- (1.) R. R. Yadav, J. The core question involved in the instant writ petition is whether petitioner is entitled to receive disability pension for the injury "sensory Neural Deafness" (both ears) sustained by him on 22nd August, 1984, while taking part in navigation competition orgainized by Headquarter 23, Inf. Division.
(2.) I have Heard the learned counsel on both sides at length and after hearing following order was dictated in Court today, which reads thus: "the instant writ petition succeeds and is allowed with special cost of Rs. 10,000/-to the petitioner for insensitivity of the respondents refusing disability pension to the petitioner for such a long time which he was entitled to receive even on the basis of the counter affidavit filed by the respondents. The order impugned dated 19-9-1986 (Annexure-6) to the writ Petition) and appellate communication order dated 30-4-1987 (Annexure-7 to the writ petition) are hereby quashed. The petitioner is entitled to receive arrears of disability pension after computing it in accordance with law for the injuries sustained by him attributable to Military Service from the date of his discharge, i. e. from 27-6-1986 with 12% interest per annum thereon from the date of his entitlement till actual payment is made to him and the respondents are mandated to pay disability pension to the petitioner month by month. The respondents are directed to make compliance of the order passed today within three months from the date of receipt of a certified copy of this order. The detailed reasons will follow later on. " Now I propose to give detailed reasons for the aforesaid conclusions in the backdrop of factual matrix of the case on hand as averred in the writ petition by the petitioner and in return filed by respondents. The brief facts necessary for just decision of this case are that the petitioner was selected and enlisted in the Indian Army on 2nd March 1982 and thereafter he was posted in 65 Mountain Regiment and served the Regiment till 1984. In the year 1984, the Mountain Regiment was deployed in Hillock Features around Ramgarh Valley. The petitioner had sustained an injury "sensory Neural Deafness" (both ears) on 22nd August, 1984 while taking part in navigation competition organized by Headquarter 23, Inf. Division. The petitioner was treated in Army Regiment Medical Unit and later on in the Military Hospital. The treatment of the petitioner went on and at later stage he was confined in Military Hospital at Namkum for intensive treatment running into eight weeks. Ultimately he was medically boarded out on 27th June 1986 with 80% disability. Consequent thereof he was discharged on the same day, a copy of discharge order dated 27th June 1986 is filed and marked as Annexure-1 to the writ petition.
(3.) IT is evident from perusal of discharge order (Annexure-1 to the writ petition) that while discharging the petitioner from military service it was recorded that he is unfit for re-employment in Defence Security Corps (D. S. C. ). The character of the petitioner was recorded in Discharge document (Annexure- 1 to the writ petition) as very good. After service of notices on respondent they have filed a joint return admitting that the petitioner was employed in the Regiment of Artillery and he was invalided out of service with effect from 27th June, 1986 due to a disease "sensory Neural Deafness" (both ears) under Rule 13 Item III (iii) of Army Rules, 1954. The duly constituted Invaliding Medical Board arranged on the petitioner at Military Hospital Namkum on 1st April 1986 to asses the cause, nature and degree of disablement had viewed the disability as neither attributable to nor aggravated by military service and assessed the degree of disablement at 80%. It is averred in the counter affidavit filed by respondents that disability pension is sanctioned under Regulation 173 of Pension Regulations for the Army Part-1, 1961, which is a statutory provision. The grant of disability pension is considered by the Chief Controller of Defence Accounts (Pension ). Allahabad in consultation with Medical Advisors on Pension, who are appointed by the Director General Armed Forces Medical Services, New Delhi. Since the disability of the petitioner was considered as neither attributable to nor aggravated by the Military Service, the grant of disability pension was denied with an opportunity to appeal against the decision of the Chief CDA (P), Allahabad within a period of six months from the date of rejection of his disability pension claim by the Chief CDA (P) Allahabad on 19th September, 1986. It is averred in the counter affidavit that the appeal submitted by the petitioner was considered by Government of India Ministry of Defence, but the same was dismissed, a true copy of the communication order dated 30th April, 1987 is filed and marked as CA-1 to the writ petition.;