1

Disability Pension Matter

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH JAIPUR

S.B. Civil Writ Petition No……………………….…...……………….…...……/2009

Smt. Jyana Devi aged about 75 years, widow of

Ex-Rfn No. 2078 Late Shri Jagna Ram Resident of

Vill. Marot P.o. Islampur, via Baggar, Tehsil &

District- Jhunjhunu, Rajasthan. P.I.N. – 333001.

…… Petitioner
Versus

1. The Union of India through the Secretary, Ministry

of Defence, Government of India, New Delhi –
110011.

2. The Chief of the Army Staff, Army Headquarters,

New Delhi -110011.

3. The Controller General of Defence Accounts

(Pension),West Block -5 R.K. Puram, New Delhi –
110066

4. The Principal Controller of Defence Accounts

(Pension), Draupadi Ghaat, Allahabad – 211014.

5. The Officer – in – Charge, RAJ RIF Regiment

Abhilekh Karyaylaya (Records) Delhi Cantt. - 10
……Non-
Petitioners.
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S.B. Civil writ petition under Article 226 of

The Constitution of India,
And
IN THE MATTER OF:
Articles 14, 16, 21, 39 (c), 41, 43 (3)
And 300 A of the Constitution of India,
And
IN THE MATTER OF:
Principles of Natural Justice,
And
IN THE MATTER OF:
Army Pension Regulations, 1961.
And
IN THE MATTER OF:
Grant of disability pension to the petitioner.
To.
The Hon’ ble Vacation Judge
Mr. and Hislordships
other companion Judges of the High Court
of Judicature for Rajasthan, Jaipur Bench
at Jaipur.

MAY IT PLEASE YOUR LORDSHIPS:-

The humble petitioner, above named,

most respectfully begs to submit as under:-

1. That petitioner is a citizen of India she is widow of Ex-Rfn No. 2078 late shri

Jagna Ram who was a soldier of Indian Army, he was discharged from the

service of armed forces of the country on account of war injury at

Nasirabad in lower medical category and became entitled for the disability

pension i.e. War Injury Pension (WIP) under framework of the constitution

of India but letter on it was discontinued permanently. Writ Petitioner is

permanent inhabitant within jurisdiction of this Hon’ble Court hence she is

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entitled to invoke the extraordinary jurisdiction of this Hon’ble Court for

redressal of her grievances by way of filing this writ petition.

2. That husband of the petitioner was enrolled in Rajputana Rifles (for short

RAJRIF) of Indian Army on 20-5-1942 and on account of the war injury

during the out break of Second World War he was invalided out from the

Indian Army on 4-10-1945. He was granted disability pension /War Injury

Pension (for short WIP) which was drawn by him up to 8 February 1956.

On account of seriousness of his injuries he expired on 2-9-1998 at BDK

Government Hospital Jhunjhunu, Rajasthan. He used to draw pension

through PPM Team of Jaipur, Subsequently re-designated as DPDO,

Jaipur. The husband of the petitioner had drawn full pension up to 8-2-

1956. A Photostat copy of the discharge certificate is being filed here with

and marked as Annexure -1 of the writ petition.

3. That on 14 Sept. 98 record officer forwarded a letter to the base Hospital

Delhi Cantt. wherein it was mentioned that disability was increased in 1967

substantially and the husband of the petitioner had claimed for the disability

pension. A Photostat copy of the letter of the record officer of RARIF dated

14-09-1998 is being filed here with and marked as Annexure -2 of the writ

petition.

4. That Supreme Lal an advocate having office at New Delhi forwarded the

grievances of the husband of the petitioner in his legal notice he narrated that his client

was granted disability pension in the year 1945 which remain continued up to 1956 more

than ten years, A Photostat copy of the counsels legal Notice dated 05-11-1997 is being

filed here with and marked as Annexure -3 of the writ petition.

5. That petitioners husband died on account of critical condition of his war

injury in BDK Hospital Jhunjhunu on 2.09.1998 A Photostat copy of the death certificate
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issued by the registrar of death dated 12-09-1998 is being filed here with and marked

as Annexure -4 of the writ petition.

6. That petitioner moved a representation to the Minister of Defence Govt. of

India on 4-9-2000 where in she submitted that petitioner’s husband was

granted disability pension on account of war injury on 4.10.1945 which

remain continued by 8-2-1956 more than 10 year. Her husband was

suffering from the war injury and also died due to the seriousness of the

war injury; on the other hand the authorities calculated his disability less

than 20 percent in an arbitrary manner and ceased the disability pension.

A Photostatted copy of the representation dated 4-9-2000 is being filed

here with and marked as Annexure -5 of the writ petition.

7. That records officer of RAJRIF informed the petitioner that the record of the

unit has been burned out long back, further it was also intimated that at the

time of death petitioners husband was not drawing any pension therefore

she can not claim for the family pension, he further advised to the petitioner

for making a request to the officials of the state Govt for financial

assistance to the war widows. A Photostatted copy of the letter dated

19.06.2004 issued by the records officer of the Rajputana Rifles as to this

effect is being filed here with and marked as Annexure -6 of the writ

petition.

8. That on 9.02.2004 Secretary of the District Soldier Board Jhunjhunu

forwarded the representation made by the petitioner to the records officer

of the RAJRIF wherein the claim of the disability as well as service element

pension was forwarded to the records officer of RAJRIF. A Photostatted

copy of the forwarding letter dated 9.02.2004 issued by the Secretary of

the District Soldier Board Jhunjhunu as to this effect is being filed here

with and marked as Annexure -7 of the writ petition.

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9. That on 22nd April, 2004 records officer of RAJRIF informed that until the

documents sought by the record office is not provided; it would not be

possible to proceed in the matter of pension case of the petitioner. A

Photostatted copy of the letter dated 22nd April, 2004 issued by the records

officer of the Rajputana Rifles as to this effect is being filed here with and

marked as Annexure -8 of the writ petition.

10. That on 16th August, 2004 C.G.D.A. New Delhi Informed to the senior

records officer of the RAJRIF that the matter of family pension may kindly

be looked in to and required documents may kindly be furnished to the

office of the record of RAJRIF. A Photostat copy of the letter dated 16th

August, 2004 issued by the C.G.D.A. New Delhi to the records officer of the

Rajputana Rifles as to this effect is being filed here with and marked as

Annexure -9 of the writ petition.

11. That again on 6th May, 2005 the records officer of Rajrif reiterated to the

petitioner that at the time of death petitioners husband was not drawing any

pension therefore she does not have any claim for the family pension, he

further advised to the petitioner for making a request to the officials of the

state Govt to apply for the financial aid to the widows of the ex-servicemen

as well as war widows. A Photostatted copy of the letter dated 6th May,

2005 issued by the records officer of the Rajputana Rifles as to this effect

is being filed here with and marked as Annexure -10 of the writ petition.

12. That again on 8th January 2006 the records officer of Rajrif again asked for

the submission of the documents for consideration of the pension to the

petitioner, he further informed that in case she fails to submit the required

documents with in thirty days her case will be closed. A Photostatted copy

of the letter dated 8th January, 2006 issued by the records officer of the

Rajputana Rifles as to this effect is being filed here with and marked as

Annexure -11 of the writ petition.

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13. That again on 4th April, 2006 the records officer of the RAJRIF again asked

for the submission of the LTA certificate for consideration of the case of

family pension of the petitioner, he further informed that as earliest as

possible the LTA certificate be provided thereof and thereby the case may

be proceeded. A Photostat copy of the letter dated 4th April, 2006 issued

by the records officer of the Rajputana Rifles as to this effect is being filed

here with and marked as Annexure -12 of the writ petition.

14. That on 16-05-2006 petitioner made a request that her husband was

drawing pension from DPDO Jaipur office in case LTA certificate is

essential it may be obtained from the said office. In case it is not possible

to obtain it from the office of DPDO Jaipur, it may kindly be dispensed with.

A Photostat copy of the letter dated 16.05.2006 submitted by the petitioner

as to this effect is being filed here with and marked as Annexure -13 of the

writ petition.

15. That again on 1st November, 2006 the records officer of Rajrif informed that

the claim has been returned by PCDA(P) Allahabad, he again asked for the

submission of the LTA certificate for consideration of the case of family

pension of the petitioner, he further informed that as earliest as possible

the LTA certificate be provided thereof and thereby the case may be

proceeded. A Photostat copy of the letter dated 1st November, 2006 issued

by the records officer of the Rajputana Rifles as to this effect is being filed

here with and marked as Annexure -14 of the writ petition.

16. That again on 1st December, 2006 the records officer of Rajrif informed

again that the claim has been returned by PCDA(P) Allahabad, he again

asked for the submission of the LTA certificate for consideration of the case

of family pension of the petitioner, he further informed that as earliest as

possible the LTA certificate be provided thereof and thereby the case may

be proceeded. A Photostat copy of the letter dated 1 st December, 2006

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issued by the records officer of the Rajputana Rifles as to this effect is

being filed here with and marked as Annexure -15 of the writ petition.

17. That again on 19th December, 2007 the records officer of Rajrif informed

again that the claim has been returned by PCDA(P) Allahabad, he again

asked for the submission of the LTA certificate for consideration of the case

of family pension of the petitioner, he further informed that as earliest as

possible the LTA certificate be provided thereof and thereby the case may

be proceeded. A Photostat copy of the letter dated 19th December, 2007

issued by the records officer of the Rajputana Rifles as to this effect is

being filed here with and marked as Annexure -16 of the writ petition.

18. That in the mean time petitioner submitted an affidavit wherein she

narrated that her husband was drawing pension from DPDO, Jaipur, She

has not got married again after the death of her husband. A Photostat copy

of the affidavit dated 17.11.2006 duly attested by the Executive Magistrate

as to this effect is being filed here with and marked as Annexure -17 of the

writ petition.

19. That the relevant rules from the Pension Regulations for the Army Part I

are being reproduced for the ready reference of this Hon’ ble Court as

herein after :-

REGULATIONS 173 - Unless otherwise specifically provided, a disability

pension may be granted to an individual who is invalided from service on
account of a disability which is attributable to or aggravated by military
service & 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.

APPENDIX II
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Rule -1 An individual who at the time of his release under the

Release Regulations is in a lower medical category that in which he was
recruited will be treated as invalided from service.

Rule -4 In deciding on the issue of entitlement all the

evidence, both direct and circumstantial, will be taken into account and the
benefit of reasonable doubt will be given to the claimant. The benefit will be
given more liberally to the claimant in field service cases.

Rule 6 (a) (i) Injuries sustained when the man is on duty will be deemed to
have arisen in or resulted from military service but in cases of injuries due
to serious negligence/ misconduct, the question of reducing the pension
will be considers.

Rule 7 (b) - A disease which has led to an individual’s discharge or death

will ordinarily be deemed to have arisen in service if no note of it was made
at the time of the individual’s acceptance for military service. However if
medical opinion hold, for reasons to be stated, that the disease could not
have been detected on medical examination prior to acceptance for service
the disease will not be deemed to have arisen during service.

Pension Regulations for the Army Part II

Regulations 2 - All officers dealing with pension claims shall bear in mind
that delay in the payment of pension may involve great hardship and shall
do everything in their power to prevent or shorten to the utmost such
delays.

Regulations 20 -The procedure to be followed for the submission and

disposal of applications for various pensioners’ awards shall be as laid
down in Table IV.

TABLE IV
Item Nature of Forms of application to whom Remarks
No. Claim and supporting Application
Documents Should be
Submitted
4 Disability (i) Invaliding medical board from the record
Pension proceedings – AFMSF -16. officer to the
(ii) Medical categorisation forms. Controller of
(iii) Medical History Envelope Defence
with other medical documents. accounts
(iv) Service and casualty form, (Pension)
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(v) Injury report

(vi) Extracts from part II orders
(vii) Sheet Roll
(viii) Last Pay certificate

Regulations 83 - Save as otherwise provided in Section II and III rd

(A) First claim for pension or allowance and claims for gratuity under
these Regulations, preferred within 12 months of the date on which
they fall due shall be entertained and paid with full arrears, it
otherwise in order :

(B) Those which are not preferred within that period may be admitted with
full arrears, if the pension sanctioning authority concerned is satisfied
with the claimant’s explanation for the delay in their submissions; if he
not satisfied with the explanation , claims shall be submitted for orders
of the Government.

Regulations - 90 - The term “claimant” for the purpose of regulations 83,

88 and 89 shall mean Record Officer.

20. That no formal application is required from the petitioner for the grant of

disability pension/ injury pension. The officer -in- charge, Records, RAJRIF Centre Delhi

Cantt. (NP5) , who is claimant in this case was promptly to forward the petitioner’s case

to the CDA (P) (NP4) for grant of disability pension as per Regulations 2, 20, 83, 90 and

Table IV of the Pension Regulations for the Army part II, respondents not only failed to

carry out the statutory duty cast up on them but did not even act correctly and submit the

petitioners case to the PCDA (P) for adjudication of his disability pension claim in spite

of petitioner’s several representations.

21. That rejection of the petitioner’s disability claim on the ground that since the

petitioner was discharged on account of war injury i.e. invalided out from

the army and was granted disability pension which was assessed later on

less than 20% that is why he is not being granted disability pension. The

action of Officer – in – Charge, RAJ RIF Regiment Abhilekh Karyaylaya

(Records) Delhi Cantt. - 10 is arbitrary, erroneous, contrary to the rules

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and settled proposition of law laid down by the Hon’ble Supreme Court

and Hon’ ble High Courts as brought out hereinafter : -

22. The petitioner was enrolled in Army in Category A, suffered injury during

world war second 1945 and discharged from service on account of war

injury medical category 3, he is fully entitled for grant of disability pension

as per Regulation 173 read with Rules 1, 4, 6 (a), 7 (b) of Appendix II to the

pension regulations for the army Part I and law laid down by the Hon’ble

courts.

23. That a large number of similarly situated persons have been granted

disability pension but the petitioner is being discriminated in violation of

articles 14, 16 and 300-A of the Constitution of India.

24. That under the regulation no formal application is required from the

petitioner for grant of disability pension, the Officer Incharge Records,

RAJRIF Regiment Centre Delhi Cantt. (NP5), who is claimant in this case

is required to promptly submit the disability pension claim of the petitioner

to PCDA (P) (NP4) as per the rules authority has not only failed to carry out

the statutory duty cast on him but has not even acted correctly in spite of

petitioner’s repeated requests.

25. That the Officer Incharge Records, RAJRIF Regimen Centre Delhi Cantt.

(NP5) is not competent to decide about the eligibility of the petitioner for

grant of the disability pension but has to submit the petitioner’s case to the

PCDA (P) for adjudication as per the rules but NP5 has not submitted his

case for adjudication to the PCDA (P) and failed to act as per the mandate

of Army Pension Regulation, 1940 as well as new Pension Regulation for

Army, 1961 rules.

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26. That in a catena of cases this Hon’ble Court has ordered to release the

disability pension in an exact identical case of Chhagan Kanwar Vs Union

of India 2004 RDD41 CD (Raj.) his Lordship of this Hon’ ble Court Hon’ ble

Justice Shri Ashok Parihar observed and held in Para 4 to 6 as under that

Para 4 :- Learned Counsel for the respondents submitted that the above

Army Instructions of the year 1975 were to take effect from 01.01.1973 i.e.

The same will apply to all those who were in the effective strength of army

on that date and who became non effective thereafter.

Para 5 :- On the other hand, Mr. Bhadauria, learned Counsel for the

petitioner submitted that the above instructions issued on 19.12.1975 came

to be challenged before Allahabad High Court to the extent of fixing the cut

off date as 01.01.1973. Reference has been made to 1993 (III) CSJ 49

(HC), Ram Roop Singh vs. Union of India & Ors. A copy of the

judgment has also been placed on record. In the above judgment, the

learned Single Judge of the Allahabad High Court, relying upon the

judgment of the Supreme Court in the case of D.S. Nakara, quashed the

cut off date i.e., 01.01.1973, as referred in the Circular dated 19.12.1975

and held that the Army Instructions dated 19.12.1975 must be applied to all

covered by it whether retired before or after 01.01.1973.

Para 6:- In the present case, the concerned employee has been denied

disability pension for the period from 17.11.1975 till 19th June, 1999. As

such, as per the circular referred above, he was entitled for service element

for the above period.

Para 7:- Accordingly, their writ petition is partly allowed. The respondents

are directed to make the payment of service element which the concerned

employee was entitled for the period from 17.11.1975 till 28th June, 1999 to

the petitioner after calculating the same as per the instructions and
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regulations as applicable on such employees. Necessary calculation be

made and due amount be paid to the petitioner within sixty days from the

date of receipt of certified copy of this order. If family pension has yet not

been paid, the same will also be paid with arrears within the aforesaid

period. There is nothing on record to show that the judgment of Allahabad

High Court in Ram Roop Singh’s case has further been challenged by the

respondents. As such, it was duty of the authorities of the respondents to

automatically give such benefit to all similarly situated concerned

employees irrespective of their applying for the same or not. Such duty has

been cast on the authorities under the Army Act and Regulations itself.

After retirement or discharge on any ground whatsoever most of the

persons settle in their remote native places and are not aware of their

rights accruing after retirement. Considering entire facts and

circumstances, I deem it proper to allow a cost of Rs. 2000/- also to the

petitioner, which may be paid along with arrears as ordered above.

27. That in similar case of Smt. Teeja Devi Vs. Union of India 2005(8)

RDD3028 (Raj.) his Lordship of this Court Hon’ ble Justice Shri Shiv Kumar

Sharma observed and held in Para 6 to 10 as under that.

Para 6:- Allahabad High Court in Ram Roop Singh vs. Union of India &

Ors., 1993 (III) Current Service Journal 49, in Para’s No. 13, 14 and 15

indicated thus: I find sufficient force in the contention of the learned

Counsel for the petitioner. The Supreme Court while examining the validity

of Ministry of Finance Memorandum No. F-19 (3). EV 79 dated 25.05.1979

and Ministry of Defence Memorandum No. B. 40725/AG/P34-C (1816/AD

(Pension), dated 28.09.1979 in the case of D.S. Nakara held that

classification of pensioners who retired subsequent to that date was

arbitrary and violative of Article 14 of the Constitution. It further observed

that the date of retirement for the purpose of payment of liberalised pension
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was not a relevant factor when a revised formula for computation of

pension was introduced and made effective from a particular date. It further

held that there was no intelligible differentia between the persons who

retired prior to that date and those who retired after that date. The Supreme

Court relied on its earlier judgment in the case of Ram Krishna Dalmia vs.

S.R. Tendolkar, AIR 1958 SC 538 and further emphasised that the

classification on the basis of the date of retirement was wholly illegal and

violative of Article 14 of the Constitution.

14. The facts of the present case and those in the case of D.S. Nakara

bear similarity. Respondents have failed to show any distinguishing feature

for not giving the benefit of above mentioned Army Instruction to the

petitioner which has been denied to him simply for the reason that the

petitioner had retired prior to 01.01.1973. Learned Counsel too was at his

wits end in finding out any distinguishing feature to support the date fixed in

the Army Instruction and save it from the vice of arbitrariness and

unreasonable classification, which is forbidden by the Constitution under

Articles 14 and 16. In my opinion, persons boarded out of army service for

reasons wholly attributable to army service prior to 01.01.1973 and those

boarded our for the same reasons after 01.01.1973 do not constitute

different classes so as to justify applicability of the Army Instruction No.

4/S/75 dated 19.12.1975 to only those who are boarded out from active

army service after the date. The Army Instruction dated 19.12.1975,

therefore, must be applied to all covered by it whether retired before or

after 01.01.1973. .

15. All those boarded out from the service for the same reason after or

before that date fall in the same class and bear similarity to each other and,

therefore, their classification for the purpose of payment of pension is not

justified on the basis of the date of retirement which has no relation to the

object of payment of pension which is sought to be achieved in the

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aforesaid Army Instruction. I, therefore, hold that the date (01.01.1973)

fixed for the applicability of the Army Instruction No. 4/S/75 dated 19th

December, 1975 is violative of Article 14 of the Constitution and is,

therefore, liable to be quashed. I, therefore, quash the penultimate

sentence in Para 1 of the Army Instruction No. 4/S/75 dated New Delhi,

December 19, 1975 which is to the following effect:

“”These orders will take effect from 1st January, 1973, i.e., these will apply

to all those who were on the effective strength of the Army on that date and

who became non-effective thereafter.””

and direct that the said Army Instruction shall be applicable to all army

personnel covered by it regardless of the date of their retirement."

Para 7:- Evidently Army Instruction No. 4/S/75 dated December 19, 1975

which contain the sentence "These orders will take effect from 1st January,

1973, i i.e., these will apply to all those who were on the effective strength

of the Army on that date and who became non-effective thereafter" was

found violative of Article 14 of the Constitution and a direction was issued

that the said Army Instruction shall be applicable to all army personnel

covered by it regardless of the date of their retirement.

Para 8:- In the instant case the disease suffered by the petitioner during

and in the course of service was attributable to military service, as such the

petitioner was fully entitled to disability pension and service element. In the

instant case the judicial pronouncement granting service element of

pension to all ex-servicemen irrespective of their date of retirement came to

be pronounced during 1992 in the case of Ramroop Singh vs. Union of

India, reported in 1993 (III) CSJ (HC) 49 (Allahabad). Therefore the

relief sought by the petitioner cannot be denied.

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Para 9:- As already noticed the policy decision was taken during 1975 that

person whose disability pension has been reduced below 20% and

resultantly their disability pension had been discontinued shall be granted

service element of pensions for life if the disability in question was

attributable to military service or aggravated thereby irrespective of length

of service. However, this decision was made effective from January 1,

1973 onwards and the persons retired prior to this cut off date were

deprived of such concession. This aspect of cut off date came to be

examined judicially in the case of Ramroop Singh vs. Union of India

(Supra), and it was held that all ex-servicemen shall be entitled to

pensionary benefits regardless to their date of retirement. Ratio indicated in

Ramroop Singh vs. Union of India (Supra), is squarely applicable to the

facts of the instant case. Further the respondents did not inform the

husband of the petitioner about discontinuance of the disability pension.

Since, the husband of petitioner was entitled for the pensionary benefits;

the petitioner is entitled for family pension. .

Para 10:- For these reasons, I allow the writ petition and direct the

respondents to grant the petitioner the benefits of family pension from the

date of death of her husband i.e. July 31, 1995. The respondents are

directed to comply with the order within ninety days from the date of receipt

of copy of this order. The parties shall bear their own costs.

28. That in similar case of Sepoy Hukma Ram Vs Union of India 2005(8)

RDD3033 (Raj.) his Lordship of this Hon’ ble Court Hon’ ble Justice Shri

Ajay Rastogi observed and held in Para 4 to 10 as under that.

Para 4:- According to him, cut off date i.e., 01.01.1973 referred to in the

notification is arbitrary and has no nexus with the object sought to be

achieved and all who have served the Army constitute one single class and

no differentia can be made so far as grant of disability and pensionable

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element of service is concerned and all such army personnel whose

disability has fallen below 20% prior to the cut off date are also entitled by

extending benefit of disability pension, consequently denial of pension to

the petitioner later by not extending such parity in no manner can be said to

have any nexus and is violative of Articles 14 & 21 of the Constitution of

India.

Para 5:- Shri Bhaduria placed reliance upon decision of this Court in Smt.

Sinokhi vs. Union of India, 2002 (3) RLR 184 and submitted that in the

case of Sinokhi (Supra), Notification dated 19.12.1975 came up for

consideration before this Court and cut off date 01.01.1973 as referred to

the Notification (Supra), has been held to be arbitrary and violative of

Articles 14 & 16 of the Constitution of India, and the directions have been

issued to the respondent for application of Army Instruction to all Army

personnel regardless of the date of their retirement. Relevant part of

observations made by this Court in the case of Smt. Sinokhi (Supra), reads

as under:- "10. Evidently Army Instruction No. 4/S/75 dated December

19, 1975 which contain the sentence "These orders will take effect from 1 st

January 1973, i.e., these will apply to all those who were on the effective

strength of the Army on that date and who became non-effective

thereafter." was found violative of Article 14 of the Constitution and a

direction was issued that the said Army Instruction shall be applicable to all

army personnel covered by it regardless of the date of their retirement."

Para 6:- The respondents have filed reply to writ petition. Shri Sanjay

Pareek, Counsel for respondents submitted that as per provisions of Army

instruction, benefit of pension has been extended to only those who have

retired on 01.01.1973 for which some cut off date has to be fixed.

Para 7:- However, it has not been disputed by Shri Pareek that self same

controversy raised in present petition with regard to cut off date of

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01.01.1973 as referred to in Notification dated 19.12.1975 has been

examined in the case of Smt. Sinokhi (Supra), and as a consequence and

in compliance thereof, benefit of pension thereafter has already been

extended to concerned writ petitioner.

Para 8:- Shri Bhaduria has also informed to this Court that the judgment in

the case of Smt. Sinokhi (Supra), has attained finality and no appeal has

been preferred against it.

Para 9:- In this view of the matter, in my opinion, no further adjudication

with regard to cut off date is required to be examined any further in the light

of decision of this Court in Smt. Sinokhi vs. Union of India (Supra),

Para 10:- Consequently, this writ petition is allowed. The respondents are

directed to allow the petitioner ordinary pension in accordance with Rules

along with all other consequential benefits. Compliance of the order be

made within three months. The parties shall bear their own costs.

29. That in similar case of Pratap Singh Vs Union of India 2005(8) RDD3161

(Raj.) his Lordship of this Hon’ ble Court Hon’ ble Justice Shri Ajay Rastogi

observed and held in Para 16 to 20 as under that.

Para 16:- Here I may hasten to observe that it has always to be kept in

mind and remembered that person does not acquire disability by choice

and individual who acquires disability must be protected by deserving

sympathetic treatment and not for himself but for his family also; and the

protection has to be provided which may serve purpose and object for

which disability pension is being extended to individuals. Beneficial

provision in this regard has been made by respondents providing disability

pension to such pensioners /individuals under Army Pension Regulations.

Para 17 :- For grant of disability pension, object behind it is that those who

served defence service and because of disability, when one becomes

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incapable for army service and alternative employment in his

trade/category suitable to his nature of duty is not available and the

decision is taken for his discharge from service, individual must be

provided with disability pension, and being a beneficial provision by this

mode, means can be provided for survival and to maintain his family by

way of grant of disability pension.

Para 18:- Keeping this object into consideration, in my opinion, Regulations

173 and 173-A deals in different sphere. Regulation 173 deals with all

kinds of disability where individuals are placed in either of the medical

category as defined in classification of disease appended to the Entitlement

Rules. But Regulation 173-A is only confined to such individual who are

placed in low medical category other than "E" (permanently) and

discharged form services since no alternative employment in his

trade/category is available and in such contingency, after being discharged

from army service, some means for livelihood has to be provided to them.

In my opinion, petitioner's case for grant of disability pension is covered

under Regulation 173-A and not under Regulation 173 as contended by

respondents and both the restrictions as referred to in Regulation 173 with

regard to disability being (a) attributable to or aggravated in army service,

and (b) assessed at 20% or over, cannot be made applicable for grant of

disability pension to such individuals who are covered by Regulation 173-A

of Army Pension Regulations. In the absence of which instead of achieving

the object of the beneficial provision it will defeat the very purpose for

which provision has been inserted by amendment in 1967.

Para 19 :- So far objection raised with regard to the delay in filing writ

petition is concerned, in my opinion, denial of disability pension to petitioner

for years was a continuous wrong and such action of respondents was in

breach of Articles 14 & 21 of the Constitution of India. It is the duty of

 19

respondents to have paid disability pension to petitioner when he was

discharged from service but he made representations to the authorities,

thereafter approached this Court by filing writ petition and in compliance of

direction given by this Court in his earlier writ petition, he was

communicated with impugned decision dated 10.01.1997 (Annexure-15).

This being continuous wrong, in present facts and circumstances, there

was no latches on the part of petitioner in approaching this Court and

immediately after he was communicated with decision (Annexure-15), he

preferred this writ petition. In such fact situation, preliminary objection

raised of laches on the part of petitioner in approaching this Court does not

have any merit and, therefore, stands over-ruled.

Para 20 :- Consequently this writ petition is allowed the decision of

respondents holding the petitioner not entitled for disability pension vide

order dated 10.01.1997 (Annexure-15) conveyed in consonance with

orders referred to in Annexure-15, is quashed and set aside. Respondents

are accordingly directed to release disability pension with all consequential

benefits to the petitioner in terms of Regulation 173-A of Army Pension

Regulations, 1961 with effect from the date he became entitled for such

pension, i.e., from the date he was placed in a low medical category CEE

(P) and discharged from service. Arrears of disability pension after its

computation in compliance of aforesaid direction be paid to petitioner within

three months, failing which he shall be entitled to interest towards arrears

of disability pension @ 9% p.a., thereafter. No order as to costs.

30. That in a similar case of B.L.Swarnkar Vs Union of India & ors 2005(9)

RDD3911 (Raj.) (DB) their Lordships of this Hon’ ble Court Hon’ ble Justice

Shri N.N. Mathur and Hon’ ble Justice Shri Gopal Krishna Vyas observed

and held in Para 4 to 7 of the judgement as under

 20

Para 4:- We have heard learned Counsel for the parties and considered

the rival contentions. Regulation 173 and Rule 7(b) of Appendix II

(Entitlement Rules) which has material bearing on the controversy are

extracted as follows:-

"173. Unless otherwise specifically provided a disability pension may be

granted to an individual who is invalidated from service on account of a

disability which is attributable to or aggravated by military service and is

assessed at 20 per cent or over."

"7(b). A disease which has led to an individual discharge or death will

ordinarily be deemed to have arisen in service if no note of it was made at

the time of individual's acceptance for military service. However, if medical

opinion holds, for reasons to be stated, that the disease could not have

been detected on medical examination prior to acceptance for service the

disease will not be deemed to have arisen during service."

A combined reading of the Regulation 173 and 7 (b) of Appendix II shows

that because of disability which has led to the person concerned being

discharged from service deemed to have arisen in service if no note of it

was made at the time of entry in the Armed Forces or that he was suffering

from such disability or unless a note is recorded at a subsequent date that

the disease in question was such as could not have been detected by

medical examination before he had joined the service. In the instant case,

there is no note in the service record of the appellant that at the time of

entry in Air Force he was suffering from such disability. Thus, it has to be

presumed that the disease the appellant suffered from and due to which he

was required to be discharged has arisen during his service on account of

stress, as such the same was attributable to his Air Force Service.
 21

Para 5:- As far as the decision of the Apex Court in Baljit Singh's case is

concerned, the same has no application to the facts of the case. It was a

case dealing with an injury and not the disease. Thus, the learned Single

Judge has committed an error in holding that the appellant has failed to

prove that disease is attributable to Air Force Service or has been

aggravated because of Air Force Service. In our considered the onus of

proof with regard to the claim to disability pension did not rest upon the

claimant and, in fact lay with the Air Force authorities in case his claim was

to be denied.

Para 6:- It is next argued by Mr. V.K. Mathur learned Counsel for Indian

Air Force that the appellant is not entitled to pension as he has not

completed 10 years of qualified service. It is not in dispute that the

appellant is short of 13 days of qualified service. There is a provision for

condonation of deficiency in service for eligibility to service/reservist

Pension Rules. Rules 114 and 115 reads as follows:-

"114. Except in the case of:

(a) An individual who is discharged at his own request.

(b) An individual who is eligible for special pension or gratuity under

Regulation 144, or

(c) An individual who is invalided with less than 15 years service, deficiency

in service for eligibility to service pension or reservist pension or gratuity, in

lieu, may be condoned by a competent authority up to six months in each

case."

"115. (a) Airmen who have former service to their credit may be allowed by

the competent authority to reckon to the extent specified in the table below

such service towards pension when earned by requisite qualifying service

subject to the fulfilment of the conditions stated in Column 4 of the table."

 22

Para 7:- It is submitted that the said rules has no application to disability

pension. Be that as it may, this Court in its equity jurisdiction has ample

power to condone the period of 13 days in exercise of powers under Article

226 of the Constitution of India to cover up the qualified period of service.

Accordingly, in order to secure ends of justice, we condone the short period

of 13 days and held the appellant qualified for disability pension.

Para 8:- Consequently, the special appeal is allowed. The order of the

learned Single Judge dated 17th September, 1997 is set aside. The writ

petition is allowed. The appellant will be entitled to disability pension under

the rules referred to above. The respondents are directed to pay disability

pension to the appellant from the date it fell due within a period of four

months from today. No order as to cost.

31. That in a similar case of Rampal Singh Vs Union of India AIR 1984 SC

504, who was injured in 1965 INDO –PAK war and discharged being found

un-desirable after repeated court martial, the Hon’ble Supreme court held

that he is entitled for disability pension, interest and some compensation for

the harassment as also the costs of litigation.

32. That in the case of Ex – Subedar Baljor Singh Vs Union of India 1997

(6) SLR 368, who was denied disability pension on the ground that he was

discharged from service on his own request before completion of the

prescribed service /age, it was held that impugned orders which proceed

on the basis that it was a simplicitor voluntary discharge and not discharge

on medical grounds being bad in law are liable to be quashed and set

aside and the petitioner is entitled to the disability pension.

33. That it has been further held in case of Lt Col B S Melhotra Vs Union of

India – 1968 (2) SLR 81 that people who become disabled due to military

service are a class apart , they cannot be discriminated nor denied

 23

disability pension on the ground of voluntary retirement, the disability does

not cease on voluntary retirement.

34. That in case of Karan Singh Vs Union of India 2000 (2) SLR 87, the

petitioner who suffered a bullet injury in 1965, was allowed disability

pension along with interest.

35. That in case of Ramkumar Singh Vs Union of India – SBCWP No. 4904/97

decided on 27 Mar 99, who was injured during INDO-PAK war 1965 and

denied disability pension on the ground that he was discharged on his own

request on compensate grounds, was held entitled for disability pension

with cost and interest by this Hon’ble Court.

36. That the petitioner’s husband’s case for disability pension was being

examined by the Army Headquarters but in the mean time he expire on

2.09.1998 but even today the decision of Army Headquarters has not been

communicated to the petitioner. Photostatted copy of death certificate of

the petitioners husband dated 2.09.1998 issued by the Tehsildar has been

filed here with and marked as ANNEXTURE - 4 of the writ petition.

37. That on 6-04-2009 petitioner served up on the answering respondents a

legal notice for want of Justice through her counsel, Photostatted copy of

legal notice for want of Justice dated 6.04.2009 is being filed here with and

marked as ANNEXTURE – 18 of the Writ Petition.

38. That the petitioner has to support her family, children and she is not able to

earn her livelihood and has no other source of income.

39. That the following documents relevant and essential in the case of the

petitioner have not been supplied to her in spite of repeated requests :-

I. Enrolment form.
 24

II. Sheet Roll.

III. Service and casualty form

IV. Injury Report.

V. Details of filed service.

VI. Details of hospitalisation.

VII. Medical documents including AFMSFs 2A, 15, 15A, 16, 16 and 81.

40. That the petitioner in such circumstanced has no alternate by efficacious

speedy remedy except to approach this Hon’ ble court for redress of her

grievances under Article 226 of the Constitution of India. Since feeling

aggrieved by the action of the non-petitioners is not sanctioning disability

pension to the petitioner, the present writ petition is being preferred on the

basis of following grounds amongst other:-

Grounds:-

A. Because the petitioner is lawfully entitled for grant of disability pension as

per the rules w.e.f. 20th December 1949 therefore, depriving him of his right

to the same is not only illegal and arbitrary but also unconstitutional and

non-petitioners cannot be allowed to act in such illegal manner.

B. Because, the pension is a fundamental right and properly in the hands of

the petitioner as per the law laid down by the Hon’ble Supreme Court and

non-payment of pension violates his fundamental right guaranteed under

the frame work of the constitution of India.

C. Because, sanction of disability pension has been accorded by the

department of respondents many similarly situated persons are getting

disability pension but the petitioner is being denied the same without any

rhyme or reason, and violates his right of equality guaranteed under the

articles 14 and 16 of the constitution of India,

 25

D. Because, this Hon’ble Court in various such cases has been pleased to

declare various individuals eligible for grant of disability pension as

narrated in the foregoing Para’s of the writ petition.

E. Because, the Hon’ble Supreme Court has been pleased to held in case of

M.S. Shekhawat Vs Union of India reported in JT 1997 (6) SC 116 that it is

duty of the court to interpret a provision specially a beneficial provision

liberally so as to give it a wider meaning rather to give a restrictive meaning

which would negate the very object of the rules.

F. Because the petitioner is fully entitled for grant of disability pension as per

the rules and law laid down by the Hon’ble courts as detailed out in his

petition and legal notice for demand of justice dated 6-04-2009 (Annexure -

18) but the petitioner case has been rejected for no reason even without

submitting for adjudication by the competent authority.

41. That the petitioner has not filed such other writ petition earlier to it before

this Hon’ble court.

42. That the petitioner has no alternative for redress of his grievances except

approaching this Hon’ble court by way of filing the present writ petition.

43. That the petitioner craves leave of this Hon’ble court to urge the further and

addition grounds at the time of hearing of this writ petition.

Prayer

It is , therefore , most humbly prayed that your lordship be pleased

to call for entire records of the case pertaining to the petitioner from the

respondents , examine the same in detail and accept / allow this writ

petition and further be pleased to :-

(I) Issue an appropriate writ, order or directions in the nature of Mandamus

commanding the respondents thereof and thereby the action of the

 26

respondents in discontinuing the disability pension permanently of the

petitioner w.e.f. 8th February, 1956 may kindly be declare to be wholly

illegal, arbitrary, unreasonable.

(II) Issue an appropriate writ, order or directions thereby respondents may

kindly be directed to grant the disability pension to the petitioner w.e.f.

w.e.f. 8th February, 1956 and pay the arrears thereof with 24% interest to

the petitioner and also supply the copies of the relevant documents.

(III) Issue an appropriate writ, order or directions thereby respondents may

kindly be directed to grant the Service Element Pension to the petitioner

w.e.f. 4.10.1945 and pay the arrears thereof with 24% interest to the

petitioner.

(IV) Issue an appropriate writ, order or directions to the non- petitioners to pay

compensation of Rs. 1, 50,000 /- to the petitioner for delaying payment of

his disability pension w.e.f. 8th February, 1956

(V) Issue such other writ, order or directions as may be deemed just and

proper by this Hon’ble court in the facts and circumstances of the case and

in favour at the petitioner.

(VI) Cost of the writ petitioner be awarded to the petitioner.

Jaipur. Humble petitioner

Dated: Through her Counsel

(Rohitashw Kajla, Anil Upmanyu)

Advocate.
 27

NOTES:

1. That, this is a S.B. Civil Writ Petition and the virus of any Act or
Ordinance or Rules have not been challenged in this writ petition.

2. That petitioner has not filed any similar writ petition before this Hon’ ble
High Court or the Hon’ ble Supreme Court of India prior to this one.

3. That, PF, notices and extra sets shall be filed within the stipulated time
as per the orders of this Hon' ble court.

4. That, pie papers are not readily available hence this writ petition has
been typed on stout papers.

5. That, this writ petition has been typed by my private steno in my office it
has not been typed any of the employees of this Hon' ble court.

Counsel for the Petitioner

 28

I
N THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH JAIPUR

S.B. Civil Writ Petition No……………………….…...……………….…...……/2009

Smt. Jyana Devi

Versus

The Union of India & ors.

AFFIDAVIT IN SUPPORT OF WRIT PETITION

I, Smt. Jyana Devi Age about 75 years, widow of Ex-Rfn No. 2078 Late

Shri Jagna Ram Resident of Vill. Marot P.o. Islampur, via Baggar, Tehsil &

Distt. - Jhunjhunu, Rajasthan – 333001. do hereby take oath and solemnly

affirm as under.

1. That, I am the petitioner in the present case and am well conversant with

the facts and circumstances of the case.

2. The annexed writ petition has been drafted by my Counsel on my

instructions and I have read over the contents thereof which has been

explained to me in Hindi and I am fully satisfied thereof.

3. That, the contents of Para Nos. 1 to 43 along with grounds from (A) to (F)

of the annexed writ petition are true and correct to the best of my personal

knowledge, records and legal advice.

Deponent
 29

VERIFICATION

I, the above named deponent do hereby verify on oath and state that the

contents of Para Nos. 1,2 and 3 of this affidavit are true and correct to the

best of my personal knowledge, records and legal advice, No. Part of it is

false and nothing material has been concealed in it and no part of it is

false. So help me God.

Jaipur

Dated:

Identified by: Deponent

(Rohitashw Kajla, Anil Upmanyu)

Advocate
 30

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH JAIPUR

S.B. Civil Writ Petition No……………………….…...……………….…...……/2009

Smt. Jyana Devi

Versus

The Union of India & ors.

AFFIDAVIT IN SUPPORT OF DOCUMENTS

I, Smt. Jyana Devi Age about 75 years, widow of Ex-Rfn No. 2078 Late

Shri Jagna Ram Resident of Vill. Marot P.o. Islampur, via Baggar, Tehsil &

Distt. - Jhunjhunu, Rajasthan – 333001. do hereby take oath and solemnly

affirm as under.

1. That, I am the petitioner in the present case and am well acquainted

with the facts and circumstances of the case.

2. That the annexed document Annexure No. 1 is Photostatted copy of

Discharge Certificate Dated 2.04.1986 and Annexure No. 4 and 18

are death certificate and notice for want of justice and remaining

documents annexed to the writ petition is true and exact

Photostatted copy of their originals.

Deponent
 31

Verification

I, the above named deponent do hereby make oath and verify that

the contents of Para Nos. 1 & 2 of this affidavit are true and correct

to the best of my personal knowledge, records and legal advice. No

part of it is false and nothing material has been concealed. So help

me God.

Jaipur

Dated: Deponent

Identified By:

(Rohitashw Kajla, Anil Upmanyu)

Advocate