M.M Kumar, J.:— This petition filed under Article 226 of the Constitution prays for quashing orders dated 6.9.2001 (P-2), 9.11.2002 (P-23), 1.3.2001 (P-24), and 16.5.2002 (P-5) ordering refund of the service element paid to the petitioner from 22.5.1990 to 31.1.2001, amounting to Rs. 1,49,779/-. A further prayer has been made for restraining the respondents from recovering the amount of Rs. 1,49,779/- from the petitioner and directing them to continue paying the service element of pension to the petitioner w.e.f 1.2.2001 onward for life and to bring the petitioner before the Re-survey Medical Board/Appellate Medical Board in order to assess the percentage of his disability and also grant disability element of pension at the rate of 50% as per the 5th Pay Commission's recommendations and to revise the same from (sic).

2. Few facts may first be noticed. The petitioner was enrolled in the Indian Army on 17.12.1953 While in service, he suffered from ‘Chronic Folliclate Both Legs’. On 6.7.1954, the petitioner was invalidated out of the military service after rendering 1 year 224 days service. The disability/disease of the petitioner was held to be attributable to military service and he was granted disability pension consisting of service element and disability element firstly from 6.8.1953 to 6.7.1954 for one year vide PPO No. D/4145/55, which was extended from time to time on the basis of the Re-survey Medical Board, which is as follows:—

Sr. No. Period Amount Percentage of DP per month PPO No. From To 1. 7.7.1954 18.10.1957 Rs. 15/- 20% D/5244/56 2. 19.10.1957 12.7.1958 Rs. 15/- 20% D/6405/57 3. 13.7.1958 23.7.1960 Rs. 15/- 20% D/5885/59 4. 24.7.1960 30.9.1962 Rs. 15/- 20% D/5867/60 5. 1.10.1962 22.11.1964 Rs. 15/- 20% D/RA/482/63 6. 23.11.1964 27.9.1966 Rs. 15/- 20% D/RA/2615/65 7. 28.9.1966 21.8.1968 Rs. 15/- 20% D/RA/182/67 8. 22.8.1968 6.8.1970 Rs. 15/- 20% D/RA/9485/68 9. 7.8.1970 10.5.1972 Rs. 25/- 20% D/RA/6713/70. 10. 11.5.1972 4.4.1975 Rs. 25/- 20% D/RA/8832/73

11. 5.4.1975 4.4.1977 Nil Less than G3.RA/75/5418/II 20% dated 15.4.75 12. 15.8.1976 15.8.1978 Rs. 25/- 20% D/RA/122 26/76. No DP is payable during the period of 5.4.1975 to 15.8.1976 disability less than 20% during the period. 13. 16.8.1978 4.7.1980 Rs. 25/- 20% D/RA/682 5/79 14. 5.7.1980 21.5.1990 Rs. 25/- 20% D/RA/131 57/80 15. 22.5.1990 For life Nil 15-19% G3.RA/3/9 0/2863.II dated 21.6.89

3. Disability pension consisting of service element and disability element was continuously granted to the petitioner for the period from 6.8.1953 to except from 5.4.1975 to 4.4.1977 when his disability was assessed less than 20%. After 23.5.1990 onward the disability of the petitioner was assessed as static and the Medical Board also held that the percentage of the disability of the petitioner is 20% but the Principal Controller of Defence Accounts Pension, Allahabad reduced the same to less than 20% i.e 15% to 19%. In this manner, the disability pension of the petitioner was discontinued w.e.f 23.5.1990 onwards. However, the petitioner was continuously paid the service element of pension. The petitioner preferred an appeal to the Secretary, Ministry of Defence on 7.8.1990 and sent a reminder on 4.3.1991 (P-3 and P-4 respectively)_. The petitioner also approached the respondent authorities for holding of Resurvey Medical Board vide representations dated 4.8.1998 and 17.8.1998 (P-5 and P-6 respectively). Without deciding the appeal and representations of the petitioner, the respondents vide the impugned orders raised a demand for recovery of an amount of Rs. 1,49,779/- by holding that the petitioner is not eligible to get even service element. The aforementioned amount is sought to be recovered on account of payment made towards service element of disability pension from 22.5.1990 to 31.1.2001 and the petitioner was asked to deposit the said amount by way of demand draft in the office of the respondents. The petitioner sent a notice of demand on 27.3.2003 to the respondents, however, the same has been rejected vide order dated 9.5.2003 (P-27) as well as 17.5.2003 (P-28). In the written statement the respondents have taken the respondents have taken the stand that the petitioner was enrolled in the (Border Scouts) on 17.12.1951 and was invalided out of service w.e.f 6.8.1953 after rendering 1 year 7 months and 20 days of service due to low medical category for principal disability “Chronic Foliculitis Both Legs”. However, the factum with regard to initial grant of disability pension consisting of both the elements, assessment of disability of the petitioner by the Re-survey Medical Page: 694Board from time to time has been admitted. The respondents have controverted the claim of the petitioner by asserting that the petitioner was medically examined to determine the disability by the Medical Board at Military Hospital, Jalandhar Cantt. on 27.11.1990, which assessed the disability of the petitioner less than 20% (15-19%). Accordingly, vide letter No. G3.RA/3/90/2863/0, dated 21.6.1990, respondent No. 4 ordered for discontinuance of disability pension (Disability element + service element) w.e.f 22.5.1990 The aforementioned order was communicated to the petitioner vide letter dated 28.7.1990 (P-2). The respondents have further stated! that the appeal filed by the petitioner was rejected by the Ministry of Defence, Government of India after going through the facts of the case. In preliminary objection No. 3, the respondents have asserted that respondent No. 5 who is the pension disbursing agency, inadvertently continued to disburse service element of the disability pension till 31.1.2001 to the petitioner which was not payable to him as his service was less than 10 years. Thus, an excess payment of Rs. 1,49,779/- on account of service element of pension was made to the petitioner. Upon realizing the mistake, the concerned respondent authorities immediately ordered to stop further payment of service element of disability pension to the petitioner and further ordered for recovery of the aforementioned excess amount paid to the petitioner. According to the respondents the petitioner has approached this Court after lapse of almost 13 years and he is not eligible for grant of disability pension (service element + disability element), inasmuch as, the petitioner is having less than 10 years of service.

4. At the hearing, learned counsel for the petitioner confirmed the claim of the petitioner only for the grant of service element from 23.5.1990 to and onward for life.

5. Mr. B.S Sehgal, learned counsel for the petitioner has argued that in accordance with Regulation 186(1)(2) the Pension Regulations for Army, 1961 (Para I and II), the petitioner is entitled to payment of service element of pension which was rightly paid from 23.5.1990 to 31.9.2001 Learned counsel has submitted that after the petitioner has been re-assessed by the re-survey Medical Board and his disability has been reduced to less than 20 per cent then the disability element of pension may be liable to be discontinued as per the provisions of Regulation 173 but under the grab of discontinuation of disability element of pension, the respondents have been discontinued the service element of pension after 31.9.2001 which is admissible to the petitioner under Regulation 186(1)(2) of the Regulations for life. Learned counsel has placed reliance on a Division Bench judgment of this court in the case of Amarjit Singh v. Union of India, CWP No. 12311 of 1996, decided on 27.2.1997 which has been upheld by this Court in the case of Union of India v. Nek Singh, LPA No. 42 of 2001, decided on 27.9.2001

6. On the basis of the aforementioned judgments, Mr. Sehgal, learned counsel for the petitioner, has argued that if the disability element pension is not to be granted on account of re-survey medical report reducing the disability to less than 20 per cent, it may result into discontinuation of disability element of pension under Regulation 172 but under the grab of discontinuation of disability element of pension, the right of the petitioner to Page: 695claim service element of pension cannot be defeated. In that regard, learned counsel has made a reference to Regulation 183 which postulates two elements of disability pension namely service element and disability element. He has also referred to Regulation 173 read with Regulation 186 and argued that once a person is re-assessed at below 20 per cent then he may cease to avail disability element of pension from such a date but he will continue to draw service element of disability pension for life.

7. Mr. Sehgal; learned counsel for the petitioner has been submitted that in such (sic) be used to defeat the rights of the petitioner. In that regard, he has placed reliance on a Division Bench judgment of this Court in the case of Sardara Singh v. Union of India, 1992 (6) SLR 683 wherein the petition of an army personnel for granting him disability pension was allowed by ignoring the delay of 40 years. He has been referred to a judgment of the Supreme Court in the case of S.R Bhamala v. Union of India, (1996) 10 SCC 172 : AIR 1997 SC 27 : [1996 (4) SLR 717 (SC)] and argued that bar of limitation cannot be raised by the respondents. He has then argued that in the instant case there is no delay as the petitioner has been getting service element of pension till 31.9.2001 and the instant petition has been filed on 11.11.2003

8. Mr. S.K Sharma, learned counsel for the respondents has not been able to dispute the proposition that the service element of pension is admissible to the petitioner under Regulation 183 read with Regulation 186. He has not been able to point out any distinguishing feature between the facts of the present case and that of the Division Bench Judgment of this Court in the case of Amarjit Singh (supra) not it has been pointed out that the legal proposition involved in the present case is different than the one adjudicated upon by the Division Bench in Amarjit Singh's case (supra). All that has been argued is that the petition suffers from delay and laches and the petitioner would not be entitled to arrears from the due date.

9. After hearing learned counsel for the parties at a considerable length, perusing the record and various judgments cited at the Bar, I am of the considered view that the instant petition is squarely covered by the Division Bench judgment of this Court in the case of Amarjit Singh (supra) which has been upheld by the Supreme Court because SLP No. 33740 of 1997 was dismissed on 22.9.1997 He Division Bench has discussed Regulations 173, 183 and 186(1) and (2) of the Pension Regulations.

10. The observations of the Division Bench in Amarjit Singh's case (supra) reads as under:—

“Rule 173 of the Rules states that unless otherwise specifically provided, disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability and it is assessed at 20% or over. Rule 186(1) states that an individual who is invalided out of service with a disability when assessed to below 20% shall be entitled to service element only. In 1986 when petitioner's disability was assessed at below 20% be (he?) ceased to have any right to get disability element of pension but is entitled to service element only. As stated earlier, that disability element of Page: 696pension was Rs. 25/- and the service element of pension paid to him was Rs. 13/- and 5 annas. As per the present orders issued by Central Government the minimum service pension payable to an ex-military personal is Rs. 375/-. Since the service element of pension is to continue till death of the ex-serviceman we are of the view that petitioner should be paid the minimum service element of the pension, namely Rs. 375/- from the date on which he was found disentitled to get the disability element of pension. In this view respondents are to disburse pension (Service element) to the petitioner at the rate of Rs. 375/- from 5.3.1986 Arrears due till date must be quantified and disbursed within three months from the date of receipt of a copy of this judgment. In case the arrears are not disbursed within the said period of three months, the entire arrears will carry interest at the rate of 12% from the date of expiry of three months till the date of payment. Respondents should regularly pay pension to the petitioner at the rate of Rs. 375/- every month without any break.”

11. I also find merit in the argument raised by the learned counsel for the petitioner that once the service element for the period from 6.7.1954 to has been granted to the petitioner the same cannot be denied for the remaining period by asserting that he lacks 10 years of qualifying service.

12. The argument of the counsel for the respondents that there is a delay of 13 years in filing the instant petition does not survive for consideration because the learned counsel for the petitioner has confined his claim to the service element of disability pension which has been paid to the petitioner till and the other claim with regard to disability element of pension has not pressed. Therefore, I find no delay in the filing of the instant petition in so far as the claim of service element of pension is concerned. In any case, the judgment of the Supreme Court in the case of S.K Mastan Bee v. General Manager, South Central Railway, (2003) 1 SCC 184 : [2002 (7) SLR 1 (SC)] categorically lays down that where the petitioner is illiterate person with meagre resources then despite delay the writ petition for claiming family pension was held to be maintainable. Similar was the view taken by Division Bench of this Court in the case Sardara Singh (supra). Therefore the objection with regard to delay is over-ruled.

13. I am further of the view that disability of the petitioner was assessed at less than 20% w.e.f 22.5.1990 for life and then he ceased to have any right to get disability element of pension from said date but he is entitled to service element. The service element of pension is to continue for life of the ex-serviceman and the petitioner is entitled to be paid the service element of the pension as per the rates fixed by the Central Government from time to time, from the date it was discontinued till life. Therefore, the petitioner is held entitled to service element of pension from 23.5.1990 to 31.9.2001 and onward for life. Accordingly, the orders dated 9.5.2003 and 17.5.2003 (Annexures P-27 and 28) and other similar orders Annexures P-20, P-22, P-23, P-24 and P-25 refusing the petitioner the service element pension and orders of recovery of a sum of Rs. 1,49,779/- are hereby quashed. A direction is issued to the respondents to continue payment of service element of pension from 31.9.2001 Let all the arrears due till date be quantified and disbursed to Page: 697the petitioner within a period of three months from the date of receipt of certified copy of this order. In case the arrears are not disbursed within the said period of three months, the entire arrears will carry interest at the rate of 12% from the date of expiry of three months till the date of payment. The respondents are also directed to regularly pay service element of disability pension to the petitioner every month without any break till life. This writ petition is allowed in the above terms with no orders as to costs.

14. Petition allowed.