PERMOD KOHLI.J (ORAL)
It is not in dispute that the issue involved in the present writ petition is squarely covered by a judgement of this Court passed in CWP No. 19417 of 2007 on 18.2.2009
In the aforesaid judgement, this Court has placed reliance upon a Division Bench judgement rendered by the High Court of Delhi in CW No. 2967 of 1989 decided on 5.5.2005 (Mahavir Singh Narwal V. Union of India and others). The said judgement was upheld by the Hon'ble Supreme Court in SLP (Civil) No. 24171 of 2004. The observations made in Mahavir Singh Narwal's case are as under:-
“On careful perusal of the aforesaid rule it is manifestly clear that invalidated from service is 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 than 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 admitted case of the parties that the petitioner got disability on account of stress and strain of military service and his category was initially lowerdown temporary 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 11 April, 1986 which is as under…..
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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 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 upto 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.”
While allowing the petition, following directions have been given in CWP No. 19417 of 2007:-
“In view of the above, the writ petition is allowed. The respondents are directed to grant disability pension to the petitioner on the basis of assessment of 20% disability for life. The respondents shall pay all the arrears to the petitioner within 2 months from the date of receipt of a copy of the judgement, failing which the petitioner would be entitled to interest at the rate of 9% on the amount of arrears.”
Accordingly, present petition is disposed of in terms of the aforesaid judgement. Petitioner shall also be entitled to the same relief. However, the payment of arrears shall be restricted to 3 years preceding the filing of the writ petition.
(PERMOD KOHLI)
JUDGE 2.9.2009
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