BALBIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Ex-Sepoy Balbir Singh, through present petition filed by him under Article 226 of the Constitution of India, seeks issuance of writ in the nature of certiorari so as to quash orders dated 14.8.1980 Annexure P- 1, 13.10.1982 Annexure P-2, 7.8.1991 Annexure P-4 and 2.12.2003, Annexure P-6. By various orders, referred to above, the petitioner has been denied disability pension from time to time. It is the case of the petitioner that his claim was first rejected on 14.8.1980 against which the appeal, that came to be filed, was also dismissed vide order dated 13.10.1982. It is not understandable as to under what provision, another appeal came to be filed, which was, indeed, entertained but dismissed vide order, Annexure P-4, dated 7.8.1991. After waiting for about 10 years, the petitioner served legal notice upon the respondents, which has been responded to once over again, declining disability pension, vide order dated 2.12.2003, Annexure P-6. A perusal of various impugned orders and, in particular order, Annexure P-4, dated 7.8.1991, vide which, second appeal of the petitioner was dismissed, would manifest he was enrolled on 17.5.1977 and invalidated out of service on 13.2.1980 on account of I.D. Hysterical Fits and the Medical Board, that was held on 13.2.1980, found the I.D. as unconnected with service and assessed disablement to be less than 20% (1-5%) (Learned counsel, however, states that some mistake has occurred in the order with regard to the extent of disability and the same is 11.25%). It has further been observed in order, Annexure P-4, that I.D. Hysterical Fit is a psychiatric disability and there was no evidence of service factors contributing to the onset of the I.D. or adversely influencing its subsequent course.

(2.) We have heard learned counsel representing the petitioner and examined the records of the case. The petitioner, in our view, is not entitled to disability pension on variety of grounds. It is too well settled and the rules say so, that no disability pension is to be granted if the extent of disability is less than 20% which in the present case is 1-5% only. It further appears to us that I.D. Hysterical Fit cannot be connected with the duties of the petitioner, which he had to discharge while in service and further that the petition is absolutely stale inasmuch as, the petitioner lost the matter with regard to grant of disability pension way back in 1980 regarding which, appeal was also dismissed in 1982.

(3.) Learned counsel representing the petitioner, however, relies upon a Division Bench judgment of this Court in Union of India v. Gurnam Singh,1998 2 RSJ 478, and on the basis thereof contends that in the absence of any note recorded at the time of individual's acceptance for military service, the disease which has led to the individual's discharge will ordinarily be deemed to have arisen in the course of service. The counsel, it appears, has missed the significant part of the judgment, which, in terms, says that the disease which has led to the discharge of an individual would ordinarily be deemed to have arisen in the course of service in the absence of any entry recorded at the time of his acceptance for military service. There can, however, be occasions, on which disease of an individual may not ordinarily come to the notice of the authorities while recruiting an individual to the service. To illustrate, the disease like Asthma, Epilepsy, may not come to the notice of the concerned authorities at the time of an individual entering into military service. It is for that reason that it has been held that ordinarily a person is entitled to disability pension in the absence of any entry recorded at the time of his acceptance for military service. As mentioned above, there can certainly be exceptions to the rule and the present seems to be a case of an exception indeed. The petitioner was boarded out of service on medical grounds as he was having I.D. Hysterical Fits and such a disease, it is possible, may not have been notified at the time of his recruitment in service.