Vineet Saran, J. - (1.) The petitioner joined the Indian Army as a Nursing Assistant (Sepoy) on 15.1.1962. After completion of his training he was posted at the Military Hospital, Nasirabad, Rajasthan and thereafter in August, 1.903 was posted in the Field/Ambulance of U.P. Tibet Border. In the year 1905 the petitioner was posted at the Military Hospital, Jhansi and then in 1900 the petitioner was posted to high altitude area in Sikkim in snow bound areas. At the time of said posting, according to the petitioner, due to stress and strain of snow bound area, the petitioner developed some disease which could not be cured there and hence he was sent to the Command Hospital, Calcutta for treatment of his ailment. After due treatment, when the disease could not be cured, on the advice of the Medical Board constituted by the Army, the petitioner was placed in medical category "EEE". On such categorization and on the advice of the Medical Board, by order dated 25.4.1909 the petitioner was discharged from service on medical grounds. On 15.7.1909 the petitioner lodged his claim for payment of disability pension which was forwarded to the Controller of Defence Accounts (Pension), Allahabad. Since the petitioner did not hear anything from the Ministry of Defence, Government of India he sent an application, in response to which, by ' letter dated 3.2.1993, the petitioner was informed that his disability pension claim had been rejected by the Controller of Defence Accounts (Pension), Allahabad 13.8.1909. It has been averred in the writ petition that no such copy of the order rejecting his claim for payment of disability pension had ever been served on the petitioner. However, copy of such order has been filed alongwith the counter affidavit. In the aforesaid circumstances after having been informed that his claim had been rejected, the petitioner filed this writ petition in the year 1995 with a prayer for .a direction in the nature of mandamus to the respondents to pay disability pension as well as service ailment pension to the petitioner with effect from the date of his discharge from service alongwith all the arrears. A further prayer has been made for quashing the orders dated 13.8.1969 and 3.2.1993 and to give all benefits of disability pension to the petitioner alongwith entire arrears.
(2.) After exchange of.counter and rejoinder affidavits between the parties, this Court, vide its judgment and order dated 29.8.2001, dismissed the writ petition on the ground of laches, as the petitioner had approached this Court nearly 25 years after having been discharged from service on medical grounds. The petitioner challenged the said judgment and order dated 29.8.2001 passed in the writ petition by way of filing Special Appeal No. 644 of 2001. After considering the decision of the Apex Court in the case of M.R. Gupta v. Union of India and. Ors. AIR1996 SC 669 , [1995 (71)FLR886 ], 1996 LablC399 , 1995 (5)SCALE29 , (1995)5 SCC628 , [1995 ]Supp2 SCR852 , 1995 (2)UJ689 (SC) and that of the Delhi High Court in the case of Major Rajinder Singh v. Union of India and Ors. 2002 (2) E.S.C, 164, the Division Bench held that the order of the learned Single Judge dismissing the writ petition only on account of delay suffered from legal infirmity, and after setting aside the judgment and order dated 29.8.2001, directed that the writ petition be decided on merits.
(3.) I have heard Sri B.N.Rai, learned counsel appearing for the petitioner and Sri S.K. Rai, learned counsel appearing for the respondents and have perused the record.;