Ashok Kumar vs Union of India

R.L. Anand, J.—Shri Ashok Kumar, petitioner, has filed the present petition under Articles 226/227 of the Constitution of India and he has prayed that a writ in the nature of certiorari, quashing the order annexures P-2 and P-4 dated 19.11.1997 and 27.7.1999, be issued. It has been further prayed by the petitioner that a writ in the nature of mandamus be issued against the respondents directing them to release the benefit of disability pension with effect from 1.8.1997, along with interest.

The case set up by the petitioner is that he was born on 15.4.1959. He joined the Army on 27.7.1976. He was supposed to serve upto 26.7.1996. However, he was granted extension for a period of two years starting from 27.7.1996 to 26.7.1998.

The case of the petitioner is that he suffered a disease "CNS observation (TIA)" (epilepsy) in the year 1994. It was aggravated when the petitioner was serving the extended period starting from 27.7.1996 to 26.7.1998. The petitioner alleges that he was invalidated out from military service on medical ground on 31.7.1997, therefore, he is entitled to the benefit of disability element of pension in accordance with Regulations 173-A and 179 of the Pension Regulations For the Army, 1961 Part-I.

Notice of the claim petition was given to the respondents who filed the reply and denied the allegations. According to the respondents, the petitioner is not entitled to the benefit of disability pension or disability element because the petitioner was discharged from service being found ineligible to serve during the extended period and not on medical conditions.

I have heard Shri B.S. Sehgal, learned counsel appearing on behalf of the petitioner and Shri Gurpreet Singh, learned counsel appearing on behalf of the respondents and with their assistance have gone through the record of the case.

The petitioner did not file the discharge certificate along with the writ petition but during the course of submissions the learned counsel for the petitioner, Shri Sehgal, invited my attention to the photo copy of the discharge certificate which has issued by the respondent-authorities. At page No. 8 of this document, it has been written as "Reasons for Release/Dis-charge/Dismissal" and the answer to this column is as follows:-

"On completion of service limit under AR 3 [Item III(i)]"

Thus, the reading of the above would show that the petitioner was released/discharged from the army service on completion of service limit and not only on medical ground.

Faced with this difficulty, the learned counsel for the petitioner invited my attention to Part No. VI of this document and stated that under the Heading "Medical Record" it has been mentioned as follows:-

"Medical category "CEE" permanent"

From these observations, made in the discharge certificate, Shri Sehgal wanted to take the benefit by saying that the petitioner was invalidated out from the service on medical ground.

I do not subscribe to the argument raised by the learned counsel for the petitioner. The words "Medical Category CEE Permanent" has been mentioned in Part-VI of discharge-certificate, which deals with the medical record and column No. 24 states about "Detail of battle wounds, disability with percentage". Against these remarks, it has been written by the medical authorities "Medical category CEE permanent".

It is difficult for me to presume from these observations of the Medical Board that the petitioner was invalidated out from service on medical ground.

Now, it is to be seen whether the petitioner is entitled to the benefit of disability element under Regulations 173-A and 179, as propounded by the learned counsel for the petitioner.

I have gone through the provisions of Regulations 173-A and 179. Both the Regulations in the present case are not applicable.

In this view of the matter, the petitioner is not entitled to the benefit of disability element as claimed by the counsel for the petitioner during the course of submissions.

Resultantly, the petition is hereby dismissed with the observation and directions to the respondents to constitute a Re-survey Medical Board for the examination of the petitioner and if the disability of the petitioner is declared 20% or more, it will always be open to the petitioner to again approach to the Court to claim the benefit of disability element. The Board shall be constituted within three months. There shall be no order as to costs.

Petition dismissed.