Dhan Bahadur Gurung (Ex 5447052 Rfn) vs Union of India

R.L. Anand, J.—Ex. Rifleman Dhan Bahadur Gu- rung has filed the present writ petition under Article 226/227 of the Constitution of India for quashing of the order, Annexure P-5, passed by respondent No. 2, rejecting his plea for grant of disability pension. The petitioner has further prayed that directions be issued to the respondents to release him the benefit of disability pension as he was invalidated from the Army service on account of disability.

The case set up by the petitioner is that he joined the Army on 17.9.1977. He was medically examined at the time of his entry into the service and he was declared fully fit in all respects, he served for 14 months to the full satisfaction of his superiors until 3.11.1978 and when he was on duty an Quarter Guard of 58 Gurkha Regimental Centre, Shillong, he suddenly had a severe attack of Spurtic paraplegia (paralysis). He was evacuated to the Military Hospital, Shillong where he remained admitted for one year and eight months. Medical treatment failed to retrieve his physical state. He was examined by a Medical Board at the Military Hospital, Shillong, which declared him unfit for service in the Army and recommended that the petitioner should be boarded out of service with 100% disability. After the approval of the Medical Board proceedings, he was invalidated out from the Army on 10.7.1980. As per the petitioner, the disability suffered by him is attributable to the army service and, therefore, he is entitled for grant of disability pension.

Notice of the writ petition was given to the respondents, who filed the written statement and denied the allegations.

As per the respondents, the petitioner was enrolled in the Army on 17.9.1977 as Nepal Domicile and there is nothing on record that the petitioner has changed his home address and is now settled in Punjab.

On merits, the stand of the respondents is that the disease suffered by the petitioner has neither been aggravated nor attributable to the army service. Rather, the disease suffered by the petitioner is a constitutional one and was not related to service factor. The appeal of the petitioner has been rightly rejected by the Chief Controller of Defence Accounts (Pensions), Alla-habad, which is the competent authority for sanctioning of the disability pension. The claim of the petitioner has been rightly rejected by the Chief Controller of Defence Accounts vide letter dated 9.4.1981. With this broad defence, the respondents have prayed for the dismissal of the writ petition.

I have heard counsel for the parties and with their assistance have gone through the record of this case and I am of the opinion that this writ petition deserves acceptance. It is proved on the record that the petitioner was fully fit when he joined the army. There is nothing to suggest that the petitioner was suffering from any disease much less paralysis. The nature of the duties undertaken by the petitioner clearly make out a case for the disability suffered by the petitioner, which is attributable to the Army Service. In this view of the matter, I hold that it was not justified on the part of the respondent-authorities to reject the disability claim of the petitioner.

Now, the second point for determination is from which date, the petitioner should be given the benefit of disability pensions as he was boarded out of the service in the year 1980. The writ petition was filed in the year 1994. In these circumstances, the petitioner, in my opinion, can only be accommodated for a period of 38 months prior to the institution of the writ petition.

Resultantly, I allow this writ petition partly by setting aside the impugned order and directions are given to the respondents to release the disability pension of the petitioner w.e.f. 1.1.1991 onwards at such rates which were permissible as per law from time to time, within three months from the receipt of a copy of this order, failing which the petitioner shall be entitled to interest @ 12%. The petitioner shall appear before the Re-Survey Medical Board as and when called. No costs.

Petition partly allowed.