself discloses in the petition that the
Invalidment Medical Board of the petitioner had opined that his
disability is neither attributable to nor aggravated by the service
and his disability was assessed at 70% for life.
4. In paragraph 4 and 5 of the petition, the petitioner asserts
that the petitioner suffered the disability due to an incident in
the service where the training instructor slapped the petitioner
due to which he lost an eardrum.
5. The learned counsel for the petitioner submits that the
petitioner is entitled to receive Invalid Pension under Rule 38 of
the Central Civil Services (Pension) Rules, 1972 and in terms of
the Office Memorandum no. 21/01/2016-P&PW(F) GOI,
Ministry of Personnel Public Grievances & Pensions
(Department of Pension & Pensioners' Welfare) dated
12.02.2019. In support of the claim, the learned counsel for the
petitioner places reliance on the judgment of the Supreme Court
in Dharamvir Singh vs. Union of India and Others, (2013) 7
SCC 316 and the judgment dated 25.06.2014 passed by the
Supreme Court in Sukhvinder Singh vs. Union of India, Civil
Appeal No. 5606/2010.
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6. As far as the delay in filing of the present petition is
concerned, the learned counsel for the petitioner places reliance
on the judgment of the Supreme Court in Union of India and
Others vs. Tarsem Singh, (2008) 8 SCC 648 to submit that as
the denial of Invalid Pension is a continuing wrong, the same
cannot be stated to be barred by limitation, though in the given
facts the Court may grant relief to the petitioner only for the
period starting from the last three years of filing of the petition.
7. We have considered the submissions made by the learned
counsel for the petitioner, however, find no merit in the same.
8. At the outset, it is noticed that in the legal notice dated
16.06.2021 the petitioner did not attribute any cause to his
suffering from „Traumatic Perforation TM (Rt) Severe‟ for
which he was invalided out from service. The cause now being
attributed in paragraph 4 and 5 of the petition is, therefore,
clearly an afterthought and cannot be accepted.
9. As far as the submission of the learned counsel for the
petitioner that in terms of the judgment of the Supreme Court in
Dharamvir Singh (supra) and Sukhvinder Singh (supra), as
the petitioner was found in SHAPE-1 medical category at the
time of enrolment, his subsequent ailment can only be attributed
to service, cannot also be accepted. As noted hereinabove, the
petitioner himself disclosed that at the time of his invalidment,
the Invalidment Medical Board had opined that his disability is
neither attributable to nor aggravated by the service. The
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petitioner did not put this opinion in challenge for more than
twenty one years.
10. In No. 14666828M Ex CFN Narsingh Yadav vs. Union
of India and Others., (2019) 9 SCC 667, the Supreme Court
has held that "it is not mechanical application of the principle
that any disorder not mentioned at the time of enrolment is
presumed to be attributed to or aggravated by military service.
The question is as to whether the person was posted in harsh
and adverse conditions which led to mental imbalance". It was
further held that "though, the opinion of the Medical Board is
subject to judicial review, the Courts are not possessed of
expertise to dispute such report unless there is strong medical
evidence on record to dispute the opinion of the Medical Board,
which may warrant the constitution of the Review Medical
Board".
11. In the present case, as noted hereinabove, the petitioner
did not challenge the opinion of the Invalidment Medical Board
for a period of twenty one years. Even in the present writ
petition, barring relying upon the presumption that the cause of
disease was attributable to service and assigning a reason
thereto, which was earlier never put to the respondent, no
medical document has been placed on record by the petitioner
to cast a doubt on the decision of the Invalidment Medical
Board. Therefore, no such presumption of disease being
attributable to service or being aggravated due to service can be
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drawn in the present case. Nor can a challenge to the
Invalidment Medical Board be accepted after such huge delay.
12. The reliance of the petitioner on the judgment of the
Supreme Court Tarsem Singh (supra), is also ill-founded. A
Coordinate Division Bench of this Court in its judgment dated
08.09.2020 in W.P.(C) 6093/2020 titled EX JWO Kewal
Krishan Vij vs. Union of India & Ors. has held the following:
".... The claim for disability pension cannot be equated to a
claim for pay / emoluments in accordance with Rules or
claim for other recurring payments which if not in
accordance with law or contract can be claimed at any
time. Disability pension, though payable month-by-month,
payment thereof is dependent on a finding of disability
attributable to or aggravated by service and in the absence
of a finding of disability attributable to or aggravated by
service, there can be no claim for disability pension; such
finding is a finding of fact and not of law or contract, claim
wherefor even if highly belated can be made at any time
and granted with arrears for the period within limitation;
on the contrary finding, even if erroneous, of "no disability
attributable to or aggravated by service" if not challenged
within reasonable time attains finality and a claim for
disability pension cannot be made at any time, after
decades, claiming the same to be a recurring payment. The
counsel for the petitioner is misapplying Tarsem Singh
supra".
13. In view of the above. We find no merit in the present
petition. The same is dismissed.
NAVIN CHAWLA, J
MANMOHAN, J
DECEMBER 20, 2021/rv/A
Signature Not Verified
Digitally Signed
Signing Date:22.12.2021
18:05:44
