- (1.) R. B. Misra, J. In this petition prayer has been made to quash the discharge order contained in Annexure-1 to the writ petition with a further prayer seeking direction to the respondents to pay the petitioner disability pension.
(2.) HEARD Mrs. Anita Tripathi, learned Counsel for the petitioner and Sri Ashok Singh, Additional Standing Counsel for Union of India. Brief facts necessary for adjudication of the writ petition are that the Ex. No. 6303774 Sigmn Ram Kishun Yadav, the petitioner, joined the Indian Army on 2-5-1964 and was deputed to the Corps of Signals. He was discharged from service on 9-10- 1968 under item III (iii) of Rule 13 of the Army Rules 1954 after completion of 4 years and 161 days of regular service. The instant writ petition has been filed by the petitioner in the year 1992 claiming only disability pension after an inordinate delay of 24 years, for a disability as alleged by the petitioner to have occurred during Betwa Scheme of War Training. The petitioner was discharged w. e. f. 9-10-1968 by a duly constituted Medical Board held at Military Hospital, Babina on 22-7-1968 on account of his being suffering from Spondylo Arthrosis 738 and further the Medical Board having opined that the disease from which the petitioner was found to have been suffering had no relation with Army service, and also the C. C. D. A. (P), The Pension Sanctioning Authority, while rejecting the claim for disability pension, clearly opined that the disability of the petitioner was not attributable to the military service, being the primary condition for claim of disability pension as has been laid down in Para 173 of the Pension Regulations for the Army, 1961 (Part-1 ). An extract of the same is being filed herewith as Annexure R-1, which reads as below:- "pension REGULATIONS ARMY PART I (1961) 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 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. "
(3.) THE C. C. D. A. (P) had rejected the claim for disability pension of the petitioner on 10-10-1968 (photocopy of the order having been already filed as Annexure-1 to the C. A. ). Further the aforesaid fact of rejection of the disability claim had already been communicated to the petitioner vide letter dated 17- 12-1968 of the Signal Records (already filed as Annexure-II to the C. A. ). THE Pension Regulations for the Army, 1961 (Part-1) clearly mention that under APPENDIX-II (Entitlement Rules for Casualty Pensionary Awards 1982) Regulation 25, against the decision of the Pension Sanctioning Authority an Appeal shall lie to the Defence Minister's Appellate Committee on Pensions as provided under Reg. 25 (a ). The preliminary objections raised by the respondents are; (a) that the petitioner after having been invalided and discharged in the year 1968; chose to deliberately sit silent over the issue and then proceeded to file the instant writ petition after an inordinate delay of 24 years, that too filing the writ petition without any plausible explanation as to the long and inordinate delay. It would also not be out of place to mention here that the claim of disability pension of the petitioner too, had been rejected by the C. C. D. A. (P) on 10-10-1968 (Annexure-1 to the C. A.) and the same had been communicated to the petitioner on 17-12-1968 (Annexure-2 to the C. A.) wherefore the petitioner ought to have preferred an appeal against the said decision but he chose to sit quite over the issue in as much as he had been appointed as Civilian Switchboard Operator in the same Regiment and thereafter he filed the instant writ petition after a long unexplained delay of 24 years. (b) The remedy of Appeal under Regulation 23 is a statutory provision provided under the Pension Regulations for the Army 1961 (Part-1) under APPENDIX-II (The Entitlement Rules for Casualty Pensionary Awards 1981) and the petitioner could not have approached the Hon'ble Court without having exhausted the Statutory remedy of Appeal. (c) Since the rejection of his disability pension by the C. C. D. A. (P) in the year 1968, the petitioner since having been re-employed sat quiet over the issue and thereafter to construct a ground of challenge for filing of a writ petition, as a well orchestrated move, a sent a representation to the OIC Signal records Jabalpur on 7-3-1991 and thereafter on receipt of communication from the Record Officer, challenged the same in the year 1992, trying to make it a valid cause of action, whereas the communication was merely a repetition of the earlier communications by which the petitioner had already been informed of the rejection of his claim for disability pension by the Record Office as well as the C. C. D. A. (P) in the year 1968 itself. (d) The Supreme Court has clearly held in AIR 1976 SC 2617 (Para 6) State of Orissa v. Pyarimohan Samantray, and AIR 1976 SC 1689 (Para 14) State of Orissa v. Arun Kumar, that "making of repeated representation after rejection does not exonerate the delay in moving the Court", and the Court refused to interfere even when there was invasion of fundamental right, on the ground of latches acquiescence or delay on part of the petitioner. (e) In AIR 1975 SC 2243 (Para 26) it has been held that "the consideration upon which the High Court refuses to exercise its discretion in case of delay is not limitation but the matter relating to the conduct of parties. (f) In AIR 1979 SC 1713 (Para 11) the Supreme Court has held that "the proper standard however seems to be whether in the circumstances of the case the time that has elapsed can be said to be reasonable" or as whether the delay the delay has been explained properly as held in AIR 1985 SC 482, Arun Kumar Chatterjee v. S. E. Railway. Further in 1984 (3) SCC 362 (Para 8), Sri Vallabh Class Works v. U. O. I. , the Hon'ble Supreme Court has held that" the reasonableness has to be assessed by the Court having regard to the fact and circumstances of the case, touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opp. parties etc. (g) On the above touchstone, it may be mentioned that the conduct of the petitioner is not at all bona fide in as much as he has tried to brow-beat and mislead the Hon'ble Court concealing material fact of the rejection of his claim for disability pension by the C. C. D. A. (P) in the year 1968 itself and has tried to give it a colour as if his claim had been rejected in the year 1991 after his representation dated 7-3-1991 (Annexure-II to the writ petition ). Further, the writ petition does not have an iota of whisper and any explanation for the inordinate delay of 24 years since 1968 when his claim for disability pension was rejected by the C. C. D. A. (P) and thus the petitioner has not come to the Court with clean hands. On the contrary, he has tried to mislead the Court under the garb of his representation dated 7-3-1991 (Annexure-II to the writ petition) and reply thereto by the Record Officer (Annexure-III to the writ petition) giving it the colour of immediate cause of action, and also suppressing the fact of his having not filed any appeal, which was a statutory provision and could not have been by passed in view the judgment in MLJ 1997 Alld. 166, Ram Singh v. U. O. I and others.;