Decided on January 11,2007

Union of India And Ors Respondents


- (1.) On 13.06.1974, the petitioner was enrolled in the Indian Army Bombay Engineer Group. He was subjected to medical and physical tests of stringent standards and was found fit in all respects and in medical category AYE in accordance with medical rules. The petitioner had an unblemished service record and he performed his service without any physical disablement and because of his sincere work, he was promoted to the rank of Subedar on merit. During his tenure, he was posted at various stations of high altitude border areas and was exposed to stress and strain of service. During this long span of service career, in the year 2000, the 26th year of his service when the petitioner was performing his duties at Bikaner soon after his posting from Operation Rakshak (Jammu and Kashmir), he was detected as a case of Niddm and his medical category was downgraded by a duly constituted medical board. He was given treatment but in July, 2001, the petitioner was diagnosed with Acute Anterior Wall Myocardial Infraction . As a result of the above diseases, the petitioner was discharged from service under Rule 13(3) Item (I) iii on 31.5.2002, after putting in nearly 28 years of service. The petitioner, thus, during the course of service, claims to have suffered both the above diseases despite which the petitioner was not granted disability pension as neither attributable to nor aggravated by military service. According to the petitioner, he had an excellent service career of 27 years 11 months and 17 days right from the year 1974 till the year 2002 when he was invalided/discharged under permanent low medical category. The petitioner pursued his case for grant of disability pension which was rejected on the basis of the opinion of the Medical Advisor (Pension) who according to the petitioner never examined the petitioner. This was again of no effect and consequence. Against the rejection of the disability pension, the petitioner filed an appeal on 2.5.2003 on which no decision had been taken by the respondents for a considerable time, resulting in filing of the present petition wherein the petitioner prays that the order dated 21.2.2003, annexure P3 to the writ petition, be quashed and the respondents be directed to pay disability pension to the petitioner and also its arrears with interest @ 18% per annum. According to the petitioner, his appeal has not been decided by the competent authorities despite the fact that it has been pending with the said authorities for more than an year.
(2.) Be that as it may, the counsel for the petitioner has relied upon the recent judgments of a Division Bench of this Court in the cases of Sh. Navin Chandra v. UOI and Ors. 2006(7) AD (Delhi) 709, Ex. Cfn. Sugna Ram Ranoliya v. UOI and Ors. 132 (2006) DLT 544 (DB) and JC 264149M.Ex. Naib Sub Marut Sharan Tiwari v. UOI and Ors. 2006 (7) AD (Delhi) 410 to contend that the case of the petitioner is squarely covered for grant of disability pension as the disabilities of the petitioner are certainly attributable and in any case aggravated by military service. It is also contended by the counsel for the petitioner that the Medical Advisor to the Pension Authorities had no jurisdiction to reject the claim of disability of the petitioner. The order of the respondents rejecting the claim of the petitioner besides being arbitrary is entirely against the army rules and regulations.
(3.) Despite number of opportunities, no counter affidavit was filed on behalf of the respondents. Records were also not produced before us.;

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