Punjab-Haryana High Court
Rashem Singh vs Union Of India And Ors on 8 November, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:146100-DB
CWP-594-2024 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-594-2024
Reserved on: 25.09.2024
Pronounced on: 08.11.2024
Rashem Singh .....Petitioner
Versus
Union of India and Others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. Rajesh Sehgal, Advocate
for the petitioner.
Mr. Maneesh Bali, Senior Panel Counsel
for the respondent - UOI.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner herein
prays for setting aside the relevant part of the order dated 29.01.2019
(Annexure P-1) as passed by the learned Armed Forces Tribunal
concerned, wherebys, the benefit of disability pension has been
restricted to 25.06.2014 instead of the date of his discharge from
service i.e. 10.03.2002.
Factual Background
2. The petitioner was enrolled in the Army on 03.01.2001 in a
fit medical condition and was invalided out from service on 10.03.2002
in low medical category P(5) under Rule 13 (3) item (iv) of Army Rule
1954. During the course of his service, he incurred the disability of
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"Generalized Seizure (345) Neuro Cysticercosis" which was assessed
as less than 20% (i.e. 15-19%) for life by the Invaliding Medical Board
held on 31.12.2001.
3. The disability element claim of the petitioner was rejected
by the Competent Authority vide letter dated 01.02.2004, thus on the
ground that the supra disability was neither attributable to nor being
aggravated by rendition of military service and the degree of
disablement was assessed as less than 20% (i.e. 15-19%). Thereafter,
the petitioner filed first appeal against the rejection of his disability
pension claim. The said appeal was rejected by the respondents vide
order dated 23.02.2007. Further, the petitioner filed second appeal
before the authorities, which was also rejected vide letter dated
07.05.2008.
4. Feeling aggrieved, the petitioner filed Original Application
No. 1453 of 2016 before the Armed Forces Tribunal concerned for the
grant of disability pension from the date of his discharge from service
i.e. 10.03.2002. The said O.A. became disposed of vide order dated
29.01.2019. The operative part of the order is extracted hereinafter.
It is undisputedly proved that at the time the applicant
entered into military service, this type of disease/disability did not
exist. The disability accrued to him during the course of military
service. So by virtue of the principle laid down in Dharamvir Singh's
case (Supra), the said disability can be attributed/aggravated by
military service.
Now a question arises whether a personnel suffering from
the disability of less than 20% is entitled to the disability pension or
not.
The question has been answered by the Hon'ble Supreme
Court in Civil Appeal No 5605 of 2010, Sukhwinder Singh Vs UOI and
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others" decided on 25.06.2014. In para 11 whereof, the following
observations were made :-
"Thirdly, there appear to be no provisions authorising
the discharge or invaliding out of service where the
disability is below 20 percent and seems to us to be
logically so.
Fourthly, whenever a member of the Armed Forces is
invalided out of service, it perforce has to be assumed
that his disability was found to be above 20%.
Fifthly, as per the extant Rules/Regulations, a disability
leading to invaliding out of service would attract the
grant of 50 percent disability pension."
On the basis of the above case law of the Hon'ble Supreme
Court, we are of the opinion that the disability which has been assessed
by the RMB at less than 20% (i.e. 15.-19%) can be deemed to be 20%
and rounded off to 50%.
Now the question arises as to from which date the
applicant is entitled to the disability pension on the basis of the above
rate. In this reference it is to be seen as to on which date his right to get
disability pension @ at less than 20% was recognized. His right was
recognized or accrued on the date pronouncement of judgement by the
Hon'ble Supreme Court in Sukhwinder Singh's case (supra).
5. Aggrieved from the afore part of the relevant order,
whereby the benefit of disability pension has been restricted from the
date of pronouncement of the verdict by the Apex Court in Sukhwinder
Singh's case (supra), the petitioner has filed the instant writ petition.
Inferences of this Court.
6. Though the judgment passed by the Hon'ble Apex Court in
case titled as Sukhwinder Singh Vs. UOI and others (supra) was
passed on 25.06.2014. However, the benefits thereof cannot be denied
to the present petitioner merely on the ground that it has only
prospective effect and that it has no retrospective effect. The reason
being that even if assumingly no explicit retrospective effect became
assigned to the verdict (supra), whereins, in para No. 11 thereof, para
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whereof has been extracted above, a declaration of law is made to the
effect, that even if the solider is discharged on account of the assessed
percentum of disability being below 20 %, yet the said per centum of
disability being construable to be @20% and further the same being
rounded off to 50%. Resultantly the beneficent effect of the said
declaration of law, thus is also to be endowed to the soldiers,
irrespective of the date of pronouncement of the said judgment. If the
said endowment is not made, thereupons, to the considered mind of this
Court, an arbitrary cut off date would become employed inter-se those
soldiers who became discharged prior to the making of the verdict
(supra) thus with those soldiers who became discharged subsequent to
the passing of the verdict (supra).
7. It appears that it was even not the intrinsic tenor and spirit
of the supra declaration of law passed by the Apex Court in the verdict
(supra), as such, the declaration of law is required to be employed even
vis-a-vis the present petitioner.
8. Even otherwise since the declaration of law made in
verdict (supra) makes the said declaration to be an expostulation of law
in rem, therebys, the expostulation of law in rem, as made in verdict
(supra) also makes the thereunders conferred benefits vis-a-vis the
defence personnel concerned, to, prima facie, also entitle the
concerned, thus to at any time seek the granting of the endowments as
made thereunders, and that too, in the fullest complement, as spelt
thereunders, besides irrespective of the bar, if any, of delay and laches.
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Final Order of this Court.
9. In aftermath, this Court finds merit in the writ petition,
and, with the above observations, the same is allowed.
10. The impugned order, as passed by the learned Armed
Forces Tribunal concerned, is modified to the extent that the petitioner
in terms of the verdict rendered in Sukhwinder Singh's case (supra) is
entitled to disability pension from the date of his discharge i.e.
10.03.2002 alongwith the benefits of rounding off to 50 % against 20%.
11. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
08.11.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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