VIRENDER SINGH vs UNION OF INDIA and ORS.

1.Heard Mr. M.H. Ahmed, counsel for the petitioner. Also heard Mr. M.R. Adhikari, counsel for the respondents.

The petitioner’s case in brief is that the petitioner was a Rifleman in the Assam Rifles Organization. However, due to injury suffered by him, his

medical category was downgraded to BEE (Permanent) vide Medical Board Proceedings dated 20.10.1995. The petitioner was thereafter allowed

compulsory retirement w.e.f. 31.01.1999 and he was granted basic pension of Rs. 1275/- per month.

The petitioner’s further case is that prior to the petitioner being allowed to retire, the petitioner had been beaten up by the Medical Officer, Dr.

Major Arvind Shukla.

The petitioner thereafter served a Legal Notice dated 09.02.2000 to the respondents for grant of compensation to the tune of Rs. 10 lakhs, which

was rejected by the respondents on 10.05.2000. The petitioner filed WP(C) No. 6934/2002 in the Delhi High Court, praying for payment of

compensation of a sum of Rs. 10 lakhs, on account of being beaten up by Dr. Major Arvind Shukla. The petitioner also prayed for a direction to

sanction regular pension to the petitioner and to commute the same, as per rules and regulations. WP(C) No. 6934/2002 was disposed of by the Delhi

High Court, vide Order dated 01.03.2007, by dismissing the writ petition. In the Order dated 01.03.2007 passed in WP(C) No. 6934/2002, it was also

recorded that at the time of hearing, the petitioner had given up his prayer for sanction of regular pension and for commutation of the same, as the

same had been granted by the respondent authorities.

The petitioner thereafter filed WP(C) No. 8595/2010 in the Delhi High Court praying for payment of disability pension. WP(C) No. 8595/2010 was

dismissed for want of territorial jurisdiction vide Order dated 19.08.2009.

The petitioner thereafter filed WP(C) No. 315/2012 before this Court. However, the same was dismissed vide Order dated 25.01.2012 as follows:-

“Mr. M.H. Ahmed, the learned Counsel for the petitioner wishes to file a fresh writ petition with legible annexures, as some of the annexures are

indistinct and they have not been enclosed, in appropriate seriatum. Accordingly as prayed for, the case is dismissed as not pressed.â€​

The petitioner has now approached this Court again by filing the present writ petition, praying for a direction to be issued to the respondent

authorities, to hold a Medical Board to determine the percentage of disability of the petitioner and to grant him disability pension w.e.f. the date on

which he was released from service, with all benefits, i.e., w.e.f. 31.01.1999.

The affidavit-in-opposition filed by the respondents’ is to the effect that the petitioner had himself opted for compulsory retirement, which had

been granted by the Competent Authority and his claim for disability pension cannot be considered at this stage, as he was not willing to undergo

medical test to assess his percentage of disability, so that he could proceed on pension on medical grounds.

I have heard the learned counsels for the parties.

The petitioner’s prayer for payment of disability pension is on the basis of the removal of his spleen, due to a vehicular accident, while on scout

duty.

The affidavit-in-opposition filed by the Union of India on 01.05.2012 at Para-11 states as follows:-

“11. That the averment made in para 13 of the writ petition in wrong because the petitioner was operated for ruptured spleen and not for spinal

cord as mentioned in the writ petition. The fact is that the petitioner was requested to give his consent to appear before the medical board to ascertain

his attributability and asses his percentage of disability. The conditions of RMB were explained to the petitioner. However, the petitioner himself

refused to sign. Willingness for proceeding on pension on medical grounds and chose to proceed on compulsory retirement. The RMB, was therefore

not carried out due to his unwillingness as per CCS (pension) Rules 1972. It is incumbent upon petitioner himself to apply for invalidation pension if so

desired to retire on med grounds. Therefore, there is no violation of Rule 38 of CCS (Pension) Rules 1972 as petitioner himself refused to be screened

by a RMB. Accordingly, his request for compulsory retirement was considered and he was granted compulsory pension and he is enjoying benefit of

compulsory pension since last 13 years. Therefore, there is no violation of natural justice, equity and good conscience as alleged.â€​

In the case of Ram Singh Vs. BSES Rajdhani Power Ltd., reported in 111 (2004) Delhi Law Times 550, the Delhi High Court has held that merely

because a person attained discharge on compassionate ground, although his disability has been acquired on account of stress and strain of military

service, the same will not be a ground to reject the claim of disability pension, if he has been invalidated in terms of appendix II of Rule 173 of the

Disability Pension Regulations.

Rule 173 of the Disability Pension Regulations states as follows:-

“173. Unless otherwise specifically provided, a disability pension may be granted to an individual who is invalidated from service on account of

disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over. The question whether a disability is

attributable to or aggravated by military service shall be determined under the rules in Appendix II.â€​

In the present case, the respondents have taken the stand that the petitioner, on his own, refused to be invalidated out of service on medical ground

and he himself chose to proceed on compulsory pension, which was granted to him. The petitioner not being screened by RMB, the petitioner was not

entitled to disability pension. The averments made by the respondents in their affidavit-in-opposition filed on 11.05.2012 have not been controverted by

the petitioner and as such, are deemed to be admitted facts. Thus, the petitioner having refused to be invalidated out of service on medical ground, the

petitioner cannot now claim disability pension. Further, the petitioner had been compulsory retired w.e.f. 31.01.1999. However, the petitioner did not

deem it fit to pray for disability pension, when he first filed WP(C) No. 6934/2002 in the Delhi High Court. His prayer for disability pension was first

made only in the year 2010, when he filed WP(C) No. 8595/2010 in the Delhi High Court. The present petition has been filed only in the year 2012.

Thus, as more than 11 years had passed after his compulsory retirement, before the petitioner made his prayer for payment of disability pension, this

Court finds that there has been enormous delay and laches in approaching the Court, which has not been properly explained. Thus, as the petitioner

refused to be invalidated out of service on medical ground and due to the delay and laches in approaching this Court for his disability pension, this

Court is not inclined to exercise its discretion.

Writ Petition is accordingly dismissed.