Union Of India And Others ... vs Ex Riflemen No. 63282 Jawahar ...
2022 Latest Caselaw 4101 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

          THE CHIEF JUSTICE SHRI VIPIN SANGHI
                          AND
         JUSTICE SHRI RAMESH CHANDRA KHULBE

               Special Appeal No. 237 of 2021

Union of India and Others                            ......Appellants
                                Vs.

Ex Riflemen No. 63282 Jawahar Singh               ......Respondents

Presence: -
Mr. Atul Bahuguna, learned counsel for the appellants.
Mr. C.S. Rawat, learned counsel for the respondent.


JUDGMENT (Oral: Shri Vipin Sanghi, C.J.)

The present special appeal is directed against the judgment rendered by the learned Single Judge in Writ Petition (S/S) No. 123 of 2017 dated 06.01.2021. The learned Single Judge allowed the writ petition preferred by the respondent - writ-petitioner seeking a grant of disability pension to him, since the date of his discharge from his service from the Assam Rifles.

2. The respondent - writ-petitioner was inducted as a Rifleman in Assam Rifles on 23.08.1957. After he had rendered 06 years, 09 months and 22 days service with Assam Rifles, he was discharged on the ground of invalidity on 15.05.1964. At this stage itself, we may notice that in the counter affidavit filed by the appellant in the writ proceedings, they have produced the Brief-Sheet of Destroyed Service Records by a Board as per order No.l.36031/8/89/Records (Coord)/85 Dated 15 June 1989 wherein, the cause of discharge is recorded as "invalid out".

3. The petitioner also filed along with the writ petition the document with regard to his discharge, wherein the reason for discharge is recorded as "on medical ground".

4. The respondent - writ-petitioner sought disability pension, which was rejected on 25.09.1965, on the ground that he did not have qualifying service of 10 years. The claim for invalid pension was accordingly rejected.

5. Pertinently, this communication did not state that the petitioner did not suffer from disability while in service, which was caused by, or aggravated due to the service. The only ground of rejection as aforesaid was that he did not have ten years of qualifying service.

6. The grant of disability pension, it appears is governed by the CCS (Extraordinary Pension), Rules, 1939. Perusal of these Rules shows that there is no minimum qualifying service prescribed under the said Rules to become eligible to grant of disability pension. Consequently, it appears, that the rejection of the respondent's claim for disability pension on the ground that he did not have ten years qualifying service was erroneous. Consequently, the respondent was denied disability pension due to this rejection, month after month, and till the time that he preferred the writ petition. Pertinently, after the rejection of his claim for disability pension on 25.09.1965, the first time that the writ-petitioner made his representation was on 29.02.2016. Only thereafter, he preferred the writ petition. In the writ petition, the

appellant filed its counter affidavit. In the counter affidavit, the appellant, inter-alia, stated as follows:-

"Number 63282 Ex riflemen Jawahar Singh Bist was enrolled in to the Assam Rifles on 23 Aug 1957 and posted to 6 Assam Rifles. He was invalided out from service on medical grounds with effect from 15 May 1964 after having rendered a total of 06 years, 08 months and 23 days service. His sheet roll and other service document have already been destroyed by the department after having retained them till permissible time limit for retention as prescribed in GFR-289 and an extract brief sheet has been drawn by a board of officers on records for future reference wherein his name has been endorsed as Jawahar Singh Bist.

That as per the extract brief sheet available on records, the petitioner was sanctioned invalid gratuity of Rs.492.75 (Rupees four hundred ninety two and seventy five paise only). He was not granted invalid pension as he had not completed mandatory 10 years service as envisaged under article 474 of Civil Service Regulations, subsequently incorporated as rule 49 (2) (b) of Central Civil Service (Pension) Rules, 1972. Furthermore, Rule 3(a) and Rule 9(3) of Central Civil Service (Extra Ordinary Pension) Rules provide that the disability of the person should be attributable to or aggravated due to service conditions with 60% or above disablement for grant of disability pension. The petitioner was not meeting the above criteria, therefore, he was not entitled to any kind of pension from Assam Rifles."

(emphasis supplied)

7. The defense set up by the appellant with regard to the immense delay and latches in preferring the writ petition was rejected by the learned Single Judge while observing that the denial of the disability pension to the petitioner was a continuing wrong and, therefore, the cause of action which arose in favour of the respondent - writ-

petitioner, was a recurring cause of action. In this regard reliance was placed on the judgment of the Supreme Court in Union of India Vs. Tarsem Singh (2008) 8 SCC 648. To claim that the disability should be assumed to be attributable to service, reliance was placed on Dharamvir

Singh Vs. Union of India and Others (2013) 7 SCC 316.

8. Keeping in view the judgment of the Supreme Court in the Tarsem Singh (supra), it appears to us, that the principles laid down by the Supreme Court with regard to continuing cause of action are squarely attracted in the facts of the case. Therefore, the rejection of the petitioner's claim on 25.09.1965 was one act, which had the effect of continuously denying disability pension to the petitioner, month after month. The ground of rejection was that the petitioner did not have ten years of qualifying service, which ground appears to be unfounded.

9. At the same time, the gross delay on the part of the writ-petitioner in preferring the writ petition actually led the respondent to become disabled from effectively contesting the writ proceedings. The concept of delay and latches is premised on the principle that the opposite party should not be called upon to answer a stale claim, as it may not be in a position to deal with the claim due to destruction of records and evidence, as well as due to the relevant persons not being available in the organization when the claim is made. The stand taken by the appellant clearly in their counter affidavit was that the records pertaining to the petitioner were destroyed and were not longer available. All the same, it is evident that the respondent was invalidated out of service due to a disability. This is evident from the fact that the records available with the appellant themselves record the fact that he was invalidated out, and also he was sanctioned invalid gratuity of Rs.492.75/-.

10. Reliance placed on the judgment in Dharamvir Singh (supra) may not be of much avail to the respondent, considering the fact that the Supreme Court in Dharamvir Singh (supra) was dealing with an army personnel and the Rules interpreted by the Supreme Court were the Pension Regulations for the Army, 1961 in that case, which were applicable to army person-which the respondent was not.

11. The learned Single Judge while allowing the writ petition directed the grant of disability pension to the respondent from the date that he made his representation i.e., 29.02.2016. This direction, in any event, falls foul of the judgment of the Supreme Court in the case of Tarsem Singh (supra) and particular the observations made in para no.5 thereof.

12. In our view the learned Single Judge could not have, on his own, assessed the disability of the respondent at 100%. We, therefore, modify the impugned judgment. The disability pension that the petitioner would be entitled to, would be for the period of three years prior to the date of filing of the writ petition, if it is found admissible. So far as the admissibility of disability pension to the petitioner is concerned, the same has to be determined in accordance with the CCS (Extraordinary Pension), Rules, 1939 as enforced. We, therefore, direct the appellant to examine the claim of the respondent for disability pension under the applicable Rules, and to grant the same to the respondent, if it is found admissible and to the extent it is found admissible. The exercise should be completed within the next three months, considering that the respondent is over 80 years of age.

13. The appeal stands disposed of in the aforesaid.

_______________ VIPIN SANGHI, C.J.

________________________ RAMESH CHANDRA KHULBE, J.

Dated: 21st December, 2022 BS/SK